CORNELL 
 
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 of Political Science 
 
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 The contributions of the landed man to c 
 
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 3 1924 030 453 934 
 
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THE CONTRIBUTIONS OF 
 
 THE LANDED MAN TO 
 
 CIVIL LIBERTY 
 
._ ..„%■ 
 
aa(Utatn0 College 
 
 DAYID A. WELLS PEIZE ESSAYS 
 
 l^umlier l 
 
 THE COXTRIBUTIOKS OF 
 
 THE LANDED MAI^ TO 
 
 CIVIL LIBEETY 
 
 BY 
 
 ELWIN LAWRENCE PAGE, B.A. 
 
 PRINTED FOR THE 
 
 DEPARTMENT OF POLITICAL SCIENCE 
 
 OF WILLIAMS COLLEGE 
 
 iSp Cl)e Kibersilie |Jresjf, CamittJiffe 
 
 1905 
 
 T 
 
 b.tC.r, 
 
f6 
 
 COPYBIGHT 1905 BY HENKY MJOMIS NBISON 
 AUi BIGHTS EESEBVBD 
 
INTRODUCTION 
 
 This is the first essay of a series to be known 
 as "David A. Wells Prize Essays." These 
 essays are to be printed under the direction 
 and editing of the David A. Wells. Professor 
 of Political Science, of Williams College, and 
 one is to appear during each year following 
 an award of the prize. The prize is $500 
 "in gold coin of standard weight and fineness, 
 or in the form of a medal of gold suitably in- 
 scribed, at the option of the recipient." Com- 
 petition is confined to those who are members 
 of the Senior Class when the subject for an 
 essay is announced, and to graduates of not 
 more than three years' standing. 
 
 The following provision of the will of the 
 late David A. Wells, the founder of the com- 
 petition, governs the committee in the selec- 
 tion of subjects and in the consideration of 
 essays : 
 
 "No subject shall be selected for competi- 
 tive writing or investigation and no essay shall 
 be considered which in any way advocates or 
 
vi INTRODUCTION 
 
 defends the spoliation of property under form 
 or process of law; or the restriction of com- 
 merce in times of peace by Legislation, except 
 for moral or sanitary purposes; or the enact- 
 ment of usury laws; or the impairment of con- 
 tracts by the debasement of coin; or the issue 
 and use by Government of irredeemable notes 
 or promises to pay intended to be used as cur- 
 rency and as a substitute for money; or which 
 defends the endowment of such 'paper,' 'notes' 
 and 'promises to pay' with the legal tender 
 quality." 
 
 HENRY LOOMIS NELSON, 
 David A. Wells Professor of Political Science. 
 
 Williams College, 
 WiLLlAMSTOWN, Mass., April 1, 1905. 
 
AUTHOR'S NOTE 
 
 As long as some of the earlier phases of Eng- 
 lish constitutional history remain so obscure 
 as to be the subjects of diverse opinions, no 
 study of a special influence in that history can 
 be definitive. Yet it may prove of some inter- 
 est, if not of profit, to get even an incomplete 
 view of the parts played by different classes 
 of men in the development of free institutions. 
 This paper is an attempt to set forth some of 
 the main contributions of the landed man to 
 constitutional growth. The author makes no 
 claim to originality; he has merely made a 
 brief review of the salient features of consti- 
 tutional history and collated facts stated and 
 opinions expressed by others, but in such re- 
 lation, he trusts, that the importance of this 
 particular influence may be somewhat ap- 
 parent. No attempt has been made to trace 
 any other influence, much less to compare this 
 with any other. The result is a lack of pro- 
 portion of which the reader will scarcely need 
 to be warned. If the author succeeds, how- 
 
Tiii AUTHOR'S NOTE 
 
 ever, in emphasizing the fact that to the landed 
 man we owe a very large share of the liberty 
 we now enjoy, the purpose of this study will 
 be answered. 
 
 The author desires to make acknowledge- 
 ment for valuable criticism and suggestions 
 received from Professor Henry Loomis Nel- 
 son, of Williams College, and to Dr. W. B. 
 Munro, late of the same college, but now of 
 Harvard University. He is indebted to Arthur 
 H. Chase, Esq., librarian of the New Hamp- 
 shire State Library, for courtesies extended, 
 also to Hon. Charles R. Corning, of Concord, 
 New Hampshire, for access to his private li- 
 brary. The libraries of Harvard College and 
 the Harvard Law School have also been freely 
 drawn upon. The works consulted are amply 
 cited in the foot-notes. 
 
CONTENTS 
 
 I. THE ANGLES AND SAXONS ON THE 
 
 CONTINENT 1 
 
 n. THE ANGLO-SAXONS IN ENGLAND . 16 
 
 in. THE NORMAN CONQUEST AND FEU- 
 
 DALIZATION 43 
 
 IV. JUDICIAL REFORMS— TRIAL BY JURY 68 
 
 V. THE STRUGGLE FOR MAGNA CARTA. 100 
 
 VL THE BEGINNINGS OF PARLIAMENT . 131 
 
 Vn. THE GROWTH OF PARLIAMENT . . 176 
 
 Vni. THE FINAL STRUGGLE FOR LIBERTY 218 
 
THE ANGLES AND SAXONS ON THE CONTINENT 
 
 The roots of English institutions strike under 
 the Channel and into Continental soil. Here, 
 among the German tribes whose hardy sons in 
 the fifth century began to conquer the island, 
 we must seek the origin of those customs whose 
 growth, as influenced by the landowner, we are 
 to attempt to trace. Of Celtic and Roman in- 
 stitutions nothing of importance is discernible 
 in later England. The inhabitants of the island 
 at the close of the Roman occupation, says 
 Lappenberg, were not Romanized; on the 
 contrary, the descendants of the conquerors 
 had become assimilated to the Britons.^ Rome 
 never whoUy prevailed, never entirely expelled 
 the old British institutions. Whatever savored 
 of Rome was annihilated by the gradual wane 
 of the imperial riile. The Saxons found only 
 Celtic institutions and allowed only the polit- 
 ically unimportant of these to survive.^ Free- 
 
 •* 1 Lappenberg, History of England under the Anglo-Saxon 
 Kings (Thorpe's Translation, Otte's revised ed. London, 
 1881), 157. 2 2 Lappenberg, 430. 
 
2 ANGLES AND SAXONS ON THE CONTINENT 
 
 man argues the practical extermination of the 
 Britons by the Saxons and the extinction thereby 
 of all Romano-Celtic institutions.^ Stubbs 
 concludes that "the Teutonic element is the 
 paternal element in our system, natural and 
 political,"^ and that the English possess "the 
 elements of primitive German civilization and 
 the common germs of German institutions."' 
 There are those who take the contrary position 
 that the Teutonic influences are not predomi- 
 nant, but they have their case yet to prove. In 
 accordance with what seems the more accepted 
 view, we will begin our study with the German 
 origins. 
 
 There are given us two sources of written 
 information concerning our German ancestors 
 and their customs. These are the Commeniarii 
 de BjbUo Gallico of Csesar and the treatise De 
 Situ, Morihus et Populis Germaniae of Tacitus. 
 Let us inquire what they have to tell us, for 
 some knowledge of the system they disclose 
 will be of value in following later developments. 
 
 In the first place we shall be curious as to 
 the nature of property in land, for it is about 
 
 ^ 1 rreeman, Norman Conquest, 16-20. 
 
 2 Stubbs, Select Charters (8th ed.) 3. 
 
 ® Stubbs, Constitutional History of England, § 1. 
 
ANGLES AND SAXONS ON THE CONTINENT 3 
 
 the landowner that our interest at present 
 centers. Csesar notes that the Germans de- 
 voted their whole life to hunting and warfare.* 
 They did not give close attention to agriculture, 
 and most of their food consisted of milk, cheese, 
 and flesh. Nobody had a field with a fixed 
 boundary, but the magistrates and chiefs each 
 year gave the tribes and families as much land 
 as they thought fit and the year after forced 
 them to move.^ Concerning the Suevi, the most 
 warlike nation, Csesar has much the same things 
 to relate. They had no private and separate 
 fields, nor were they permitted to remain in 
 one place for the purpose of residence more 
 than one year. Like the rest of the Germans, 
 they did not live much on corn, but for the most 
 part on mUk and flesh. They were given greatly 
 to hunting.' 
 
 If we are to accept this account as true, we 
 must conclude that in the first century before 
 Christ the Germans were a practically nomadic 
 race, for only as such would they give almost 
 no attention to agriculture, have no fixed 
 bounds to their fields, live on the produce of 
 the herd, spend their whole life in hunting and 
 
 * Csesar, Be Bello Gallico, vi, 21. 
 ^ Ibid, vi, 22. * Ibid, iv, 1. 
 
4 ANGLES AND SAXONS ON THE CONTINENT 
 
 warfare, and yearly move from place to place. 
 If they were nomadic, there would naturally 
 be no property in land, and the yearly allot- 
 ment would be merely a matter of temporary 
 convenience and conducive to domestic peace, 
 not an indication of ownership in anybody. 
 
 But the correctness of Caesar's story at this 
 point is open to serious questioning, Caesar 
 himself raises a doubt in our minds, for he tells 
 us that both the Germans in general and the 
 Suevi in particular were accustomed to lay waste 
 their borders as widely as possible, so that they 
 might be protected from hostile incursion.' 
 Such a defense would hardly be needed by a 
 nomadic people, and the German states must 
 have had fairly settled seats or they would 
 never have made use of it. A century later 
 than Caesar, another historian gives us a picture 
 of the Germans which is not that of nomads. 
 As one hundred years could hardly measure 
 the transition from one state to another, we 
 have another reason for concluding that Caesar 
 erred, and that we must not draw inferences 
 from him as to German occupation and owner- 
 ship of land. Dr. Stubbs thinks that Caesar de- 
 pended more upon hearsay than upon personal 
 
 • Csesar, De BeUo GaUico, vi, 23, iv, 3. 
 
ANGLES AND SAXONS ON THE CONTINENT 5 
 
 observation, and that certain comparatively 
 primitive German conditions were in his mind 
 exaggerated by contrast with Roman institu- 
 tions.* 
 
 We therefore resort to Tacitus for informa- 
 tion as to ownership of land among the Germans ; 
 but not even here do we find an answer to our 
 question. The later writer was subject to some- 
 what the same Umitations as was Caesar. While 
 he may have spoken after a closer and more 
 personal study of the Germans than did his pre- 
 decessor, we must remember, with Dr. Stubbs, 
 that quite unintentionally he would lay undue 
 emphasis upon features of Teutonic life which 
 contrasted with Roman customs. The gen- 
 eraUty and vagueness of the record should also 
 make us cautious.^ 
 
 Tacitus, while teUing us that the food of the 
 Germans consisted of wild fruit, flesh, or 
 thickened mUk," gives us a picture of a more 
 agricultural people than does Csesar. We learn 
 that while there were no cities or compact towns 
 there were villages,* which indicates a settled 
 
 » Stubbs, Sel. ChaH. (8tli ed. ) 52. 
 
 => Ibid. 54. 
 
 ^ Tacitus, De Situ, Maribus el Populis Germaniae, c. 23. 
 
 * Ibid. c. 16. 
 
6 ANGLES AND SAXONS ON THE CONTINENT 
 
 people, not nomads. The land must have been 
 cultivated, for caves were used for storing the 
 fruits of the earth,' and serfs paid a sort of rent 
 in grain. ' Among a people given in some degree 
 to agriculture we look for a system of land- 
 ownership, but while the Germans undoubtedly 
 had a land-law, we meet diflBculties in defining 
 it satisfactorily. 
 
 Upon a passage of Tacitus and a number of 
 continental' charters, a theory has been buUt up, 
 which, under the name of the "mark system," 
 has met with a very general acceptance for a half 
 century. Without going deeply into detail, it 
 may be enough to say that the distinctive feature 
 of this system, as it affects our inquiry, is com- 
 munal ownership of the land. Let us look at the 
 words of Tacitus. " Agri pro numero cultorum 
 ab universis vicis occupantur, quos mox inter se 
 secundum dignationem partiuntur. FacUitatem 
 partiendi camporum spatia praestant. Arva per 
 annos mutant, et superest ager." ^ From these 
 words there has been argued an ownership of 
 land by village communities at a period prior 
 to that of individual ownership, and an annual 
 apportionment for purposes of cultivation. But 
 
 * Tacitus, De SUu, Moribus et Poptdis Oermaniae, c. 16. 
 2 Ibid. c. 25. ' Ibid. c. 26. 
 
ANGLES AND SAXONS ON THE CONTINENT 7 
 
 it is to be observed that no word directly in- 
 dicating property is used. The land was occupied 
 by villages in proportion to the number of culti- 
 vators, and was divided according to the rank 
 of the occupants. It should be no cause of sur- 
 prise to find the cultivators collected into vil- 
 lages, and we are not to jump to the conclusion 
 that the villages owned the land. Nor is it strange 
 that there should be some proportion between 
 the number of cultivators and the size of the 
 plots they occupy; that would seem a natural 
 economic arrangement in a thinly settled coun- 
 try. As Tacitus put it, "Facilitatem partiendi 
 camporum spatia praestant." Too much weight 
 should not be given the words partiuntur and 
 partiendi ; they do not necessarily indicate a 
 frequent and active dividing, and may refer 
 only to the settled division which Tacitus saw. 
 That the Germans changed their arable from 
 year to year may point to a mere rotation of 
 crops and fallow, which would naturally result 
 in land "left over." 
 
 We have already rejected Caesar as a very 
 trustworthy authority as to property in land, 
 but even accepting his statements that the mag- 
 istrates and chiefs each year assigned to tribes 
 and families as much land as they saw fit, and 
 
8 ANGLES AND SAXONS ON THE CONTINENT 
 
 forced them to move the next year,' and that the 
 Suevi were not permitted to remain in one place 
 for purposes of cultivation more than one year,^ 
 — even accepting these statements to indicate 
 anything as to landownership, do they not prove 
 ownership by the chiefs of the cantons and ar- 
 bitrary disposal as the chiefs think fit, as readily 
 as they prove communal ownership ? ' 
 
 The theory of property in the village com- 
 munity seems, therefore, an inference which, 
 to say the least, it is quite unnecessary to draw 
 from the ancient writers. Within a few years 
 the doctrine has been ably criticised, and is no 
 longer to be accepted as a matter of course. 
 M. Fustel de Coulanges, in The Origin of Pro- 
 perty in Land, examines the few charters upon 
 which the theory is based, and considers the 
 analogies supposed to be found among aU races. 
 His conclusion is that it rests upon entirely 
 insufficient historical grounds. Professor Mait- 
 land has given the subject some attention,* and 
 finds "no proof that among the Germans the 
 land was continuously tUled before it was owned 
 
 * Csesar, De Bella GaUico, vi, 22. 
 2 Ibid, iv, 1. 
 
 ^ Fustel de Coulanges, Origin of Property in Land (London, 
 1892), 5. 
 
 * Maitland, Domesday Book and Beyond, 340-356. 
 
ANGLES AND SAXONS ON THE CONTINENT 9 
 
 by individuals or by tbose small groups that 
 constituted the households." • The evidence 
 points, he thinks, to some cooperation in agri- 
 culture, but not to a communistic division of 
 the fruits. The community did not reallot arable 
 strips; it sought only to regulate the rotation 
 of crop and fallow. Meadows, pasture, and 
 woodland were indeed often held in common, 
 but rights of common may be appurtenant to 
 individual property and partake of the nature 
 of individual property.* Professor Maitland 
 ventures to guess that if there was any "mark 
 community," it was not a village community, 
 but one whose members dwelt in many differ- 
 ent villages and exercised rights in common 
 over woodland which lay between those villages, 
 and that, if any trace of such a community is 
 to be found in England, it is in the common of 
 vicinage.^ But " we are among guesses and little 
 has as yet been proved," * hence it would be 
 rash to declare what was the German system 
 of property in land. Though it follows that we 
 can say nothing of the contributions of the landed 
 man to civil liberty in the Teutonic period, it 
 will nevertheless be useful to get a brief view 
 
 ' Maitland, Domesday Book and Beyond, 346. 
 
 => Ibid. 346-348. » Ibid. 354, 355. * Ibid. 340. 
 
10 ANGLES AND SAXONS ON THE CONTINENT 
 
 of Germanic governmental institutions, for we 
 wish to know what it was upon which the land- 
 owner later exerted his influence. For this we 
 return to Caesar and to Tacitus. 
 
 We naturally look first for the sovereign. 
 Csesar tells us that in times of war magistrates 
 were chosen with power of life and death, but 
 that in times of peace there were no common 
 magistrates, the chiefs of the various subdi- 
 visions administering justice.* Tacitus speaks 
 of kings, 2 but their field of influence was very 
 limited. They are nowhere mentioned as mili- 
 tary commanders; indeed, kings were chosen 
 for their nobility, generals for bravery. The 
 kings are explicitly said not to have an un- 
 limited or free power.' In the council of the 
 state they had no superior voice, for there 
 they were heard only in proportion to their 
 power of persuasion, not of commanding.* 
 They might receive a part of the fine of the 
 criminal, but we do not hear of their having 
 any preeminent position in the administration 
 of justice.' Except to a king of unusual endow- 
 ments, the office meant no more than a simple 
 
 ' Csesar, De Bella GaUico, vi, 23. 
 
 ^ Tacitus, Germ. cc. 7, 11, 12. » Ibid. c. 7. 
 
 * Ibid. c. 11. « Ibid. c. 12. 
 
ANGLES AND SAXONS ON THE CONTINENT 11 
 
 honor. » In other words, the "king," if he were 
 a surpassingly able man, might make himseK a 
 real king, but Tacitus does not suggest his ever 
 being more than a mere figure-head for the 
 nation. Furthermore, the oflSce was not uni- 
 versal among the German states, for we hear of 
 "tribes which are under kings," in apparent 
 distinction from those which are not.^ Bede, 
 writing of a missionary journey in the year 690 
 to Friesland, said: "The Old Saxons have no 
 king, but a number of satraps over their state, 
 which satraps upon the happening of war cast 
 lots. While the war lasts they follow as general 
 the one upon whom the lot falls, and him they 
 obey; but as soon as the war is over all the 
 satraps again become of equal power." ^ We are 
 therefore constrained to the opinion that if in 
 some tribes the Germans did have "kings," they 
 were merely imitations of the kings of their 
 neighbors, bearing but an empty name.^ There 
 was no king in the sense in which the term is 
 commonly used. We therefore look elsewhere 
 for the sovereign power, and find it seemingly 
 in the people. 
 
 * Stubbs, Const. Hist. § 15. ^ Tacitus, Germ. c. 25. 
 ' Bede, Historia Ecelesiastica Gmtis Anglorum, v, 10. 
 
 * Stubbs, Sel. Chart. (8th ed.) 4. 
 
12 ANGLES AND SAXONS ON THE CONTINENT 
 
 In public business the voice of the people 
 was finally decisive. For convenience' sake the 
 chiefs alone passed upon the smaller affairs, 
 but concerning the greater all consulted after 
 the chiefs had first considered them. The king 
 or chief might have a superior influence in the 
 council only by his powers of persuasion. Those 
 powers might depend a great deal upon his 
 rank, the liking in which he was held, or his 
 prowess in war, as well as upon his wisdom 
 and eloquence; but nobody in council spoke 
 with authority which must be obeyed. The 
 people might express their displeasure by groans 
 or their pleasure by the clashing of spears. The 
 council sat armed.* This suggests that the 
 "sovereign people" comprised only the fighting 
 men, a thing easily understood in so primitive 
 a race. " They do no business either public or 
 private unless they are armed. But it is not the 
 custom for any one to assume arms before 
 the state has approved his ability. Then in the 
 council itself either one of the chiefs, or the fa- 
 ther or a relative, arms the youth with shield 
 and javelin. This among them is the 'toga,' 
 and this the first honor of young manhood; 
 before this they are considered a part of the 
 home, afterwards a part of the state." ^ 
 
 * Tacitus Germ. c. 11. » Ibid. c. 13. 
 
ANGLES AND SAXONS ON THE CONTINENT 13 
 
 This popular assembly of armed men, be- 
 sides performing the administrative and legis- 
 lative functions which involved consultation, 
 acted as a court of justice in capital cases. Pen- 
 alties were proportioned to the offense, and 
 ranged from hanging for traitors to fines in 
 horses and cattle for smaller crimes. The fines 
 were divided between the state (or the king, if 
 there were one) and the injured party or his 
 family. The assembly also elected the chiefs, 
 a part of whose duties was the administration 
 of justice in the subdivisions of the pagus and 
 town. As a support to his authority and as 
 advisers, each chief was assigned one hundred 
 men from the people,* who thus had a direct 
 hand in local justice, and perhaps also in local 
 administration. 
 
 The expenses of government must have been 
 comparatively light. Royalty, where existent, 
 had not attained a position requiring the fiscal 
 support of the people. The so-called king had 
 his private property and his share of court fines, 
 which probably suflSced for him.* The chief 
 had the larger proportional share of land to 
 which his rank entitled him, and any lack which 
 this left unsatisfied must have been supplied 
 
 * Tacitus, Germ. c. 12. 
 
14 ANGLES AND SAXONS ON THE CONTINENT 
 
 by the voluntary gifts of flocks and products 
 of the field, which it was the custom of the peo- 
 ple to give him.^ The judicial department was 
 cared for by the fines, and the expenses of the 
 assembly must have been small aside from the 
 cost of attendance borne by each man. There 
 was little occasion for a tax, and we hear of 
 none. 
 
 We find in this a very incomplete picture, 
 but there are details sufllcient to show us a col- 
 lection of tribes united by blood and custom, 
 though not by a common government, under 
 a system whose distinguishing feature was that 
 the authority rested in the people, or at least 
 in the armed men. It was with these popular 
 institutions that the Anglo-Saxons went to 
 England in the fifth century. Let us see what 
 became of them upon British soil. 
 
 * Tacitus, Germ. c. 15. 
 
II 
 
 THE ANGLO-SAXONS IN ENGLAND 
 
 The most striking change wrought by the mi- 
 gration was the rising of kings over the various 
 states, kings in fact as well as in name. Prob- 
 ably this was not an instantaneous process, for 
 while a nominal king might be set up in a day, 
 the centering of power in royalty would, among 
 a democratic people, be of slower growth. How- 
 ever this may be, it is certain that there came a 
 new tendency, important because in opposition 
 to the popular government which had been the 
 real essence of Teutonic institutions. Forecasts 
 of this tendency have been seen before the 
 Anglo-Saxons left the Continent, but we now 
 observe it clearly defining itself. 
 
 Why was it that the Germanic tribes crossed 
 the Channel without kings, but on British soil 
 became subject to them earlier than did the 
 kindred Saxons and Frisians who remained 
 upon the Continent?* The reasons must ap- 
 
 * 2 Lappenberg, 375. 
 
16 THE ANGLO-SAXONS IN ENGLAND 
 
 parently be sought in the migration and in the 
 different local conditions. The invasion en- 
 tailed a more sustained war than was common 
 at home, and against a new and untried foe. 
 As a consequence the commanding general 
 must have had, if possible, more plenary powers 
 than at home. On account of the length of the 
 war, these powers would be exercised for an 
 unusual term, and the dux or heretoga would 
 become somewhat settled as the head of the 
 state, perhaps arrogating to himself civil au- 
 thority as well as military during the time of 
 war, and retaining it when hostilities ceased. 
 The situation in which the Anglo-Saxons found 
 themselves, constantly in danger from the Scots 
 and Picts, must have secured the people's ac- 
 quiescence in a change which, made for their 
 safety in unifying the tribes. Probably the very 
 migration and conquest had also brought about 
 a feeling of unity among the people of each 
 tribe or state which had never been theirs upon 
 the Continent, and which found in royalty a wel- 
 come expression. And they were nations not 
 merely in feehng, but also in fact, and as such 
 members of the world's family of nations, with 
 whose kings only a king was dignified enough 
 to deal.' 
 
 * Stubbs, Canst. Hist. § 32. 
 
THE ANGLO-SAXONS IN ENGLAND 17 
 
 The national feeling spoken of does not mean 
 that the Anglo-Saxons at once became a single 
 nation extending over all England. Each Ger- 
 man state, as it came from the Continent, re- 
 tained its identity, but the tribes of which it 
 was composed each caught a sentiment which 
 cemented it into a firmer state with the qualities 
 of a nation. Thus there were in England a num- 
 ber of kingdoms. Some of them were of no wider 
 extent than the later shire, some were larger; 
 but the more powerful absorbed the weaker or 
 forced their allegiance, until finally the seven 
 or eight kingdoms remaining were united under 
 one preeminent royal house. During this pro- 
 cess of aggregation, as Mr. Taylor terms it,' 
 the royal power steadily gained until it became 
 the expression of the real national unity of all 
 England. 
 
 One man put thus in a place of power over 
 even a free people will accumulate authority. 
 So we shall not be surprised to see the people 
 lose much of the political rights which they 
 had exercised. This was the inevitable result 
 of the building of a compact nation upon a 
 groundwork of conquest, but it was not wholly 
 
 * 1 Hannis Taylor, Origin and Gr&wth of the English Con- 
 stitution, 176. 
 
18 THE ANGLO-SAXONS IN ENGLAND 
 
 deplorable. Much of what the people lost in 
 individual rights came back to them as gain 
 in collective solidarity, and this solidarity they 
 firmly kept while later winning back their pris- 
 tine rights. Nor were those rights ever wholly 
 lost, especially in local aflfairs. There were checks 
 to the king's assumption of power. The share 
 of the landed man in the checking of royal 
 prerogative is the subject of our inquiry, hence 
 we must digress from our main story long enough 
 to look at the system of landholding in Anglo- 
 Saxon England. 
 
 Whatever may have been the case in earlier 
 times, absolute ownership of the land in sev- 
 eralty became the rule in England.* Of tenures 
 there were two main kinds, by book-right and 
 by folk-right. Book-land was land held under 
 charters or books granted by the king, mostly 
 to bishoprics and religious houses, but some- 
 times to lay nobles. The grant probably made 
 no difference in the occupation of the land, 
 but simply carried lordship and revenues, 
 profits of justice, and rights of jurisdiction. 
 Land held by book was alienable. Folk-land 
 has been thought to be land belonging to the 
 people at large and granted by the king to in- 
 
 ' Stubbs, CoTist. Hist. § 36. 
 
THE ANGLO-SAXONS IN ENGLAND 19 
 
 dividuals, though without book or written 
 record. A simpler significance of the term is 
 now preferred by some who consider that it 
 was merely land held by folk-right or by cus- 
 tomary law. It was perhaps at first not alien- 
 able or disposable by will. The holder owed to 
 the king certain services. A third kind of land 
 was known as laen-land, and was held by the 
 tillers of lords to whom rents and services were 
 paid. Whether or not this tenure resulted from 
 a grant of book-land from the king's grantee 
 to the occupier is not known.' 
 
 Of more interest to us than the tenure of 
 land is its allotment. Unfortunately we have 
 not the least record of the method adopted 
 in dividing the land, but we may with some 
 degree of certainty suppose that the leader of 
 each conquering state made the apportion- 
 ment wiih some relation to the divisions of the 
 host into hundreds, each hundred receiving its 
 own share, the territory of the hundred being 
 allotted to the towns and the sections given the 
 towns and villages parceled out to the house- 
 holds or individuals. Some such process would 
 seem to be necessary in order to make a 
 
 * 1 Pollock & Maitland, History of English Law before the 
 Time of Edward I (2d ed.) 60-62. 
 
20 THE ANGLO-SAXONS IN ENGLAND 
 
 peaceable settlement. While some sort of equal- 
 ity may have been observed as respected the 
 various divisions of the host, it is scarcely to be 
 doubted that individuals would receive larger or 
 smaller private estates according to their rank, 
 the favor in which they stood to the leader, and 
 their services in the conquest. " Nobles or other 
 great men received grants of estates, or perhaps 
 attached themselves to the pohtical center on the 
 condition of retaining estates which they had 
 already appropriated." ' 
 
 " The primary element which the law regards 
 is the landowning freeman." ^ " It is as an owner 
 of land, or as a fully qualified ' lawful man,' 
 . . . that the freeman has rights and duties." ' 
 This landowning freeman was the descendant 
 of the warrior freeman of the Germans; he suc- 
 ceeded to his standing in the community, with 
 the loss of such rights as followed the intro- 
 duction of royalty. The invading warrior, with 
 the coming of peace, settled down to agricul- 
 tural pursuits, and in place of the spear, in 
 the time of Tacitus borne in the public assem- 
 bly, land became the badge of his rank. 
 
 It was through the township that this "law- 
 ful man" had his first and closest touch with 
 
 ' Stubbs, Const. Hist. § 35. " Ibid. § 38. ^ Ibid. § 39. 
 
THE ANGLO-SAXONS IN ENGLAND 21 
 
 political afifairs. The assembly of the town was 
 composed of such freemen. In it were per- 
 haps made the by-laws for the local community. 
 It looked after certain poHce matters like the 
 pursuit of criminals and the search for stolen 
 goods, it looked to the collection of exactions 
 laid by the courts. But the assembly of the town 
 was not a court; the real judicial work was done 
 in the hundred and shire courts. The head 
 man was the town-reeve, at first perhaps elected 
 by the freemen, later probably appointed by 
 the king or his officer. The town was repre- 
 sented in the courts of the hundred and shire 
 by the reeve and four best men, who may have 
 looked to the town-meeting for instructions.' 
 
 The division next larger than the township 
 was the hundred, corresponding judicially to 
 the German pagus, with its one hundred judges 
 in the court of the chief. The hundred court 
 was held monthly, and was attended by the 
 lords of lands within the hundred or their stew- 
 ards, and by the priest, the reeve, and the four 
 best men of each township. It had a general 
 criminal and civil jurisdiction.^ 
 
 Superior to the hundred was the shire. At 
 its head stood the ealdorman, who was the 
 
 » Stubbs, Canst. Hist. §§ 39-43. ^ Ibid. §§ 45, 46. 
 
22 THE ANGLO-SAXONS IN ENGLAND 
 
 princeps or chief of Tacitus and the satrap 
 of Bede. Elected by the national assembly of 
 the Germans, in England he was nominated 
 by the king and confirmed by the witan. He 
 held oflBce for life, unless removed by the power 
 which appointed him. Some sort of hereditary 
 principle also appeared, at least to the extent 
 of limiting the oflSce to the old regal families 
 which had been mediatized in the process of 
 aggregation.^ The ealdorman was the judicial 
 head of the shire, and had full power to hold 
 pleas and proceed to execution in both civil 
 and criminal cases. He was also the executive 
 and military head of the shire.'' As one of the 
 higher nobles, he was of course possessed of 
 large landed estates. His position carried with 
 it lands in the shire and the chance to receive 
 gifts for favor and protection.' He had a seat 
 in the witan and some share in national legis- 
 lation and judicature.* 
 
 Alongside the ealdorman was the sheriff. 
 Originally perhaps elected by the people as 
 the judicial president of the shire, he became 
 
 * Stubbs, Comt. Hist. § 49; 2 Kemble, Saxms in England, 
 146-149. 
 
 " Stubbs, Const. Hist. § 49; 2 Kemble, Saxons, 136-138. 
 ^ 2 Kemble, Saxons, 140, 141. 
 
 * 2 Kemble, Saxons, 142, 143; Stubbs, Const. Hist. § 48. 
 
THE ANGLO-SAXONS IN ENGLAND 23 
 
 before historical times the pecuUar officer of the 
 king, appointed by the crown without the con- 
 sent of the witan. To him as the king's stew- 
 ard belonged the collection of the fiscal dues 
 and the general execution of the law. He re- 
 ceived, as did the ealdorman, a share of the 
 profits of jurisdiction, and sometimes perhaps 
 had certain land attached to the office.* 
 
 In the court of the shire, presided over by 
 the sheriff, sat the ealdorman and bishop to 
 declare the law secular and spiritual. The 
 suitors were the same as in the hundred court, 
 all the lords of lands, aU pubUc officers, and 
 the priest, reeve, and four men of each town. 
 The suitors were the judges, but in some mat- 
 ters (as the presentment of criminals) the twelve 
 Senior thegns came, in both the court of the shire 
 and hundred, to act alone. The shiremoot had 
 the same jurisdiction as the hundredmoot, the 
 declaration of folk-right in every suit; but it 
 was not strictly an appellate court. Indeed 
 the Enghsh at this time had no real system of 
 appeal. One could remove his case from the 
 lower to the higher court only when no deci- 
 sion was made; a judgment once given was 
 final. But if a litigant thrice demanded right 
 
 1 Stubbs, Cmst. Hist. § 49; 2 Kemble, Saxms, 158-165. 
 
24 THE ANGLO-SAXONS EST ENGLAND 
 
 in the hundred court and could get no deci- 
 sion, he could press his suit in the shire court. 
 Similarly, he could resort from the latter court 
 to the king.* 
 
 After this brief view of the local and more 
 popular branches of the Anglo-Saxon consti- 
 tution, we may return to the national government 
 and the king. It is probable that, next after 
 the military commandership, it was in what we 
 now call the executive department that the king 
 first gained predominance, for it is the every- 
 day round of oflScial business, the collection 
 of revenue, the control of diplomacy, which 
 most naturally would fall into the hands of the 
 man who embodied the national unity. In 
 the process of aggregation, even if not in the 
 earliest and smallest kingdom, the burden of 
 such duties must soon have become so great 
 as to demand the aid of ministers. These would 
 of course be appointed by the king, and thus 
 arose a body of administrators answerable to 
 the king alone. We shall later meet the system 
 as a serious barrier to the winning of civil liberty 
 by the people. 
 
 The king inevitably tended, not merely to 
 express the national unity, but also to attract 
 
 ' Stubbs, Const. Hist. § 50. 
 
THE ANGLO-SAXONS IN ENGLAND 25 
 
 to himself the functions of government, until 
 he became, at least so far as political activity 
 and power were concerned, alnjost the nation 
 itself. Thus, as the process of aggregation went 
 on, the popular elements of the government 
 were left largely in the local aggregated parts 
 and did not persist above the shire. As the 
 kingdom could be a nation only if under one 
 law, we find legislation becoming national and 
 passing from the hands of the people. The 
 king claimed to be in some sort the paramount 
 legislator.^ But the theory of a legislative body 
 was without doubt too strongly impressed upon 
 the race to be entirely lost, and the king, so 
 far as we know, always had his witan, or as- 
 sembly of wise men. As for the power of that 
 body, something of a problem is presented. No 
 contemporary accounts enhghten us fully as 
 to the practical workings of the king and witan, 
 so we may not know whether in the session 
 the king or his advisory board was the superior 
 power. It is very hkely that a strong king could 
 get along with the form of the witan, that he 
 would convene it and declare his will, giving 
 to it the right of a rather hollow assent. A weak 
 
 * 1 Palgrave, History of the Rise and Progress of the English 
 Commonwealth, 648. 
 
26 THE ANGLO-SAXONS IN ENGLAND 
 
 king, however, miglit require something more 
 substantial than formal consent, and seek coun- 
 sel; it is possible that the witan might at times 
 even make some demands. The initiative, 
 however, must in general have lain with the 
 king. 
 
 The earUest specimen of Anglo-Saxon legis- 
 lation is said to be the collection of dooms 
 which iEthelbert, king of Kent, "established 
 with the consent of his Witan" about the year 
 600.' Nearly a century later Ini promulgated 
 the laws of Wessex, prefaced by the words: "I, 
 Ini . . . with the counsel and with the teach- 
 ing of Cenred my father, and of Hedde my 
 bishop, and of Eorcenwold my bishop, with 
 all my ealdormen and the most distinguished 
 witan of my people, and also with a large assem- 
 bly of God's servants, have been considering 
 of the health of our souls and of the stability 
 of our realm; so that just law and just kingly 
 dooms might be settled and estabUshed through- 
 out our folk, so that none of the ealdormen 
 nor of our subjects should hereafter pervert 
 these our dooms." ^ In the earUer case the witan 
 gave consent. Did they do more in the later? 
 
 ' 1 Palgrave, Eng. Com. 43. 
 
 * Ini, Preamble to Laws, in Stubbs, Sel. Chart. (8th ed.) 61. 
 
> THE ANGLO-SAXONS IN ENGLAND 27 
 
 Cenred and the bishops appear to have first 
 advised Ini. Next the king called together his 
 witan and "considered" with them, which 
 suggests either that Ini Kstened to their advice 
 or at least questioned them as to various local 
 customs which should be of value in making 
 a code. Apparently there had been a variety 
 of law administered by the various ealdormen, 
 for a settled law throughout the folk seems the 
 object of the dooms. Perhaps, therefore, Ini 
 used the witan only as informants, but prob- 
 ably some sort of consent was also sought in 
 order that the various ealdormen might the 
 more harmoniously support the codified law 
 in cases where it differed from local custom. 
 Even so, the conclusion remains to be drawn 
 from "my ealdormen" and the "witan of my 
 people," as well as from the promulgation in 
 the king's name, that it was Ini who had the 
 real authority of this legislative body. 
 
 Another king of Wessex, two hundred years 
 later than Ini, gives us a somewhat clearer 
 idea of the procedure in the witenagemot. " I, 
 then, Alfred, king, gathered these [laws] together, 
 and commanded many of those to be written 
 which our forefathers held, those which to me 
 seemed good; and many of those which seemed 
 
28 THE ANGLO-SAXONS IN ENGLAND 
 
 to me not good I rejected them, by the counsel 
 of my witan. ... I, then, Alfred, king of the 
 West Saxons, shewed these to all my witan, 
 and they then said that it seemed good to them 
 all to be holden."* We have "counsel" spoken 
 of, but the obvious picture is that of the king 
 making the codification as seemed best to 
 him, and then getting the consent of his witan. 
 Of counsel in the sense of advice nothing 
 appears. 
 
 We find an institute "which King Eadmund 
 and his bishops, with his witan, made" about 
 943.* Eadgar a few years later ordained "with 
 the counsel of his witan." ' There exists also 
 an "ordinance which King iEthelred and his 
 witan ordained" somewhere in the vicinity of 
 1000.* We may safely say, therefore, that at 
 times the witan wielded an effective part of 
 the legislative authority. Just what part this 
 was very likely depended, as already suggested, 
 somewhat upon the character of the king. It 
 is also probable that, while there was a see-saw 
 as to the relative power of the king and his 
 
 * Laws of Alfred, Preamble, in Stubbs, Set. Chart. (8tli ed.) 
 62. 
 ^ Stubbs, Sel. Chart. (8th ed.) 67. 
 
 ' Preamble to Ordinance, in Stubbs, Sd. Chart. (8th ed.) 71. 
 Mhelred I, in Stubbs, Sel. Chart. (8th ed.) 72. 
 
THE ANGLO-SAXONS IN ENGLAND 29 
 
 advisers, there was on the whole a consider- 
 able tendency in Anglo-Saxon times toward 
 the strengthening of that of the witan. The 
 charters of the tenth century point that way. 
 Should it be true that the witan at some time 
 was not strictly a legislature, and that the king 
 merely promulgated his edicts amidst his peers 
 and prelates, using the language of command,* 
 to which the witan assented as a matter of 
 course, the usage of assent must surely in the 
 long run have ceased to be formal and have 
 become gradually essential. From such a state 
 of affairs it is but a step to the claiming of an 
 equal share in legislation, and when the king 
 retains but a moiety, his prerogative is bound 
 even further to dechne. Once the counselors' 
 voices are heard in advice, they will learn to 
 speak with authority. Once authority comes 
 in one measure, it follows in another. Yet the 
 process is the slow one of the centuries. 
 
 Who composed this witan in which such 
 potentiaUty was gathering? To begin with a 
 negative, it was not a folkmoot. As long as 
 the kingdom remained coextensive with the 
 shire, there existed perhaps a national folk- 
 moot side by side with the newer witenagemot, 
 
 ' 1 Palgrave, Eng. Com. 638. 
 
30 THE ANGLO-SAXONS IN ENGLAND 
 
 but in a kingdom of aggregated shires no folk- 
 moot other than those of the shires was known. 
 In the consohdated kingdom the principle of 
 popular representation in its purity was lost 
 sight of ; although constructively the witan re- 
 presented the rights of the people, its members 
 were not formally there in behaK of the freemen. 
 Now and then, on unusual occasions, — when 
 a king was to be crowned or invasion repelled, 
 — the people assembled at the place where the 
 witan sat, but they were not a part of the legis- 
 lative body and had no voice other than such 
 as comes from the acclamation of the crowd,' 
 Possibly the people acquiesced the more readily 
 in such a loss of power because, when the units 
 of the kingdom were consohdated, it became 
 impossible for all the freemen to attend. Be- 
 sides the inconvenience and expense of travel, 
 the interest of each man, as the kingdom en- 
 larged, would become more local and provin- 
 cial, and less national." 
 
 As the king could get along with hardly more 
 than the assent or counsel of subjects, he would 
 give place only to such of them as pleased him 
 most or as, because of their power and influence, 
 
 ' Stubbs, Const. Hist. § 51. 
 " 2 Kemble, Saxons, 191-193. 
 
THE ANGLO-SAXONS IN ENGLAND 31 
 
 he found it wise to keep attached to his cause.* 
 He had a body ready-made from which to draw 
 such men. Every German princeps had his comi- 
 tatus or following of men attached to his cause. 
 They were his distinction in time of peace and 
 his support in time of war ; constantly with 
 him, they even sat at his table.'' To such a body 
 of tried friends the king might well first turn for 
 his administrative officers and for his counselors. 
 These comites or gesiths were originally un- 
 free and members of the royal household, but, 
 because of their nearness and services to the 
 king, they were liberally rewarded with grants 
 of land, so hberally indeed that they came to 
 have a better lot than did the landed freemen 
 or even the noble by birth. So well did they 
 thrive that the old nobiUty were absorbed by 
 the new.' The more important gesiths became 
 thegns, that is, warrior gesiths owing miUtary 
 duty. A freeman who acquired five hides of land 
 and entered the service of the king became like- 
 wise a thegn. On the other hand, the noble 
 by birth, recognizing the superior opportunities 
 which the thegnhood offered, was fain himself 
 
 * The members of the witan were not elected, but summoned 
 by writ of the king. 2 Xemble, Saxons, 201. 
 
 * Tacitus, Germ. cc. 13, 14. ' £!emble,iSa«(m«,bk.i,ch.'vii. 
 
32 THE ANGLO-SAXONS IN ENGLAND 
 
 to become a thegn, and placed himself in the 
 king's service. The gesiths likewise disap- 
 peared, those who did not attain thegnhood be- 
 coming mere servants of the king. Thegn came 
 to be the name of the large class of nobility, 
 high and low, who held a certain amount of 
 land and were bound personally to the king by 
 obligation to do military service.* 
 
 ' Stubbs, Const. Hist. § 65. Whether the possession of five 
 hides of land alone was sufficient to confer thegnhood, is dis- 
 puted. See Ibid. Lappenberg thought that the origin of thegn- 
 ship was lost sight of, and that "not alone martial honour, but 
 its external reward [land], was regarded as a foundation of 
 nobility." The same writer gave the rank to the freemen who 
 had certain armor and to the merchant who three times crossed 
 the ocean at his own expense. 2 Lappenberg, 386. Cf . Of Peo- 
 ple's Ranks and Laws, in Stubbs, Sel. Chart. (8th ed.) 65. Doubt 
 has been expressed as to the latter being a basis for thegnship. 
 1 Pollock & Maitland (2d ed.) 34. A man wealthy enough to 
 do so much traveling must, however, have had five hides of 
 land, for land was almost the sole wealth of the day. "It no- 
 where appears that the mere possession of a fixed quantity of 
 land entitled the owner to the rank of a thegn, but the frequent 
 mention of five hides in connexion with the thegnhood would 
 seem to show that, in addition to other qualifications, a thegn 
 would ordinarily need and obtain from a royal grant an endow- 
 ment of that extent." Medley, Student's Manual of English 
 Constitutional History, 18, 19. It is safe to say that the holding 
 of land, even if not essential, became the rule, and rather ob- 
 scured the original badge of thegnhood, which was the personal 
 tie of service. The thegns became as a whole a class of larger 
 
THE ANGLO-SAXONS IN ENGLAND 33 
 
 When the thegns thus came to be distin- 
 guished for landed property as well as for per- 
 sonal relationship to the king, they had added 
 recommendations as candidates for the witan. 
 Among them were found the men of the great- 
 est wealth in the nation, for personal property 
 in Anglo-Saxon times was comparatively very 
 small. Now the wealthy man, who was the 
 landed man, could not well be neglected by the 
 king when he sought support. We are not to 
 think, however, that every landowner was con- 
 sulted. There were two classes of thegns, the 
 richer and the poorer. The former paid fiscal 
 charges directly to the king ; the latter dealt 
 with the sheriflf. The distinction was much the 
 same as that between the later barones majores 
 and barones minores} The richer thegns bore 
 the bulk of the fiscal burdens; they and their 
 
 landowners. "The development of the comitatus into a terri- 
 torial nobility seems to be a feature peculiar to Englith history." 
 Stubbs, CmM. Hist. § 65. "The possession of land was, even 
 whilst the idea of nationality was mainly a personal one, the 
 badge, if not the basis, of all political and constitutional right. 
 On it depended, when the personal idea yielded to the territorial, 
 the rights and obligations, the rank, value, and credibility of the 
 member of the body politic; it became the basis as well as the 
 tangible expression of his status." Ibid. § 36. 
 * Maitland, D. B. and Beyond, 165, 166. 
 
34 THE ANGLO-SAXONS IN ENGLAND 
 
 dependants and military followers were a con- 
 siderable portion of the king's fighting force. 
 If ever policy led the king to seek counselors, 
 surely he would look for them here. On the 
 other hand, if any man were to demand a share 
 in public council, who was more Ukely to do so 
 than this very thegn to whom the burdens of 
 taxation and military service gave the greatest 
 interest in pubhc business ? ' And where could 
 
 ^ Taxation, in the modem sense of the term, did not exist 
 until a very late period in Anglo-Saxon history. Revenue ample 
 for the king and government was furnished by the income from 
 lands owned by the crown, the profits of justice, fines for non- 
 attendance upon military duty, purveyance for the king and 
 his retinue in royal progresses through the realm, wreck, trea- 
 sure-trove, the produce of mines, and in later times the semi- 
 feudal charges. StahhSjConst. Hist. ^ 59. AU land was subject 
 to the trinoda necessitas — military service, the repair of bridges, 
 and the maintenance of fortifications — aU personally performed. 
 Stubbs, Const. Hist. §§ 36, 46. The modest needs of the young 
 nation required no real tax until the Danish invasions when, to 
 buy ofiF the foe, large sums were raised by a charge called Dane- 
 geld, levied on the land at so much a hide. Upon the same basis 
 shipgeld was assessed to provide fleets. To this extraordinary 
 taxation the consent of the witan was necessary. Stubbs, Const. 
 Hist. § 56; 1 Taylor, Eng. Const. 186, 187; 2 Lappenberg, 210- 
 212. The witan also participated in the determination of war 
 and peace, and in the direction of the fleet and army. Stubbs, 
 Const. Hist. § 56. The importance of the landed man getting 
 a hearing in the witan consisted in the fact that there it was that 
 questions so nearly affecting his welfare were decided. 
 
THE ANGLO-SAXON^ IN ENGLAND 35 
 
 the king look more wisely for advice than to 
 the lords of land who had gained the sharp wits 
 and executive experience of men of affairs in 
 the handhng of their property? Even if the 
 king summoned the poorer men, those of the 
 remote districts would not be able to bear the 
 expense of attendance, and their larger landed 
 neighbors would be the only men of the locality 
 actually finding seats in the witan. 
 
 While the predecessor of the thegnhood, the 
 comitatus, was the class from which the king 
 at first largely drew his witan, the thegns did 
 not constitute the whole body or even the most 
 influential portion of it.» They probably had 
 less prestige than the ealdormen and bishops. 
 This may be taken to indicate that all which 
 has been said of them is of small import, but 
 
 ' Besides the thegns, the witan contained princes of the 
 blood and ealdormen. After the introduction of Christianity, 
 archbishops, bishops, abbots, priests, and deacons found seats. 
 2 Kemble, Saxons, 195, 196. It is interesting to note in passing 
 that all of them had large landed interests, although that fact 
 had no influence in placing them in the witan. Princes of the 
 blood were representatives of royalty. Ealdormen were there 
 as members of the old royal families and important pubUc 
 officers. The clergy represented the holy counsel of the church. 
 But though they were not members in any degree because of 
 their land, the fact that they did have land very likely some- 
 times colored their action in the witenagemot. 
 
36 THE ANGLO-SAXONS IN ENGLAND 
 
 SO to take it would be erroneous. What we are 
 to fasten to is this: in the witan the only mem- 
 bers who in any wise were drawn from the 
 people (as distinguished from the royal or sub- 
 royal families and the church) were the thegns, 
 and these thegns were for the most part men 
 of landed possessions; in later times, perhaps, 
 they owed their presence in the witan partly 
 to the very fact that they had large estates. 
 Though overshadowed by the king and even 
 by other members of the witan, they had pre- 
 sent power and the promise of authority in the 
 future; they were the entering wedge of popu- 
 lar legislation. 
 
 We have yet to consider the king's part in the 
 jurisprudence of the Anglo-Saxon period. No 
 portion of the popular institutions of the Ger- 
 mans survived the transplanting to English soil 
 so hardily as did the judicial. In the local courts 
 of the shire and hundred, as we have already 
 seen, justice remained at bottom popular, but 
 the new kingship was of too all-absorbing a char- 
 acter not in a large and increasing degree to 
 affect jurisprudence. At first, however, the royal 
 influence would confine itself chiefly to national 
 judicature, leaving the local to retain much of 
 its Germanic purity; but after a time the im- 
 
THE ANGLO-SAXONS IN ENGLAND 37 
 
 press of tlie king would be felt from above and 
 justice would become royal. 
 
 Over his comitatus the king would very 
 shortly acquire a jurisdiction; they would be 
 under his protection. If the king called his 
 people to him, they came under the same pro- 
 tection, and "if any one there do them evil, let 
 him compensate with a twofold hot [the fine 
 paid to the injured man or his family] and fifty 
 shillings to the king." ^ Under Ini, if a man 
 fought in the king's house both life and pro- 
 perty were at the king's mercy, and hot was to 
 be made for violation of his castle at one hun- 
 dred and twenty shillings.^ By Alfred's time, 
 treason was &oMess; plotting against the king's 
 life or harboring exiles was a capital offense.' 
 If a man fought before a king's ealdorman in 
 the gemot or drew his weapon in folkmoot, 
 special penalties were fixed.* Contempt in the 
 popular court was becoming contempt of the 
 king's oflScer or of the king. This points to 
 the court itself becoming the king's. The king 
 thus gradually extended his peace from per- 
 
 * JEthelbert, c. 2, in Stubbs, Sd. ChaH. (8th ed.) 61. 
 
 2 Stubbs, Const. Hist. § 71; Sel. Chart. (8th ed.) 62. 
 
 3 Alfred, c. 4, in Stubbs, Sel. Chart. (8th ed.) 62. 
 
 * Ibid. c. 38. 
 
38 THE ANGLO-SAXONS IN ENGLAND 
 
 sons actually in his presence to those con- 
 structively so situated. This peace differed 
 from the old national peace, for the breach of 
 which one half of the fine went to the German 
 state and one half to the injured party or his 
 family.* So it differed from the early EngUsh 
 national peace, the fine of which was similarly 
 divided between the king and the injured party. 
 Of this national peace the king was indeed 
 guardian, but it was distinct from that private 
 peace which was a protection of those who 
 were under his eye. Imperceptibly this latter 
 peace was extended from the king's household 
 to his highways, from person to person and place 
 to place, until all England was within it. Then 
 the enforcement of law lived and died with 
 the king and was suspended during an inter- 
 regnum. Inseparable from the enforcement 
 of the king's peace was the exercise of juris- 
 diction, so that its final prevalence made the 
 king "the supreme judge of all persons and 
 over all causes, limited however by the counsel 
 and consent of his witan." ^ 
 
 With the sovereign as the fountain of jus- 
 tice, the old hundred and shire courts became 
 quasi-royal courts, in which the sheriff and 
 
 » Tacitus, Germ. c. 12. ^ Stubbs, Const. Hist. § § 71 , 72, 73. 
 
THE ANGLO-SAXONS IN ENGLAND 39 
 
 the'ealdorman represented the authority of the 
 king. By him they were supported and upheld, 
 and by them he was bound theoretically to see 
 justice done. If a litigant could not there find 
 justice, he applied to the king for judgment.* 
 If judicial officers were guilty of maladmin- 
 istration, it was the king only who could right 
 the wrong.'' While the king had not therefore 
 immediate jurisdiction in common justice, in 
 some special cases he was a judge of the first 
 instance. This was so where both parties were 
 of the highest rank.' 
 
 Over book-land the king and witan had a 
 special jurisdiction which was of the highest 
 importance. Book-land, it will be remembered, 
 was land granted to a bishopric or abbey or 
 to a lay lord by the king and witan. In many 
 cases probably the land was already the pro- 
 perty of the grantee, and the only result of the 
 booking was the freeing of the land from all 
 charges except the trinoda necessitas. This 
 would mean that included in the exemptions 
 were the profits of justice which had belonged 
 
 * Eadgar, Secular Ordinance, c. 2; Cnut, Secular Dooms, 
 c. 17; in Stubbs, Sd. ChaH. (8th ed.) 71, 73. 
 
 * 2 Kemble, Saxons, 41. 
 
 ' Ibid. 45; jEthelred HI. c. 11. in Stubbs, Set. ChaH. (8th 
 ed.) 73. 
 
40 THE ANGLO-SAXONS IN ENGLAND 
 
 to the king. Even when the title to the land 
 itself passed by the booking, it passed with this 
 exemption. With the profits of jurisdiction went 
 almost inseparably the jurisdiction itseK, the 
 sake and soke. The grant, to be sure, gave only 
 the right to receive a portion or the whole of 
 the court fines, and made no mention of the 
 right to hold the court, but the lord would find 
 it convenient in many, if not most, cases to set 
 up a court of his own. To this no objection 
 would be made, as the question was who had 
 a right to the fines, not who had the court. So 
 seigniorial courts cut into or destroyed many 
 a hundred court. But whether a cause were 
 decided in one court or the other, the procedure 
 was the same, and justice was done by dooms- 
 men who were "lawful men" and peers of the 
 accused. With the exception of criminal cases, 
 which the crown often reserved, some later Anglo- 
 Saxon communities saw a good part of the 
 administration of justice done, not in the folk- 
 moots nor in the king's own courts, but in the 
 courts of landed lords, done, however, by dooms- 
 men who in a manner represented the landed 
 freemen who were the sinew of the people.* 
 
 * Stubbs, Const. Hist. § 73; Maitland, D. B. and Beyond, 
 80-107, 283-290. 
 
THE ANGLO-SAXONS IN ENGLAND 41 
 
 Let us try to sum up the tendencies of the 
 Anglo-Saxon period. We see kings rising over 
 the German tribes and taking to themselves 
 the usual powers of kings. In the course of time 
 a stronger king rises over the weaker, and we 
 have a united England. This king assumes 
 more and more of the authority which for- 
 merly lay in the people. He becomes paramount 
 administrator, legislator, and judge. The min- 
 isters of state are his appointees and subject 
 to him alone. The king is not, however, the sole 
 lawmaker; he is subject here to the more or 
 less uncertain check of the witan, which may 
 range from formal assent to occasional demand. 
 But this witan has always real potentiality, even 
 when it is not expressed by present power. The 
 nearest approach to the common people among 
 its members are the thegns, who are for the most 
 part large landowners. These being among the 
 men upon whom taxation and military service 
 most severely fall, we look to them for some 
 influence when the king urges upon the witan 
 an unusual tax or the undertaking of war. In 
 the administration of justice the king, though 
 at first supreme judge of the nation, does not 
 immediately absorb the old popular jurisdiction 
 of the folkmoot, but his officers early become 
 
42 THE ANGLO-SAXONS IN ENGLAND 
 
 the president and chief declarant of law, Uable 
 only to him; and in time, as the king's peace 
 extends over the whole land, jurisdiction be- 
 comes royal. But we observe another tendency. 
 The king grants the fruits of local justice in 
 many places to lords of land, reserving to him- 
 self criminal jurisdiction. This tends to make 
 local civil justice seigniorial and to wipe out 
 the old hundred courts. We approach a sys- 
 tem in which jurisdiction is divided between 
 the king and the territorial nobihty. But through 
 it all, in the local courts there persists the prin- 
 ciple of the folkmoot: the doomsmen are landed 
 freemen, probably elected by landed freemen in 
 town-meeting. Thus in witan and local court 
 the only popular influences actual or potential 
 are those which lie with landed men. 
 
Ill 
 
 THE NORMAN CONQUEST AND FEUDAL- 
 IZATION 
 
 Little as there was of popular influence in 
 Anglo-Saxon times, there was to be even greater 
 concentration of power in the king before the 
 processes of Uberty could gain momentum. 
 What contributed more than anything else to 
 this further centraUzation was the introduction 
 of the feudal system and its adaptation to Eng- 
 lish conditions. FeudaUzation was the most 
 important and far-reaching effect of the Nor- 
 man Conquest. Tendencies toward it had been 
 at work even during Anglo-Saxon times, but they 
 were entirely unorganized. Only when William 
 the Conqueror brought over the perfected 
 machinery of continental tenure was the feudal 
 system impressed upon England. 
 
 The continental feudalism was a compound 
 of land tenure and administration. The king 
 was the lord of all the land, which he had either 
 given from his own estates to his vassals upon 
 certain conditions or had received from the 
 
44 NORMAN CONQUEST AND FEIIDALIZATION 
 
 weaker of them and regranted upon similar 
 conditions. These conditions were that the 
 king should protect and defend the vassal and 
 that the vassal should be ever faithful and ready 
 to fight for the king. Primarily the tenure was 
 mihtary. Secondarily it was administrative, 
 since the lord had jurisdiction over his fief. 
 Now the lord had his own dependent tenants, 
 holding from him as he held from the king, 
 and in like manner the system might extend 
 for several degrees. Thus the circle about the 
 king was broken into smaller circles bound 
 to the head of the nation by the homage and 
 fealty of the lords who were their centers, by 
 the strength of the king, and by the need of the 
 lords. Let the lords thrive and the king become 
 weak, and the ties became the mere threads 
 of conscience represented by the vassals' oaths, 
 which might easily snap and let the smaller 
 circles fly upon tangents. Add to this the simi- 
 lar disruptive tendency of the smaller circle 
 with its own sub-circles, and the possibilities 
 of anarchy became serious.' 
 
 This system, so far as the tenure of land was 
 concerned, was transplanted to England. Such 
 Anglo-Saxon landowners as did homage to the 
 
 1 Stubbs, Const. Hist. §§ 92-94. 
 
NORMAN CONQUEST AND FEUDALIZATION 45 
 
 Conqueror redeemed their estates and perhaps 
 insensibly found themselves feudal vassals. 
 Those who held out lost their lands entirely 
 and saw them pass into the hands of Norman 
 feudatories. Thus gradually tenure in England 
 became feudal, and for the first time the per- 
 sonal relation between king and subject was 
 overshadowed by the territorial. The king was 
 the paramount landlord of whom every land- 
 owner held mediately or immediately.^ 
 
 The tendencies of feudalism in government, 
 being centrifugal, could hardly meet the ap- 
 proval of a conqueror who wished to enjoy the 
 fruits of his conquest. The system of feudal 
 land tenure was the only one familiar to the 
 Norman mind; hence it was retained, but re- 
 straints were sought and found which made 
 English administration centripetal and fairly 
 avoided anarchy except when the weakness of 
 Stephen allowed the reins of government to 
 fall loose. 
 
 In 1086 William the Conqueror held a great 
 gemot at Salisbury. "And there came to him 
 his witan, and all the landowning men of pro- 
 perty there were over all England, whose- 
 soever men they were, and all bowed down to 
 > Stubbs, Gmst. Hid. § 95. 
 
46 NORMAN CONQUEST AND FEUDALIZATION 
 
 him and became his men, and swore oaths oJ 
 fealty to him that they would be faithful to him 
 against all other men." * Nor was this an iso- 
 lated case, for the Conqueror required "thai 
 every free man should affirm by covenant and 
 oath that both within and without England he 
 would be faithful to King William, that he would 
 join with him in holding his lands and honoui 
 in all fidelity and would defend him againsi 
 his enemies." ^ Thus the ties of fealty were 
 made to extend not only to the center of every 
 circle and sub-circle, but to every point of their 
 circumferences. The king had directly a per- 
 sonal, though not a tenurial, hold upon every 
 landowner of the nation. 
 
 But it was most of all by means of a better 
 constituted and more centralized administra- 
 tion than England had ever known that the 
 Norman kings combated the disruptive tenden- 
 cies of feudalism. With a genius for organ- 
 ization they incorporated what was best of Anglo- 
 Saxon and Norman into a government having 
 the source of its strength in the royal power.' 
 
 * Saxon Chronicle, a. d. 1086. 
 
 " Stattdes of William the Conqueror, 2, in Stubbs, Set. Chart. 
 (8th ed.) 83. 
 ' Stubbs, Const. Hid. § 117. 
 
NORMAN CONQUEST AND FEUDALIZATION 47 
 
 Under the feudal system tenure and jurisdic- 
 tion were hereditary. Moreover they descended 
 by right of primogeniture. The sure tendency of 
 such descent in a government which centered 
 power about the king was despotism, and prac- 
 tical despotism there was in the Norman pe- 
 riod. Indeed, Dr. Stubbs beheved that if the 
 descent of the kings had been by pure heredity, 
 the forms as well as the reality of ancient lib- 
 erty would have perished.* 
 
 In the days when the German princeps was 
 the officer of the people and the occasional king 
 the mere representative of the unity of the state, 
 those dignitaries were chosen by the assembly 
 of the freemen. A rehc of this remained in the 
 election of the Anglo-Saxon king by the witan. 
 While the kingship was thus elective, it was 
 also hereditary, at least to the extent that the 
 king must be chosen from one family, although 
 he need not succeed by right of primogeniture. 
 Thus within a Hmited field of candidates the 
 witan might exercise a more or less formal 
 choice. Add to this the power infrequently 
 exercised of deposing the king, and the witan 
 will be seen to have afforded a considerable 
 restraint, which a king aiming at despotism 
 
 * Stubbs, Cmst. Hist. § 118. 
 
48 NORMAN CONQUEST AND FEUDALIZATION 
 
 must take into account.* Of this restraint the 
 Norman kings were never able entirely to rid 
 the crown, for circumstances did not permit 
 them to claim by hereditary right. Least of all 
 could the Conqueror make such a claim. It is 
 conceivable that he might have made his place 
 firm by mere force of conquest, but his policy 
 was to use pacific methods when possible. He 
 desired the support of the English, and there- 
 fore conceded them some things. He sought 
 the election of the witan, received it, and took, 
 as had his Anglo-Saxon predecessors, the oath 
 to rule justly.^ Hard upon the victory at Hast- 
 ings as this was, the election must have been 
 granted in fear and trembling, but the Con- 
 queror had retained at least the form of a con- 
 stitutional restraint. 
 
 This elective principle was kept weakly alive 
 by his three successors, none of whom could 
 claim by primogeniture and none of whom was 
 without a competitor for the throne. William 
 Rufus was the second son of the Conqueror. 
 By right of descent the throne should have gone 
 to Duke Robert, who moreover had with him 
 the majority of the barons. But William was 
 the first to arrive upon the field and secured 
 
 1 Stubbs, Const. Hist. § 58. « Ibid. §§ 95, 61. 
 
NORMAN CONQUEST AND FEUDALIZATION 49 
 
 the crown from Archbishop Lanfranc after so 
 far bending himseH as to take the oath to do 
 justice, to defend the church, and to follow Lan- 
 franc's advice.* Nor was this the end of his 
 concessions for the sake of getting the throne. 
 Robert's friends remained active, and William 
 was forced to win over the English by promises 
 of good laws, lighter exactions, and free hunt- 
 ing.=' A third time, in the fear of threatened 
 death by disease, he made similar promises.' 
 While none of these was kept, the king had 
 admitted some answerability to the nation.* 
 
 Henry I, as third son of the Conqueror, had 
 a title inferior to Robert, but he, like William II, 
 was on the spot before the heir. He therefore 
 received the election of the few barons who 
 were with the late king at his death.^ This was 
 effected only after some opposition, we are told, 
 but the claims of the man present prevailed over 
 those of the absent heir." Besides taking the 
 coronation oath, Henry, as the price of his 
 
 * Eadmer, Historia Novorum, i, 13, in Stubbs, Sel. Chart. 
 (8th ed.) 92. 
 
 2 William of Mahnesbury, Gesta Regum, iv, § 306, in Ibid. 
 ' Eadmer, Hist. Nov. i, 16, in Ibid. 
 
 * Stubbs, Const. Hist. § 105. 
 ^ Saxon Chron. a. d. 1100. 
 
 8 Ordericus Vitalis, x, 14; Will. Malm., G. R. v, § 393. 
 
50 NORMAN CONQUEST AND FEUDALIZATION 
 
 crown, issued a charter of liberties, promising 
 freedom from the unjust exactions of the past. 
 It recited that he was crowned by the "com- 
 mon consent of the barons of the whole Eng- 
 lish realm," ' and that certain of the provisions 
 were made by the "common consent" of his 
 barons.^ How far in fact he was from having 
 such a general assent may be indicated by the 
 few who went through the formality of electing 
 him and by the fact that the charter is attested 
 by only the bishops of London and Rochester, 
 the elect of Winchester, the earls of Warwick 
 and Northampton, and four barons. 
 
 Stephen could not claim as heir, but made 
 out as good a case as Norman precedent de- 
 manded, by being the first person to demand 
 the throne. He too received a formal election, 
 and was crowned, but only the archbishop, the 
 bishops of Winchester and Salisbury, and a 
 very few nobles participated.* Stephen fol- 
 lowed his uncle in giving charters promising 
 peace and justice as the price of the support 
 of churchmen and barons. 
 
 ^ Charter of Henry I, c. i, in Stubbs, Sel. ChaH. (8th ed.) 100. 
 2 Ibid. cc. 10, 13. 
 
 ' Will. Malm., Hist. Nov. i, § 11, in Stubbs, Sd. Chart. (8th 
 ed.) 114. 
 
NORMAN CONQUEST AND FEUDALIZATION 61 
 
 Now it seems apparent from the facts ad- 
 duced that the Norman kings after the Con- 
 queror did not depend for their crowns upon 
 the election of any constituted national as- 
 sembly. What they did was to obtain by pro- 
 mises of reform the support of certain of the 
 clergy and barons. Never, so far as we may 
 observe, was the number who went through 
 the form of election even moderately large. 
 The few at hand or the few whose support was 
 the most important were resorted to. They 
 gave their assent, and the rest of the nation 
 acquiesced. If further support were necessary, 
 the king would promise barons or people cer- 
 tain reforms and then forget them. Nowhere 
 is there apparent a constituted body which 
 serves as the representative of the nation in 
 restraining the king at his accession. The situ- 
 ation is not, however, devoid of hope for liberty, 
 for in it all we see the king tacitly admitting 
 his dependence upon others than himself, even 
 though those others appear in the light of per- 
 sonal adherents to his cause, rather than as the 
 constitutional donors of his crown. Those whom 
 he needed he called upon for help; those who 
 helped him obtained concessions. Here was 
 at least the basis of answerability. 
 
52 NORMAN CONQUEST AND FEUDALIZATION 
 
 Subject as the king was to practically no 
 constitutional restraint, the officers of state 
 were royal officers, answerable only to him. 
 As in the earliest Anglo-Saxon times the king's 
 administrative helpers were drawn from the 
 comitatus, so the sovereign of the Norman pe- 
 riod delegated such work as he could not do 
 in person to the members of his household.' 
 Foremost of these was the chief justiciar, who 
 acted as vice-king when his master was abroad 
 looking after his continental duchy. This of- 
 ficer became in time, under the king, the head 
 of all the judicial and financial arrangements 
 of the realm. He arose from the necessity under 
 which the king found himself of not allowing 
 the hereditary lords to absorb all the jurisdic- 
 tion of the kingdom, a necessity which the king 
 met by attempting to gather into his own hands 
 and those of his officers the control of all judi- 
 cature.^ The chancellor, in early times one of 
 the chief royal chaplains, was a sort of general 
 secretary of state, the keeper of the royal seal, 
 and the issuer of royal writs. Other important 
 officers were the treasurer, who kept the royal 
 purse and received the sheri£f's accounts, and 
 
 ' Stubbs, Canst. Hid. § 119. 
 ^ Ibid. § 120. 
 
NORMAN CONQUEST AND FEUDALIZATION 63 
 
 the chamberlain, who became the royal auditor 
 or accountant. Originally, as has been said, 
 of the royal household, these ministers of state 
 were later appointed from the ranks of the 
 barons. While the strictly household oflfices 
 became hereditary, the ministers were always 
 named by the king and were entirely dependent 
 upon him for the retention of their places. So 
 distinctly were they royal officers that until 
 the thirteenth century they often obtained their 
 appointment by purchase from the king.» 
 
 Nor was the king subject to much restraint 
 in legislative and kindred affairs. There was 
 indeed an ill-defined body which, under the 
 name of the Great Council, succeeded in some 
 sort the witenagemot. Its members were en- 
 listed from the archbishops, bishops, abbots, 
 earls, barons, and knights. All of these were 
 barons by tenure; even the clerics did not sit 
 as sapientes, for baronial tenure had been forced 
 upon them. All of them were tenants-in-chief, 
 vassals holding land directly from the king and 
 owing him allegiance. Among the barons there 
 were differences of rank. Some were greater 
 and some were less; some dealt in fiscal mat- 
 ters directly with the king, while some, among 
 
 » Stubbs, Const. Hist. § 122. 
 
54 NORMAN CONQUEST AND FEUDALIZATION 
 
 whom were most of the knights, paid their 
 dues to the sheriff. The king called to coun- 
 cil only those who would be of most service 
 to him, usually those larger baronial landown- 
 ers with whom his financial connection was 
 closest/ 
 
 In general this Great Council was connected 
 with just such business as was the witenagemot, 
 but probably its influence was of a weaker sort 
 in the Norman period. In legislation we find 
 the statutes of WiUiam the Conqueror made 
 by the king, "together with his chief men." 2 
 The ordinance of the same king separating the 
 spiritual and temporal courts was made "by 
 the common council and with the counsel of 
 the archbishops and bishops and abbots and 
 of all the chief men of the realm." ' Henry I 
 in his charter speaks of retaining the forests by 
 the "common consent of his barons" * and of 
 the laws of Edward which his father restored 
 by the "counsel of his barons." ° The fact of 
 there being only nine witnesses to this docu- 
 
 1 Stubbs, Const. Hist. §§ 123, 124. 
 
 2 Stubbs, Sd. Chart. (8th ed.) 83. 
 ' Ibid. 85. 
 
 • Charter of Henry I, c. 10, in Ibid. 100. 
 
 * Ibid. c. 13. Cf. R. Hoveden, Chronica, Li, 218. 
 
NORMAN CONQUEST AND FEUDALIZATION 55 
 
 ment suggests how slight was the influence of 
 the council in this affair. The vagueness of the 
 term "consilio baronum suorum" and the dis- 
 crepancies between the pretended "council of 
 the barons of the whole realm" and the small 
 numbers of witnesses to the charters combine 
 to arouse the suspicion that in the Norman 
 period the influence of the Great Council was 
 a theory rather than a fact, that the restraint 
 which it placed upon the king was formal 
 rather than efficient. "In private, perhaps," 
 says Dr. Stubbs, "the sovereign listened to 
 advice, but, so far as history goes, the coun- 
 selors who took part in formal deliberations 
 must have been unanimous or subservient. 
 An assembly of courtiers holding their lands 
 of the king, and brought together rather for 
 pompous display than for political business, 
 may seem scarcely entitled to the name of a 
 national council. Such as it was, however, this 
 court of bishops, abbots, earls, barons, and 
 knights was the council by whose advice and 
 consent the kings condescended to act, or to 
 declare that they acted." ' 
 
 What part did the Great Council have in 
 taxation.'' The Conqueror retained the ordi- 
 
 1 Stubbs, Cmst. Hist. § 123. 
 
56 NORMAN CONQUEST AND FEUDALIZATION 
 
 nary revenues of the English. To these he 
 added the feudal imposts,^ which, although not 
 strictly taxes, may conveniently be touched 
 upon here. A consideration of a few of the 
 most important will be sufficient. First, there 
 was the rehef, the successor of the Anglo-Saxon 
 heriot. In its earliest form the heriot was the 
 return by the dead warrior of the arms his lord 
 had given him or by the dead peasant of the 
 stock similarly acquired; the appropriation by 
 the lord of the serf's chattels, or perhaps the 
 bequest of a testator to his lord as the price of 
 the lord's warranty of his will.^ The relief was 
 an exaction which the feudal lord made of his 
 vassal's heir before he would admit the latter 
 as tenant. Such an ancient charge, in its source 
 perhaps antedating the hereditary principle, 
 was not readily to be shaken oflf when land 
 came to pass from father to son. But while 
 the heir might not free himself entirely from 
 the burden of it, he would bitterly resent any 
 arbitrary settlement of the amount by the lord. 
 William Rufus exceeded what was deemed 
 proper; he may indeed have often demanded 
 the full value of the land and forced the heir 
 
 ' Stubbs, Const. Hid. § 100. 
 
 = 1 Pollock & Maitland (2d ed.) 316, 317. 
 
NORMAN CONQUEST AND FEUDALIZATION 57 
 
 literally to buy it back.* The same king made 
 of his right of consent to the marriage of daugh- 
 ters of tenants-in-chief a claim to receive money 
 for that consent.^ Another feudal incident was 
 the right of the lord, as guardian of his vassal's 
 infant heir, to enjoy the income of the land after 
 maintaining his ward. This also William Ru- 
 fus abused.' Amercements for offenses were 
 arbitrary and might entail forfeiture of the 
 tenant's property, without reference to the de- 
 gree of the crime.^ 
 
 Similar to wardship was the right of the king 
 to hold the profits of vacant churches and turn 
 them over to the new prelates. William kept 
 the sees or abbeys vacant for long periods, gave 
 the dependent monks only a bare subsistence, 
 and appropriated the rest of the revenue.^ 
 Such arbitrary exactions of course fell heavily 
 upon the whole landowning class, as the tenants- 
 in-chief would seek to make themselves whole 
 by similar demands from their own tenants. We 
 have here another illustration of the centraliza- 
 tion of authority in the king, of the approach 
 to despotism. We can imagine that the nation 
 
 * Charter of Henry I, 2, in Stubbs, Sel. ChaH. (8th ed.) 100. 
 Note the contrast between "redimet" and "relevabit." 
 '^ Ibid. 3. « Ibid. 4. '' Ibid. 8. « Ord. Vit. viii. 8. 
 
58 NORMAN CONQUEST AND FEUDALIZATION 
 
 grumbled, but we know of no decided consti- 
 tutional protest. So strong were the kings that 
 only in the days of their own seeking were they 
 to be moved to buy support for their claims to 
 the throne by charters promising reforms in 
 these matters. That no very efl&cient part in 
 gaining them can be assigned to a legislative 
 council we have seen. On the other hand, as 
 already suggested, they had importance as 
 constructive admissions that the king was not 
 absolute in his power; yet how nearly absolute 
 he was may be judged from the promptness 
 with which he forgot his promises as soon as he 
 was firmly enthroned. It was in their griev- 
 ances, however, that the landed men were to 
 find their strength. 
 
 In the proper field of taxation we find the 
 Danegeld, which had been abohshed by Ed- 
 ward the Confessor, revived by William 'the 
 Conqueror at the rate of six shillings on the 
 hide, three times the ancient amount.^ Cor- 
 responding to the Danegeld of the country, 
 there was the auxilium burgorum of the bor- 
 oughs.^ The Domesday Survey of 1086 was 
 made that the king might know the geldable 
 
 * Florence of Worcester, A. d. 1084; Sax. Chron. A. d. 1083. 
 ^ Stubbs, Const. Hist. § 126. 
 
NORMAN CONQUEST AND FEUDALIZATION 59 
 
 property of the nation, the number of hides 
 or carucates, the number of plough oxen, the 
 annual value of the land.* We have no evidence 
 that in the levy of this tax any restraint was 
 put upon the king by the Great Council. On 
 the contrary, the words of the chroniclers sug- 
 gest nothing but a purely royal exaction.^ On 
 the occasion of his accession Stephen promised 
 to abandon unjust taxation and especially to 
 give up for ever the Danegeld, "but he kept 
 none of these oaths." ' Taxation was appar- 
 ently of the royal prerogative. Even if "it 
 must be supposed that the king would lay before 
 his barons any plan for increasing the existing 
 burdens, and that such announcement would 
 be regarded as necessary for the validity of the 
 exaction, [yet] the silence of the counselors or 
 their ready assent would be a matter of form." * 
 If the king had deferred to the council we should 
 not have such a mass of complaints of illegal 
 taxation. 
 
 * Maitland, D. B. and Beyond, 4, 5. 
 
 ^ Henry I did indeed speak of "the aid which my barons 
 gave me." 2 Chronictm Monasterii de Abingdon, 113. But the 
 "giving," judging from the examples, was doubtless not volun- 
 tary. 
 
 ^ Henry of Huntingdon, Ub. viii. 
 
 * Stubbs, Const. Hist. § 125. 
 
60 NORMAN CONQUEST AND FEUDALIZATION 
 
 Possibly the king allowed the members of 
 his Great Council a larger influence in the 
 course of general business, as in the election 
 of bishops, the discussion of foreign and ecclesi- 
 astical poUcy, war and peace, royal marriages. 
 On the whole, however, the council must have 
 been so overshadowed by the king as to be but 
 a faint forecast of the constitutional share of 
 the people in the affairs of state. 
 
 The center of the financial and administra- 
 tive machinery through which the king acted 
 was the Court of Exchequer. From the time 
 of Henry I this body consisted of the great of- 
 ficers of the household and state, of whom some- 
 thing has already been said, and of specially 
 appointed justices or barons, the chief justiciar 
 presiding. To this court the sheriffs must ac- 
 count for the income of the shires. This rev- 
 enue consisted of four parts. (1) The "firma" 
 or ferm of the shire was a composition for the 
 ancient profits of the king, including the rev- 
 enue of land belonging to the king, the early 
 hospitality due to the crown in his progresses, 
 court fines, and the like. These were computed 
 at a fixed sum, which was the rent at which the 
 county was farmed to the sheriff. The ferm 
 he must pay annually, winning profits and 
 
NORMAN CONQUEST AND FEUDALIZATION 61 
 
 standing losses. Before accounting he paid the 
 royal expenses for his county: regal benefac- 
 tions to religious houses, the maintenance of 
 the crown lands, the expenses of pubUc busi- 
 ness, and the cost of living and travel of the 
 king and retinue while in the county. (2) The 
 Danegeld and auxilium burgorum must also 
 be accounted for. These too were compounded. 
 (3) There were the proceeds of pleas of the 
 crown, — the fines for oiffehses which had been 
 taken from the ordinary jurisdiction of the shire 
 and hundred, and were tried before the sheriff 
 as justice of the crown. Examples of these pleas 
 were found in the murdrum, or fine payable 
 by the hundred in which a man was slain who 
 was not proved to be an Englishman, in fines 
 for non-attendance at the hundred or shire 
 court, in breach of the forest law. (4) Lastly, 
 the sheriff must account for the feudal in- 
 come.* 
 
 The sheriff became the great administrative 
 officer of the shire, no longer under the super- 
 vision of an ealdorman and subject to no con- 
 trol from his former adviser, the bishop. He was 
 appointed by the king, although in a few cases 
 the office became hereditary. In any event he 
 
 ' Stubbs, Canst. Hid. § 126. 
 
62 NORMAN CONQUEST AND FEUDALIZATION 
 
 was the oflScer of the king, to whom alone he was 
 responsible. As executive in matters judicial, 
 military, and financial in his shire, he did not 
 find his ancient jurisdiction enlarged; he only 
 possessed power more unrestricted in every 
 direction except kingward.' Since we find 
 fiscal administration entirely royal, we look for a 
 similar centralization in judicature. William II 
 administered justice for the profits. In this 
 he did hardlymore than any other Norman king. 
 While Henry I may have believed that a nation 
 in which justice is done is more prosperous 
 and better-natured, hence more easUy taxable, 
 revenue was even with him a chief object.' 
 
 But centralization of justice in the king was 
 slower than the similar process in legislation 
 and state business, for the king met the old local 
 courts, which, though theoretically under his 
 oflScers, were not yet sufficiently close to the 
 sovereign to be really royal. The king's imme- 
 diate jurisdiction remained for a time extraor- 
 dinary; it was for great causes and great 
 men. The king could call causes into his own 
 court, and did so when the litigants were rich 
 and powerful enough to buy the royal writ. Pleas 
 of the crown were mostly left for the sheriffs 
 
 » Stubbs, Const. Hist. §§ 98, 99. * Ibid. § 127. 
 
NORMAN CONQUEST AND FEUDALIZATION 63 
 
 to try. Sometimes the king sent a baron or 
 prelate or a commission to preside over a cause 
 in the shiremoot. Thus he drew the communal 
 courts closer to himself.' When he sat person- 
 ally, he was in earlier times surrounded by 
 the witenagemot, or its successor the Great 
 Council. Here he probably had his own way, 
 although his counselors theoretically could, 
 and often did, exercise the office of justice.^ 
 In this court of the Great Council were ad- 
 judged cases between tenants-in-chief and the 
 king's personal causes. By the time of Henry I 
 another court called the Curia Regis had be- 
 come somewhat established. It was composed 
 of almost identically the same members as the 
 Court of Exchequer, hence was completely 
 under the king's control. He personally pre- 
 sided when able; in his absence the chief jus- 
 ticiar represented him. This court considered 
 causes in which the king's interest was con- 
 cerned; such appeals as litigants were power- 
 ful enough to obtain; cases in which the powers 
 of the lower courts were exhausted, or where 
 they had failed to do justice; quarrels between 
 tenants-in-chief who were too strong to submit 
 to the shire and hundred courts. It had a rough 
 1 Stubbs, Const. Hist. § 99. ^ j^id. § 125. 
 
64 NORMAN CONQUEST AND FEUDALIZATION 
 
 sort of equity jurisdiction over cases in which 
 the old courts were too antiquated to do justice; 
 it had also some criminal jurisdiction. This 
 court in time became the supreme court of all 
 England. Henry I sometimes sent members 
 of it to sit at the county court, as had the earher 
 commissions, and this practice, although not 
 regular, did something to attract to the court 
 of the king the local justice.' 
 
 The shire and hundred courts persisted in 
 the Norman period, and, although made the 
 means of exactions or other irregularities, were 
 restored to the form of Edward the Confessor's 
 time by Henry I.'' As in Anglo-Saxon days, 
 the shire court was attended by the lords of 
 lands or their stewards, and by the reeve, priest, 
 and four men of each town. It met twice a year 
 under the presidency of the sherijBP or his deputy, 
 and the suitors were the judges. While its 
 jurisdiction was criminal as well as civil, the 
 king had taken a good part of the former (this 
 process began in Anglo-Saxon times'), and 
 
 » Stubbs, Const. Hid. § 127; 1 Poll. & Mait. (2d ed.) 108-* 
 110. 
 
 ^ Order for the Holding of the Courts of the Hundred and 
 the Shire, in Stubbs, Sd. Chart. (8th ed.) 103. 
 
 ' Stubbs, Const. Hist. § 73. 
 
NORMAN CONQUEST AND FEUDALIZATION 65 
 
 now royal writ cut seriously into the latter. The 
 regular court of the hundred, meeting twelve 
 times a year, found most of its business in the 
 jurisdiction of small debts. Twice a year it met 
 for the view of frankpledge or sheriff's tourn, 
 the inspection of the local police system.* 
 
 A few words about seigniorial justice must 
 be said. The great lords who held the larger 
 estates called manors had jurisdiction which 
 varied with the conditions attached to their 
 tenures. First, they usually had a court baron 
 or hallmoot making by-laws and transacting 
 the local business of the freeholders in the man- 
 ors corresponding to the old townships. Second 
 was the court customary in which was done 
 the business of the villeins. Where the lord had 
 a grant of sake and soke there was thirdly a 
 court leet exercising a criminal jurisdiction cut 
 out of or superseding that of the hundred, ac- 
 cording to the size of the manor. Its suitors 
 were exempt from attendance upon the crim- 
 inal business of the hundred. If the lord had 
 a grant of the view of frankpledge, his suitors 
 were excused from the sheriff's tourn. In the 
 great manors called honors, which were almost 
 shires in themselves, the suitors were freed from 
 
 1 Stubbs, Canst. Hist. § 128. 
 
66 NORMAN CONQUEST AND FEUDALIZATION 
 
 attendance upon all the old popular courts. 
 The procedure in the manorial courts, as well 
 as the suitors, was the same as in the folkmoots; 
 the newer courts were merely public jurisdic- 
 tions in private hands. Being hereditary, the 
 only ways for the crown to recover them were 
 by forcing forfeiture (which was seldom re- 
 sorted to) or by legal enactment placing them 
 under central administration (which was to 
 come in time).* 
 
 The picture presented in Norman times is 
 of a nation under a king who is in fact a despot. 
 In legislation, in administration, in taxation 
 we see the sovereign acknowledging no other 
 power except when forced to buy support. His 
 throne once assured, he again assumes abso- 
 lutism. Only in local jurisprudence is he sub- 
 ject to any check, and even though the suitors 
 here give judgment, we see the king shaping 
 the courts into a regal system by the pressure of 
 his sheriffs and specially appointed judges. The 
 manorial courts in the hands of the great land- 
 owners do indeed resist the realization of local 
 royal justice, but this resistance is a threat to 
 liberty rather than a step in its direction. No- 
 where is there a healthy popular influence in 
 
 ' Stubbs, Const. Hist. § 129. 
 
NORMAN CONQUEST AND FEUDALIZATION 67 
 
 government except at the bottom, where the 
 freeholders still transact by ancestral German 
 right their petty local business and sit in the 
 judgment of peers. For the moment the barons 
 are in eclipse. So far their enormous powers 
 have been exerted by each man for his separate 
 ends. The anarchy of Stephen's reign has re- 
 sulted. But the time when they will find in the 
 pressure of taxation a common cause is not 
 far distant. 
 
IV 
 
 JUDICIAL EEFOBMS. TRIAL BY JUEY 
 
 The inherent tendency of the feudal system 
 to the acquirement of power by the great feuda- 
 tories has been noted. A second tendency, set 
 in motion by the king, has been observed as 
 correcting the first by centraHzation, but has 
 not been followed to its end. That it was not 
 wholly evil, although despotic, has been sug- 
 gested, for the disruptive forces must be over- 
 come if the nation was to be preserved. To ac- 
 complish this the popular strength was still 
 inadequate, so the king must do it. The liberty 
 of the nation would later be won more easily by 
 an attack upon royal prerogative than by one 
 upon scattered feudatories. Indeed, until the 
 old-time provincial feeling of the people was 
 changed by the very process of centralization 
 into a full realization of national unity, the 
 mighty blows for self-government could not be 
 struck, or even desired. So in the completion 
 of the second tendency we shall see the begin- 
 ning of a third, not centrifugal like the first. 
 
JUDICIAL REFORMS. TRIAL BY JURY 69 
 
 but one which will in the end substitute the 
 popular will for 'the royal command as the ex- 
 pression of central authority. Nowhere do we 
 find the two tendencies more nicely entangled 
 than in the perfecting of the judicial organiza- 
 tion during the last half of the twelfth century, 
 a review of which will reward us with some 
 definite evidence of the contributions of the 
 landed man to civil liberty. 
 
 During the reign of Henry II the Curia Regis 
 overshadowed the Exchequer. Whereas in 
 Norman times the court proper had been the 
 judicial phase of the Exchequer, the Exchequer 
 now became rather the fiscal branch of the 
 Curia Regis. Judicature, not financial adminis- 
 tration, became the chief business of this body 
 of the king's ministers. Furthermore the Curia 
 Regis was brought into a closer touch with the 
 local courts and obtained such control of them 
 that it became the center of a related system 
 which has in the main persisted to the present 
 day.* 
 
 In the Curia Regis the king himself sat and 
 personally did justice.^ During the earlier 
 days of Henry II it was probably, as in the 
 
 » Stubbs, Const. Hist. § 163. 
 
 ^ Dialogus de Scaccario, lib. i, c. iv. 
 
70 JUDICIAL REFORMS. TRIAL BY JURY 
 
 time of Henry I, a tribunal of extraordinary 
 jurisdiction, with a small but increasing num- 
 ber of appeals. In the course of time, however, 
 the long absence of the king from the country, 
 together with the rapid increase of resort to the 
 court, required that the bulk of the work should 
 be done without the king's presence, although 
 still in his name. The number of justices grew 
 with the increase of business to eighteen, but 
 the court stiU lacked organization, and repre- 
 sentations to Henry II of failures of justice led 
 the king in 1178 to reduce the number to five, 
 who were " to hear all the complaints of the king- 
 dom and to do right, and not to depart from 
 the Curia Regis." From this dates the Curia 
 Regis "in Banco," later to become the King's 
 Bench. In it the king did not sit except on 
 especial occasions, although nominally all pro- 
 ceedings there were coram rege. Matters which 
 this court could not untangle were to be referred 
 to the king, who would decide them with the 
 advice of the wise men of the kingdom. This 
 reorganized Curia Regis had jurisdiction not 
 only over cases in which the revenue or the 
 rights of the king were concerned, but also over 
 private Utigation in which he had no interest 
 except as supreme judge, indeed over all the 
 
JUDICIAL REFORMS. TRIAL BY JURY 71 
 
 business of its later off-shoots, the King's Bench, 
 Exchequer and Common Pleas. "It was no 
 longer to be an extraordinary tribunal, a court 
 for great men, for great causes, for matters that 
 concerned the king; it was to become an or- 
 dinary tribunal for the whole realm." » 
 
 In this process of centraUzation we see the 
 king becoming stronger as the judicial head of 
 the nation; and yet his position had elements 
 of weakness to royal prerogative but for which 
 the cause of civil Uberty would have suffered 
 infinite- damage from abuse of regal control 
 of the machinery of justice. Fortunately the 
 very assumption of judicial authority by the 
 king so overwhelmed him that he was forced 
 to delegate it more than ever. He even had to 
 resort to the erection of a new court of very 
 superior rank in which he did not sit. It is true 
 that the judges were his appointees and an- 
 swerable to him, but it has well been said that 
 "whenever any number of men are collected 
 and incorporated, possessing a known name, 
 and invested with definite functions, they ac- 
 quire independence, and may ultimately thwart 
 or rival the power to which they owe their legal 
 
 * 1 Poll. & Mait. (2d ed.) 153; Stubbs, Canst. Hist. § 163; 
 Benedict, i, 207, in Stubbs, Set. Chart. (8th ed.) 131. 
 
72 JUDICIAL REFORMS. TRIAL BY JURY 
 
 existence." * So in this case the judges of the 
 Curia Regis, without the presence of the king 
 were placed where they would more and more 
 be able to declare the pure law of England un- 
 influenced by royal wiU. Not that this wane 
 of the king's impress upon judicature was 
 rapid, nor that the danger of royal interference 
 in justice passed within a few years or a century 
 or two centuries, but that the way was opened 
 for the gradual growth of judicial administra- 
 tion independent of royal caprice.^ Nor was 
 
 * 1 Palgrave, Eng. Com. 274. 
 
 ^ Now and then the sovereigns did sit in the King's Bench. 
 Edward I sat in certain Scotch cases. Burrow's Reports, 851. 
 But perhaps this was in the exercise of jurisdiction resulting to 
 him as feudal lord of Scotland, for we are told that in his time 
 the king had lost the right to interfere in private causes. 4 Black- 
 stone, Commentaries, 426. Even if the king sat in later times, he 
 was no more than a dignified figure. " In this court the kings of 
 this realm have sit in the high bench, and the judges of that court 
 on the lower bench at his feet; but judicature only belongeth 
 to the judges of that court, and in his presence they answer all 
 motions." Coke, Fourth Inditvte, 73. At the time of Henry IV, 
 at least, and doubtless earKer, it was law that none could render 
 himself to the judgment of the king. The sovereign could not give 
 justice in person even if the subject asked it. Coke, Fourth Inst. 
 71. Where the king's presence is no longer needed except as a 
 form, he will not long remain. But though his actual presence 
 passed, men invented a fiction. "The king is supposed in con- 
 templation of law to be always present; but as that is in fact 
 impossible, he is there represented by his judges, whose power 
 
JUDICIAL REFORMS. TRIAL BY JURY 73 
 
 the delegation of judicial business the sole, or 
 even the most influential cause of the final loss 
 of royal prerogative. That it was one of the 
 causes is sufficient for our present inquiry. 
 
 The reorganization of the Curia Regis must 
 have been occasioned in part by the demand 
 of the people for a better administration of jus- 
 tice. The Anglo-Saxon kings in their progresses 
 had come in a large degree to oversee the Com- 
 mon Pleas,* and the people looked more and 
 more to the king for justice. The Norman kings 
 kept up the progress to some extent, but could 
 not give it very close attention on account of 
 their frequent and long absences upon the Con- 
 tinent. Now this body of Common Pleas con- 
 stantly increased, and with it the king's justice 
 came into greater demand. With the total of 
 business increasing and the available royal 
 
 is only an emanation of the royal prerogative." 3 Bl. Com. 24. 
 Even Blackstone's fiction is now negligible; it survives only in 
 the name of the court and in the king's name on the writs; but 
 these are only a shadow of antiquity, innocent bits of conserva- 
 tism which have no substance. The day of prerogative is past. 
 The court is the nation's, not the king's; but the king is the 
 dignified element of the nation, its personification, so it does no 
 harm to call the people's court the King's Bench. It should 
 serve to remind the people that they have won their Uberties 
 from the king. 
 * Maine, Early Law and Custom, 187. 
 
74 JUDICIAL REFORMS. TRIAL BY JURY 
 
 time diminislied, it is easily imaginable that 
 respectful pressure would be brought upon the 
 king to relieve the situation by some process of 
 delegation to his justices and by some organi- 
 zation of his court. 
 
 An illustration of the gravity of the situation 
 may be found in the familiar story of Richard 
 de Anesty.' Having a suit for the recovery of 
 land which -he claimed as heir, Anesty was 
 forced during the years 1158 to 1163 to be in 
 constant pursuit of Henry II. Three times he 
 had to send messengers to the king, then in 
 Normandy, for the royal writ; once he went 
 himself for a similar purpose. Finally, when 
 Henry returned to England, Anesty had to fol- 
 low him pretty much all over the country before 
 he got a hearing. Even then it was at the ex- 
 pense of a small douceur to the queen and of a 
 handsome bribe to the king.^ Meanwhile, for 
 the support of his oath-helpers whom he had 
 to carry with him, his traveling expenses, fees, 
 bribes and all, he had to resort to usurious loans 
 
 ' 2 Palgrave, Eng. Com. v, et seq. 
 
 ^ The story further illustrates the need and perhaps the 
 cause for chapter 40 of Magna Carta, "Nulli vendemus . . . 
 rectum aut justitiam," for even the admirable Henry II sold 
 justice. So, too, did the venerated Edward the Confessor. 
 1 Palgrave, Eng. Com. 650. 
 
JUDICIAL REFORMS. TRIAL BY JURY 75 
 
 from the Jews. Doubtless this incident was typ- 
 ical of many. Unquestionably those who suf- 
 fered such grievances the most were the men of 
 large landed interests whose causey, being the - 
 most important of the realm, were probably al- 
 most the sole ones carried to the king's court. It 
 took wealth to press a suit in such a court, and 
 landowners were almost the only wealthy men. 
 Among the merchants only were there found 
 men of much personal property, and they did 
 not come much under the regular judicial ad- 
 ministration, for in exchange for grants of taxes 
 the boroughs early won independent exercise of 
 jurisdiction in their own courts and according to 
 their own customs. * Fortunately those who thus 
 suffered the most were the barons who could 
 vindicate their right to better justice. 
 
 That the landowners did not keep their 
 grievances to themselves, but complained to 
 the king seems reasonably certain. It appears 
 that in 1178 Henry II made an investigation 
 into the workings of justice and found that they 
 were not as they should be. The result was the 
 choosing of the new Curia Regis of five jus- 
 tices, "with the advice of the wise men of the 
 kingdom." ^ The use of the council here, in 
 
 1 Stubbs, Const. Hid. § 165; 1 PoU. & Mait. (2d ed.) 643. 
 ^ Benedict, i, 207, in Stubbs, Sel. Chart. (8th ed.) 131. 
 
76 JUDICIAL REFORMS. TRIAL BY JURY 
 
 connection with, the undoubted fact of the griev- 
 ances, suggests that some very considerable in- 
 fluence in the reorganization of the court was 
 exerted by the landowners. Less than forty 
 years later the barons wrung from the king the 
 provision that the Common Pleas should no 
 longer, as they did meanwhile, follow the per- 
 son of the king or justiciar,* but should be held 
 at Westminster,* to the great cheapening and 
 expedition of justice. Here then is one point 
 where the landed man touched the judicial sys- 
 tem and bettered it, thus aiding the cause of civil 
 liberty. 
 
 More important than the delegation of the 
 king's judicial authority or than the reorgan- 
 ization of his court was the manner in which 
 this court reached down even further than in 
 the Norman period and drew local judicature 
 into a central system, thus causing most of the 
 large increase which has been noted in the busi- 
 ness of the Curia Regis. We must consider 
 somewhat this process of amalgamation of the 
 national and local justice. In it we find as the 
 
 * Although the king did not sit in the deliberations of the 
 Curia Regis after 1178, the court did go where he or his justiciar 
 (in the king's absence from the realm) went. The dependence 
 of the court upon the person of the king was slowly lost sight of. 
 
 * Magna Carta, c. 17. 
 
JUDICIAL REFORMS. TRIAL BY JURY 77 
 most important factors the introduction of itin- 
 
 • ■ ♦ 
 
 erant justices and of trial by jury. 
 
 In connection with itinerant justices, we 
 again find that royal judicature was at bottom 
 fiscal. During the reign of Henry I, to recur 
 to Norman times, we find that officers of the 
 Exchequer were sent throughout the country 
 to assess the revenue and see that all the lands 
 bore their share of the taxes and imposts.* Now 
 and then we hear of justices of the king holding 
 a county court, but seemingly these are unusual 
 cases, not instances of a regular practice.^ Prob- 
 ably the system gained regularity upon the 
 fiscal side before it did upon the judicial, and 
 succeeded so well in the former respect that it 
 was adopted in the latter. The principle, first 
 invented as a means by which the king could 
 secure his fiscal rights from the landed class, 
 met one need so fuUy that it was extended to 
 another and became a security of the rights of 
 man against man and of the subject against 
 the king. Itinerant justice, as a prompt and 
 cheap means of obtaining right from the king, 
 was an inestimable boon. Here again we find 
 
 ' Stubbs, Const. Hid. § 126. 
 
 * See the cases of Ralph Basset, Stubbs, Const. Hist. § 127; 
 and of Constable Henry of Essex, Ibid. § 137. 
 
78 JUDICIAL REFORMS. TRIAL BY JURY 
 
 the landed man vitally connected with the de- 
 velopment of a national judicature, which, at 
 first royal, was to become in time divorced from 
 prerogative and essentially popular. 
 
 But it was not only because the judicial iter 
 was copied from and in early times made in 
 conjunction with the fiscal iter, that the landed 
 man influenced it; he had also something to 
 do with the occasion of its adoption as a definite 
 system. That occasion was the taking of the 
 assizes. Until the introduction of these we have 
 no record of anything like a system of judicial 
 circuits. If we find one iter it seems unrelated 
 to any other; it is not part of a scheme. But 
 simultaneously with the assizes came the di- 
 vision of England into circuits, and the sending 
 out of justices according to a definite system.' 
 Then, so far as we can observe, itinerant justices 
 first became what may properly be called an 
 institution. Some connection this institution 
 must therefore be inferred to have with the as- 
 
 * England seems first to have been divided into circuits by 
 the Assize of Northampton. The assizes, being local inquests 
 before the king's court, could be held only by judges sent out 
 into the country. The largely increased business of the assizes, 
 added to the hearing of presentments assigned to such judges 
 by the Constitutions of Clarendon, demanded the organization 
 of itinerant justice into circuits. 
 
JUDICIAL REFORMS. TRIAL BY JURY 79 
 
 sizes; and the inference finds support in the 
 provision of Magna Carta that itinerant justices 
 shall be sent out four times a year to take the 
 assizes of Novel Disseisin, Mort d' Ancestor 
 and Darrein Presentment.' What we shall here- 
 after say of the influence of the landed man 
 through the assize upon trial by jury will there- 
 fore help us to realize his share in the intro- 
 duction of itinerant justices. 
 
 Another illustration of the increasing rela- 
 tion between the county courts and the Curia 
 Regis is found in the events of 1170. Henry II 
 returned from Normandy to be met by com- 
 plaints of the oppressions of the sheriffs and 
 bailiffs. Perhaps he would not so willingly have 
 made any motion in the matter had he not been 
 anxious to have his son Henry crowned. With 
 a view to getting the consent of the barons to 
 this unusual proceeding he was quite wilhng to 
 yield to the demand for relief from the sheriffs, 
 and in the Great Council he removed all the 
 sheriffs and issued a commission for an inquiry 
 into their acts by barons deputed to take oaths 
 of all the barons, knights and freeholders of 
 each county. Most important of all, he re- 
 placed the old sheriffs, who were mostly local 
 
 ' Mag. Cart. c. 18. 
 
80 JUDICIAL REFORMS. TRIAL BY JURY 
 
 magnates with an inclination to feudal admin- 
 istration of justice, by officers of the Exchequer. 
 Thus we see another step in the process of con- 
 centration. That the complaints of the op- 
 pressed landowners had some influence upon 
 the reform is clear; on this occasion the Great 
 Council must have given a consent which was 
 somewhat more than formal.* The sheriffs 
 now began to lose judicial power, being pushed 
 aside by the new itinerant justices. They had 
 formerly not only presided in the county courts, 
 but had also as justices held Pleas of the Crown. 
 In 1166 the Assize of Clarendon shows them 
 the equals of the itinerant justices, separately 
 receiving the presentment of the grand jury.'' 
 Ten years later, in the Assize of Northampton, 
 the itinerant justices held first place.' In 1194 
 sheriffs were forbidden to be justices, and elect- 
 ive coroners were provided to keep Pleas of the 
 Crown.^ Magna Carta completed the dis- 
 placing of the sheriffs as justices by declaring 
 that neither they nor the coroners nor other 
 
 1 Sd.ChaH.(8thed.)U7; Benedict,!, 4, in Ibid. 130; Stubbs, 
 Const. Hid. § 142. 
 
 ^ Assize of Clarendon, 1, in Stubbs, Sd. Chart. (Sth ed.) 143. 
 
 3 Stubbs, Sel. Chart. (8tli ed.) 150. 
 
 * Form of Proceeding on tbe Judicial Visitation, cc. 20, 21, 
 in Stubbs, Sel. Chart. (8th ed.) 259. 
 
JUDICIAL REFORMS. TRML BY JURY 81 
 
 bailiffs of the king should hold Pleas of the 
 Crown.' The itinerant justices were thus left 
 as the presidents of the county courts, the firm 
 bond between the local tribunals and the 
 Curia Regis.^ 
 
 We now come to the second great means by 
 which the amalgamation of the courts was 
 brought about, — the assizes. These, it will 
 appear, were instituted largely through the 
 influence of the landed man. Aside from the 
 fact that they helped to draw local and national 
 justice together, they have great interest be- 
 cause they developed into the jury system, an 
 appUcation of the ancient principle of judg- 
 ment by peers to a court which, though in form 
 royal, was made by the jury to preserve the 
 traditions of popular justice. The right to trial 
 by jury is a Hberty of which Englishmen are 
 justly proud, for it is peculiar to their consti- 
 tution, and, more than that, the strongest guar- 
 anty of justice. Blackstone speaks of the jury 
 as the "palladium" of liberties,' the "glory 
 of the English law," the one thing which will 
 save the freedom of Englishmen from the loss 
 which befell Rome, Sparta, and Carthage.* 
 
 ' Mag. Cart. c. 24. * Stubbs, Crnisl. Hid. § 163. 
 ' 4 Bl. Cmn. 350. * 3 Bl. C<m. 379. 
 
82 JUDICIAL REFORMS. TRIAL BY JURY 
 
 Trial by jury is not the jvdicum parium se- 
 cured by Magna Carta; * it was not in use in 
 1215. Tbe assizes, the only existent institu- 
 tions analogous to trial by jury, were protected 
 by separate clauses.'' The phrase of Magna 
 Carta refers to the general principle of German 
 law which we have found in England expressed 
 in the countjf and manorial courts. Attempts 
 have been made to find the origin of the jury 
 in Anglo-Saxon jurisprudence, but its distin- 
 guishing machinery is nowhere apparent there. 
 We cannot connect it directly with the custom 
 of popular suit at the local courts, for the suitors 
 were judges of the law, not of the facts. Nor 
 do we find its germ in Anglo-Saxon compurga- 
 tion, for the compurgator pledged his faith 
 to the credibility of the Utigant whose state- 
 ments were in issue, while the juror swore to 
 facts of his own knowledge.' The twelve senior 
 thegns in the shiremoot who accused crim- 
 inals foreshadow the grand jury of presentment, 
 not the trial jury.* The idea of popular justice 
 underlying trial by jury was indeed Anglo- 
 
 ' Mag. Cart. c. 39; 1 Palgrave, Eng. Com. 244. 
 
 " Mag. Cart. cc. 18, 19. 
 
 ' 1 Palgrave, Eng. Com. 249; Stubba, Const. Hist. § 164. 
 
 * Stubbs, Const. Hist. § 164. 
 
JUDICIAL REFORMS. TRIAL BY JURY 83 
 
 Saxon and Germanic, but the machinery which 
 appHed the old principle in an entirely new 
 form came to England with the Normans. This 
 machinery was the inquest, long used among 
 the Franks in fiscal business and adapted in 
 England to judicial affairs.* 
 
 One of the earHest, if not the first, use of 
 recognition by sworn inquest in England was 
 in 1070 when William the Conqueror gave the 
 people the laws of Edward the Confessor, The 
 king wished to know what the laws were, and 
 found out in the way that the Franks had of 
 getting information. He had twelve "noble 
 and wise Englishmen learned in the law" come 
 before him from each county and on their oath 
 declare what were their laws and customs.^ 
 But the great inquest of the Conqueror was 
 fiscal, — the Domesday Survey of 1085. A rate- 
 book being needed for the assessment of Dane- 
 geld, William obtained it in some such manner 
 as he had discovered the laws. Commissioners 
 were sent out with interrogatories upon which 
 they took the sworn testimony of the men at 
 
 * 1 Poll. & Mait. (2d ed.) 140, 143; Thayer, Preliminary 
 Treatise on Evidence at the Common Law, 47, 48. 
 
 * Roger de Hoveden, ii, 218, in Stubbs, Sd. Chart. (8th ed.) 
 81. 
 
84 JUDICIAL REFORMS. TRIAL BY JURY 
 
 the shiremoot. The magnates of the shire 
 spoke for the county at large. The men of each 
 hundred stated the rating of each vill of the 
 hundred, who held land, how much each held 
 and "of" whom. The township also had its 
 sworn representatives in the priest, the reeve, 
 and six villeins.* Probably recognitions were 
 confined largely to fiscal business such as as- 
 sessment until the time of Henry II. We do, 
 indeed, find a few cases of judicial inquests,' 
 but such cases were special, not regular." An 
 examination of the instances collected by Pal- 
 grave* leads to the conclusion that there was 
 no uniformity in the number of jurors sum- 
 moned and little resemblance between the cases 
 in the manner of procedure. The inquest was 
 not yet established as a judicial institution. 
 
 The date of the emergence of the inquest, as 
 a regular mode of justice and not a special 
 favor, must be set at the year 1164, when the 
 Constitutions of Clarendon were issued. While 
 these constitutions pretend to be a recording 
 
 * Maitiand, D. B. and Beyond, 10-12; 2 Palgrave, Ev^. 
 Com. ccccxliv; Stubbs, Const. Hid. § 126. 
 
 ^ Stubbs, Canst. Hid. § 128. 
 ' Thayer, Prelim. Treed. 51-53. 
 
 * 2 Palgrave, Eng. Com. clrsviii, et seq. 
 
JUDICIAL REFORMS. TRIAL BY JURY 85 
 
 of ancient "customs and liberties and digni- 
 ties," they contain the first statutory mention 
 of recognition. More than that, it is the earU- 
 est document of any sort which refers to a judi- 
 cial inquest as a definite procedure prescribed 
 in a certain class of cases. A custom had doubt- 
 less been growing up to apply the inquest in 
 such scattered judicial cases as the king saw fit 
 to grant a writ for, but nowhere before do we 
 hear of a writ which might be demanded of 
 right. Here for the first time we see a fixed in- 
 stitution. Among the provisions of the con- 
 stitutions we find this: In case of a dispute 
 between clerk and layman as to whether a tene- 
 ment was eleemosina or lay fee, it was to be 
 determined by the recognition of twelve lawful 
 men ' in the presence of the justice of the king 
 whether (utrum) the tenement was of one kind 
 or the other. If found to be eleemosynary the 
 plea was to be taken to the ecclesiastical court 
 for adjudication, otherwise to the Curia Regis.'' 
 This assize utrum is a landmark in the advance 
 
 * The probusetlegalis homowho served as recognitor was afree- 
 man holding land. Blackstone defined him as the holder of free 
 land of the value of 40*. per annum, qualified to serve on the 
 jury and to vote for knights of the shiie. 1 Bl. Com. 406, 407. 
 
 * Const. Clar. c. 9, in Stubbs, Sd. Chart. (8th ed.) 137. 
 
86 JUDICIAL REFORMS. TRIAL BY JURY 
 
 toward concentration of local and national 
 justice. 
 
 It was followed soon after by the assize of 
 novel disseisin.^ This provided that if a person 
 were disseised, that is, dispossessed of his free 
 tenement unjustly and without a judgment, he 
 should have a royal writ, an assize (or "jury") 
 should be impaneled, and if the plaintiff were 
 declared by the recognitors to have been un- 
 justly disseised, he was to be restored to pos- 
 session. This was a revolutionary measure, 
 one of the most important ever enacted in Eng- 
 land. By it possession, as distinguished from 
 ownership, was protected by an exceedingly 
 rapid remedy. We will suppose that A and B 
 both claimed title to the same land. In the de- 
 cision of the dispute, according to the old 
 method, the possessor would have the advan- 
 tage, for he would be defendant and as such 
 would merely have to swear that the land was 
 his and get oath-helpers to swear that his oath 
 was credible. As has been said by Professors 
 Pollock and Maitland, not only did the burden 
 of proof lie on the plaintiff, the benefit of the 
 proof was enjoyed by the defendant. It there- 
 
 ' Probably at the council at Clarendon in 1166. 1 Poll. & 
 Mait. (2d ed.) 137, 145. 
 
JUDICIAL REFORMS. TRIAL BY JURY 87 
 
 fore happened that if A was in possession, B 
 might turn him out in order that he might get 
 the benefit of being defendant. It was to avoid 
 just such cases as this that the new assize gave 
 A a speedy return to his normal advantage 
 by means of an inquest of neighbors capable 
 of declaring who had the right to possession. Of 
 course the assize proved popular, and very 
 soon brought into the king's court not only 
 great men but humble persons of small hold- 
 ings. The poorest man found protection from 
 the danger of feudal justice, even against the 
 king.* 
 
 Ten years later came a third assize, the mort 
 d'ancestor. While the novel disseisin forbade 
 a man, even though the rightful owner, to turn 
 out the one in actual possession without judg- 
 ment, the mort d'ancestor secured the posses- 
 sion to the heir of one who died seised of more 
 than a life interest against even a person hav- 
 ing a better title. The latter must secure his 
 rights by an appeal to law; forcible seizure 
 could not be allowed. If the claimant did take 
 the land, the heir had his possessory action. 
 While this assize, like the novel disseisin, was 
 thus a declaration of the supremacy of law 
 
 1 2 PoU. &Mait. (2d ed. ) 47; 1 Ibid. 137. 
 
88 JUDICIAL REFORMS. TRIAL BY JURY 
 
 over force, it was also another blow at feudal 
 justice made necessary by the fact that the man 
 who seized the land was usually the dead ten- 
 ant's landlord, who took this unlawful means 
 of enforcing some pretended seignorial claims.' 
 
 A fourth "petty assize" instituted about 
 the same time was that of darrein presentment. 
 If a church were vacant and two persons quar- 
 reled as to the right of presentment, an inquest 
 of neighbors was held to declare who presented 
 the last parson. Such possessory judgment 
 having been given, the last presenter could 
 dispose of the advowson, and his opponent 
 was left to his proprietary action, which must 
 also be in the king's court, and in which the 
 defendant could put himself upon the "grand 
 assize." Here the royal justice absorbed not 
 only the local and feudal, but also the ecclesi- 
 astical.* "It is probable that for a short while 
 a few other cases were met in a similar fashion; 
 but in a little time we have these four and only 
 these four petty assizes." ' 
 
 The "grand assize" of Henry II completes 
 the list. While the petty assizes had to do only 
 with the right to possession, this was resorted 
 
 * 1 Poll. & Mait. (2d ed.) 147, 148. 
 
 ^ Ibid. 148. s Ibid. 149. 
 
JUDICIAL REFORMS. TRIAL BY JURY 89 
 
 to as a means of determining title. If a pro- 
 prietary action for land arose, the tenant or 
 defendant could have a royal writ which gave 
 him two important privileges. First, his case 
 would be removed from the feudal court, where 
 he would with difficulty get justice even if the 
 plaintiff were not the lord. Second, he could 
 escape the hateful trial by battle and have his 
 case determined by an inquest of neighbors 
 before the king's justice. Again the king's court 
 cut into feudal jurisdiction.* Thus the first, 
 and for some time the only clear, instances of 
 judicial inquest which a party could claim as 
 of right, related to suits of land or some thing 
 growing out of land, for the advowson was a 
 right connected with real property. 
 
 It must not be thought that the assize was 
 precisely like our modern jury ; the fact is 
 that it was in some respects strikingly different. 
 The recognitors were twelve men who knew 
 the facts of the case and who were on their oath 
 to declare which party was in the right. If in 
 the panel any were found who did not know 
 the "truth of the thing," they were rejected 
 and others called until twelve men were found 
 who were cognizant of the facts. If the jury 
 
 * 1 PoU. & Mait. (2d ed.) 147. 
 
90 JUDICIAL REFORMS. TRIAL BY JURY 
 
 disagreed, talesmen were drawn until at least 
 twelve were for one party.* Thus the jurors 
 were witnesses, not judges of the facts upon 
 the testimony of others. 
 
 Special writs for recognitions in cases other 
 than the assizes are found running into the 
 reign of Henry III,^ but they are evidently ex- 
 pressive of royal favor rather than of regular 
 procedure. The growth of the use of the jury 
 in civil cases was rapidly extended, however, 
 by consent of the parties, who recognized the 
 many advantages of the system, and by the 
 year 1275 it was the common law method of 
 trial where no other was fixed.' 
 
 Jury trial in criminal law came about in a 
 somewhat different way. The Assize of Claren- 
 don provided that the royal justices and the 
 sheriflFs should have inquisition made in each 
 county upon the oath of twelve lawful men of the 
 hundred and four legal men of the town as to 
 who were reputed guilty of murder, robbery, and 
 larceny, and of receiving such criminals.* Here 
 
 * Glanvill, Tradatus de Legibus et Consuehidinilms Angliae, 
 lib. ii, c. 17, in Stubbs, Set. Chart. (8tli ed.) 162. 
 
 * 2 Palgrave, Eng. Com. clxxviii, et seq. 
 ' Thayer, Prdim. Treat. 59, 60. 
 
 * Assize of Clarendon, 1, in Stubbs, Sd. Chart. (8th ed.) 143. 
 
JUDICIAL BEFORMS. TRIAL BY JURY 91 
 
 we seem to have the successors of the twelve 
 senior thegns of the hundred accusing crim- 
 inals in the shiremoot, the development of the 
 jury of accusers of the neighborhood ordered 
 to be used in ecclesiastical courts by the Con- 
 stitutions of Clarendon,' and the forerunner 
 of our jury of presentment. If any were charged 
 with crime, they were put to the ordeal of water.^^ 
 But passing through the ordeal was not a full 
 acquittal; it merely let the prisoner off with his 
 life provided he left the kingdom within eight 
 days.' This Assize of Clarendon thus did away 
 with compurgation in criminal cases. When 
 ordeal was abolished about 1218, in conse- 
 quence of the decree of the Lateran Council 
 of 1215,* the prisoner was then left with no 
 appeal from the presentment of the assize. 
 Trial by combat could be had only when there 
 was a prosecutor to demand it, and such ap- 
 peals were becoming less frequent. Hence the 
 recognition was borrowed from the civil side 
 of the law in order to meet the requirement 
 for a trial of the facts in criminal cases.^ 
 
 1 Const. Clar. 6, in Stubbs, Sel. ChaH. (8th ed.) 137. 
 ^ Assize of Clar. 2. 
 
 ' Ibid. 14. The Assize of Northampton, c. 1, made similar 
 provisions, applicable also to forgeiy and arson. 
 * Thayer, Prelim. Treat. 37. 
 = Ibid. 41; 1 Palgrave, Eng. Com. 266, 267. 
 
92 JUDICIAL REFORMS. TRIAL BY JURY 
 
 The development of the jury, thus used in 
 both criminal and civil cases, from a body of 
 witnesses declaring the facts of their own know- 
 ledge to the modern jury judging the testimony 
 of others, requires a few words. "As it became 
 difficult to find juries personally well informed 
 as to the point at issue, the jurors summoned 
 were allowed first to add to their number per- 
 sons who possessed the requisite knowledge, 
 under the title of afforcement.* After this pro- 
 ceeding had been some time in use, the aflforc- 
 ing jurors were separated from the uninformed 
 jurors and reUeved them altogether from their 
 character of witnesses. The verdict of the jury 
 no longer represented their previous knowledge 
 of the case, but the result of the evidence af- 
 forded by the witnesses of the fact; and they 
 became accordingly judges of the fact, the law 
 being declared by the presiding officer acting 
 in the king's name." ^ Or in another way we 
 may find the jurors becoming judges of the 
 facts. In the case of novel disseisin, for exam- 
 ple, the question in its simple form would be, 
 Was the plaintiff seised ? The assize could an- 
 
 » Cf. GlanYill, De Leg. Ang. Ub. ii. c. 17, in Stubbs, Sd. 
 ChaH. (8th ed.) 162. 
 => Stubbs, Cmst. Hist. § 164. 
 
JUDICIAL REFORMS. TRIAL BY JURY 93 
 
 swer Yes or No, and judgment would be given. 
 But sometimes the defendant would plead some 
 exceptio, some special plea alleging a reason 
 why the question should not be put; and this 
 grew more frequent as time went on. The jus- 
 tices also began to require the plaintiff to set 
 out his case, and this fact and the special pleas 
 often raised side issues which necessitated the 
 conversion of the assize into a jury. The ver- 
 dict of the twelve men which had been sum- 
 moned, or perhaps of another twelve, was taken 
 about the new question which had arisen from 
 the pleadings.* 
 
 Thus trial by jury had its formal and definite 
 origin in the assizes, and a very striking fact 
 for us is that these assizes at the first had to 
 do with land, and land only. Here we find the 
 landed man in contact with an important move- 
 ment which led immediately to the building 
 up of the judicial system and ultimately to 
 that cardinal feature of it, the highly prized 
 
 jury. 
 
 The fact that an extension of the inquest 
 took place in Normandy at about the time of 
 the introduction of the assizes into England 
 
 » 2 Poll. &Mait. (2ded.)48. For a fuller treatment, see Ibid. 
 6ia-628. 
 
94 JUDICIAL REFORMS. TRIAL BY JURY 
 
 has suggested the thought that Henry II may 
 have evolved the reform in his unaided mind.' 
 This, however, is hardly a necessary conclu- 
 sion. Assuming Henry to have been (as he is 
 always represented) an unusually wise legis- 
 lator, he would hardly impose a new method 
 of procedure where there was no need of it. 
 Where there was need, there would be some 
 sort of demand from those who felt the need. 
 GlanviU spoke of "magna assisa, regale quod- 
 dam beneficium, dementia principis de con- 
 silio procerum populis indultum." ^ The writer 
 was Henry's chief justice and spoke of his 
 own knowledge. When he called the grand 
 assize " a regal benefit, a favour granted by the 
 clemency of the prince," what did he mean ? 
 In a certain sense everything coming from the 
 king's hand was a favor. As the chief legislator 
 of the nation, he bent to his subjects; but the 
 grant of a favor could not be made by a sov- 
 ereign ignorant of the needs of his beneficia- 
 ries. It can hardly be doubted that even in 
 times of the strongest prerogative, the subjects 
 found some respectful means of making those 
 
 * 1 Palgrave, Eng. Com. 243. 
 
 2 GlanviU, De Leg. Ang. lib. ii, c. 7, in Stiibbs, Sd. Chart. 
 (8tli ed.) 161. 
 
JUDICIAL REFORMS. TRIAL BY JURY 95 
 
 needs known, so that the king did not always 
 bend of his own motion. When the king had 
 something to ask of the barons, he often granted 
 favors which were not voluntary. The counsel 
 of the barons, in theory always necessary to 
 legislation, was thus in practice sometimes 
 more than mere advice. Glanvill's words are 
 modified by the usual phrase, "with the con- 
 sent of the nobles." Whether this consent was 
 merely formal, or whether it was advice of an 
 urgent nature, we may unfortunately not know, 
 as the circumstances attending the granting of 
 the grand assize have never been ascertained. 
 We may, however, with some safety guess that 
 it was not the former. 
 
 Of the conditions attending the introduction 
 of the assize utrum we know considerable. The 
 preamble of the Constitutions of Clarendon 
 shows that they grew out of disputes between 
 the clergy upon the one hand and the king's 
 justices and the barons of the realm upon the 
 other. ' The bone of contention was the juris- 
 
 * "Propter dissensiones et discordias quae emerserant inter 
 clerum et Justitias domini regis et barones regni de consuetu- 
 dinibus et dignitatibus, facta est ista recognitio coram archi- 
 episcopis et episcopis et clero et comitibus et baronibus et pro- 
 ceribus regni." Stubbs, Sel. ChaH. (8th ed.) 137. 
 
96 JUDICIAL REFORMS. TRIAL BY JURY 
 
 diction of the temporal courts over clerics. 
 The result, so far as we are presently concerned, 
 was the assize utrum by which certain causes 
 as to land between the clergy and the laity were 
 to be settled by the oath of twelve lawful men.* 
 The preamble further tells us that the council 
 made an inquest of the customs and Uberties 
 of the times of Henry I, and that the Consti- 
 tutions are a partial recital of the same, but it 
 has already been noted that we cannot trace 
 the use of an assize as an established and pre- 
 scribed mode of procedure beyond these very 
 Constitutions. In view of this fact and of the 
 quarrel which led to the council, is it not prac- 
 tically certain that we find here a sort of treaty 
 of peace which gave the barons a right which, 
 while not without various disconnected pre- 
 cedents, yet as an absolute right was novel.'' 
 The barons may well be beUeved to have forced 
 this result in protection of their landed inter- 
 ests. 
 
 In the absence of any knowledge as to the 
 exact date of the grand assize, we may not know 
 whether that great boon was copied after the 
 assize utrum, but the latter may perhaps be 
 the earUer and the pattern. The darrein pre- 
 
 * Cap. 9. 
 
JUDICIAL REFORMS. TRIAL BY JURY 97 
 
 sentment was undoubtedly of later origin. The 
 Constitutions of Clarendon do indeed provide 
 that questions as to advowsons shall be decided 
 in the king's court,* but the absence of any 
 reference to an assize makes it probable that 
 such process was not used in this connection 
 until later.^ The two remaining assizes, novel 
 disseisin (1166) and mort d'ancestor (1176), 
 were obviously of later growth and were very 
 likely based largely upon the analogy of the 
 assize utrum. 
 
 We may make ample allowance for the in- 
 fluence of the constructive legal mind which 
 Henry undoubtedly possessed and still have 
 room for the influence of the landed man upon 
 the assizes. Probably all were issued in coun- 
 cil. That this was true of the grand and utrum 
 we have already seen. As to darrein present- 
 ment we have no knowledge. Novel disseisin 
 is assigned by Pollock and Maitland to the 
 council of Clarendon in 1166,' and mort d' an- 
 cestor is generally supposed to have had its 
 
 » Const, of Clar. 1, in Stubbs, Sd. Chart. (8th ed.) 137. 
 
 * Compare 1 Poll. & Mait. (2d ed.) 148, showing that real 
 occasion for a possessory action in adrowsons did not arise until 
 1179. 
 
 » 1 PoU. & Mait. (2d ed.) 145. 
 
98 JUDICIAL REFORMS. TRIAL BY JURY 
 
 origin in the fourth clause of the Assize of 
 Northampton. That the barons present in all 
 these councils would not be satisfied with mere 
 perfunctory consent to measures of such value 
 to them as landowners seems certain. Such 
 reforms would scarcely be imposed upon un- 
 willing advisers; on the other hand, the barons 
 would the rather ask for them. What their 
 temper in the matter was may be illustrated by 
 their demand forty or fifty years later for the 
 protection of the assizes.' That, on the other 
 hand, they were wrung from an unwilEng mon- 
 arch there is no warrant for assuming. Un- 
 doubtedly Henry was very ready to use this 
 method of strengthening the royal justice. Just 
 the proportion which the two influences bore 
 to each other wiU never be ascertained. It is 
 sufficient for our present inquiry that we have 
 clear evidence that the landed man has here 
 left his impress upon civil liberty. 
 
 If we were to sum up the chief elements which 
 joined to build up this central system of judi- 
 cature reaching down to the local by means of 
 itinerant justices and the embryonic jury, we 
 should find them three in number. First, there 
 
 * Mag. Cart. cc. 18, 19. 
 
JUDICIAL REFORMS. TRIAL BY JURY 99 
 
 was the need of the king by commissions and 
 inquests to see that the landed man, in mat- 
 ters of taxation, was doing right to the sov- 
 ereign. Second, there was the need of the landed 
 man for a better means of securing his property 
 rights against his neighbor and the king, a need 
 which found expression in demand for relief. 
 Third, there was willingness on the part of the 
 king to grant reform (1) because of the need 
 he had of the financial support of the landed 
 man, (2) because of his desire to overcome the 
 remnants of justice in the hands of the old Nor- 
 man feudatories who were now passing. In 
 every one of these elements we find the landed 
 man a factor of importance. Thus at every 
 point of the marvelous development of na- 
 tional justice which not only secured right to 
 Englishmen, but which also was of uncount- 
 able value in unifying the people and preparing 
 them for seK-government, the landed man left 
 his impress. 
 
THE STRUGGLE FOR MAGNA CARTA 
 
 The progress of liberty seems ever inseparable 
 from the subject of taxation. Just now we have 
 traced the fiscal origin of one of our free in- 
 stitutions, and on several occasions we have 
 seen the subject winning concessions from the 
 sovereign in return for financial support or 
 personal service. Frequently liberty was won 
 by bargaining with the king. In increasing num- 
 ber we find the boroughs and cities getting 
 local government in consideration of grants of 
 taxes. But the establishment of freedom-giv- 
 ing institutions in order that the king might 
 reach all taxable property, and the peaceful 
 method of purchase, were not the only modes of 
 advance. The time came when these could not 
 prevail with suflScient speed against a tyran- 
 nous king, and armed hostility became the ex- 
 pression of resistance to fiscal burdens and 
 the eflScient means of advancing the liberties 
 of the nation. 
 
THE STRUGGLE FOR MAGNA CARTA 101 
 
 The Great Council during the days of Henry 
 II grew in prominence; perhaps its power in- 
 creased slightly withal; but as a practical check 
 upon the king, it exerted little of the influence of 
 a truly legislative body. When it opposed itself 
 to the prerogative, it was rather as a loose body 
 of landholders who must be propitiated than 
 as a legislature with any initiative, or even as 
 an advisory council with any esprit de corps. 
 For all this, the Great Council contained the 
 germ of a legislative body, since formal con- 
 sent is not infinitely distant from timid demand, 
 which is in turn but a longish step removed 
 from initiative. The barons may not very early 
 have found it out, but their individual interests 
 in taxation were reaUy common. When they 
 reaUzed this fact more fully, they would be 
 readier to take the steps, but it must at first 
 be slowly, feeling the way like blind men. 
 Meanwhile the influence of the council would 
 be, not unimportant, but unorganized. 
 
 Henry II gave his Great Council many op- 
 portunities to share in legislation. Even though 
 the share were formal, this of itself would tend 
 to give the body standing. During the king's 
 presence in England, councils were frequent, 
 
102 THE STRUGGLE FOR MAGNA CARTA 
 
 and many an important enactment was pub- 
 lished in them. Very hopeful indeed were cer- 
 tain traces of a growing deliberation, indicating 
 that the opinions of the counselors were listened 
 to even if not acted upon by the king. Henry 
 talked over the condition of the realm with his 
 council in 1154; * he called together the bishops 
 in 1163 to discuss the criminous clerks, and the 
 talk was protracted pretty persistently into the 
 evening; ^ in 1184 he asked for and followed 
 the advice of the bishops in an ecclesiastical 
 matter; * similarly he assembled the Great 
 Council at London in 1176 and sought and 
 received their counsel.* But how little after 
 all was the real power of the council against 
 a king who insisted on his own way may be seen 
 from reference to the Great Council at Not- 
 tingham of 1194. The chronicler graces this 
 with the name of "colloquium," which surely 
 indicates deliberation, yet how supreme was 
 the king's will is shown by the acts of the four 
 days' session. Richard I deposed some sheriffs 
 and sold their oflSces; he demanded judgment 
 
 » Gervas, c. 1377, in Stubbs, Sd. Chart. (8th ed.) 128. 
 
 * Gervas, c. 1384, in Ibid. 129. 
 
 » Benedict, i, 311, in Stubbs, Sd. Chart. (8th ed.) 133. 
 
 * Benedict, i, 116, in Ibid. 130. 
 
THE STRUGGLE FOR MAGNA CARTA 103 
 
 against John, and the council summoned him 
 to answer; he determined (constituit) that 2s. 
 be given him from each carucate in England; 
 he took (^raecepit) a scutage; he exacted {exe- 
 git) the wool of the Cistercian monks ; he heard 
 charges of treason.* 
 
 On one occasion the council stepped out of 
 bounds. Longchamp, the justiciar of Richard I, 
 fell into disfavor with the bishops and barons 
 because of his exactions. A Great Council, 
 which could legally be summoned only by the 
 king or justiciar, was assembled by John, Long- 
 champ was deposed, and the Archbishop of 
 Rouen was elected justiciar. While even a coun- 
 cil properly summoned had no right to depose 
 or appoint a royal oflScer, the oflfense was the 
 less because the new justiciar presented to the 
 councU an appointment by Richard. This 
 incident must be viewed as entirely exceptional 
 and not as representing any permanent ad- 
 vance in the power of the Great Council. It is 
 valuable, however, as showing that the barons 
 had begun faintly to feel that they had a claim 
 to a larger share in government.^ 
 
 • Roger de Hoveden, iii, 240, in Stubbs, Sd. Chart. (8th ed.) 
 253. 
 
 2 Stubbs, ConM. Hist. § 149. 
 
104 THE STRUGGLE FOR MAGNA CARTA 
 
 Perhaps the most hopeful signs of the times 
 were the first instances of open resistance to 
 the king in council. At a council at Woodstock 
 in 1163 Henry II proposed to add to the royal 
 revenue the 2s. which every hide of land annually 
 paid to the sheriff for his administrative services. 
 Becket declared in the face of the king that it 
 would not be given as royal revenue, although 
 the sheriff should not lack for it. Henry an- 
 swered angrily, but the archbishop again in- 
 sisted that, as for the church, it should not be 
 done. No very important result issued from 
 this other than the quarrel between Henry and 
 Becket, but it is interesting as the first reported 
 case of opposition to the king's will in taxa- 
 tion.* 
 
 Again in 1198 we meet with a similar case 
 at the Great Council convened by the justiciar, 
 Archbishop Hubert. The occasion was a de- 
 mand for an unprecedented scutage for the 
 war in Normandy. The Bishops of Lincoln 
 and Salisbury flatly refused to pay the tax upon 
 their lands, and the justiciar was so over- 
 whelmed with resistance that he withdrew 
 
 » Stubbs, Sel. Chart. (8th ed.) 129; Stubbs, Const. Hist. 
 § 139. 
 
THE STRUGGLE FOR MAGNA CARTA 105 
 
 his demand and resigned his oflSce.* It is sig- 
 nificant that the first two instances of constitu- 
 tional opposition to royal will were connected 
 with land taxes and that the second, at least, 
 was entirely successful. 
 
 Hopeful as was this firm opposition to taxa- 
 tion, it was undoubtedly made because the 
 objectors were personally unwilling to pay, not 
 because as advisers they deemed the taxes un- 
 wise, much less because as legislators they were 
 caring for the interests of others whom they 
 represented. So too, although objection indi- 
 cates dehberation, we must not think that the 
 Great Council was yet able to arrive at a con- 
 clusion and declare it with any authority. The 
 authority was still the king's; the only thing 
 for the council to do was to agree with the royal 
 will or else block it by individual refusals of 
 the greater landowners to submit to a tax. In 
 judicial reforms, the demand of the landowners 
 not running contrary to the royal will, influence 
 by advice, as we have seen, was possible. In 
 matters of taxation, however, the minds of king 
 and baron could rarely be the same. It is some 
 
 * Roger de Hoveden, iv, 40, and Vita Magna S. Hugonis, 
 248, in Stubbs, Sd. Chart. (8th ed.) 255; Stubbs, CemM. Hist. 
 § 150. 
 
106 THE STRUGGLE FOR MAGNA CARTA 
 
 indication of how mucli the sovereign had his 
 own way that, in spite of the steadily increas- 
 ing fiscal burdens, there are on record only two 
 cases of opposition to taxation in the Great 
 Council. 
 
 It wiU be well for us to see how great was the 
 cause for the barons to take an interest in the 
 granting of taxes and to oppose the king when 
 they dared, for, as has already been more than 
 once said, it was in their fiscal grievances that 
 the landowners found their strength. Indirect 
 taxation, such as customs, had not yet become 
 important. The general taxation of the coun- 
 try was direct, and its early incidence, like that 
 of feudal imposts, was upon the land. Per- 
 sonal property was first made to contribute to 
 the support of the nation in 1181, when the 
 Assize of Arms required the possessor of chat- 
 tels or an income of certain values to have cor- 
 responding military equipments. Thus those 
 who did not owe knight service were enrolled 
 in the militia, and the old fyrd, or host of the 
 people in arms, was revived.* 
 
 The first real personal property tax was the 
 Saladin Tithe of 1188, a levy of one tenth of 
 the annual value of movables and rents for use 
 
 1 Stubbs, Sel. Chart. (8th ed.) 153. 
 
THE STRUGGLE FOR MAGNA CARTA 107 
 
 in the Crusade.* At several other times be- 
 fore Magna Carta similar taxes were gathered: a 
 fourth for Richard's ransom in 1193; ^ a forti- 
 eth for the Crusade in 1201 ; * a seventh from 
 the barons in 1203, exacted for not servitig John 
 in Normandy;* in 1207, a thirteenth from the 
 whole country. In the last instance, the king 
 had some diflSculty. At a first council at Lon- 
 don, he proposed to levy upon the clergy, but 
 met with opposition, and had to delay until a 
 later council at Oxford, where the same de- 
 mand received such resistance from the Arch- 
 bishops of Canterbury and York that the king 
 decided to distribute the burden of the tax 
 among all the holders of personal property, 
 lay and cleric' The Archbishop of York paid 
 for his Uttle denial of prerogative by being 
 obliged to leave the country. Here we have 
 another illustration of the fact that opposi- 
 tion to taxation in council was personal, for 
 the clergy lightened their burdens only by forc- 
 ing the king to shift a portion of them to other 
 
 » Stubbs, Sd. Chart. (8tli ed.) 159. 
 " Roger de Hoveden, iii, 210, in Ibid. 252. 
 ^ Stubbs, Cmst. Hist. § 151. 
 * Matthew Paris, 209, in Sd. Chart. 'iTii. 
 ^ Annals of Waverley, 258, and Matthew Paris, 221, in Ibid. 
 273. 
 
108 THE STRUGGLE FOR MAGNA CARTA 
 
 taxpayers, some of whom were not so well able 
 to resist it. That the necessity of consent to 
 taxation was not recognized is shown by the 
 fate of the archbishop. The personal property 
 taxes before Magna Carta were few and were 
 taken only upon special occasions, and cannot 
 be said to have been established as part of the 
 regular fiscal system. But the very fact of 
 their newness and irregularity early caused 
 opposition to them and added to the grievances 
 which were accumulating to force the people to 
 make stem demands upon the king. Meanwhile 
 the burden of land taxes of unprecedented 
 severity was working in an even greater meas- 
 ure to the same end. 
 
 The hated Danegeld was abolished in 1163, 
 only to be revived under the different name 
 of carucage, levied upon new units of land of 
 one hundred acres each, called carucates, in- 
 stead of upon the old hide.' This tax affected 
 all landowners, except those upon demense 
 lands of the crown and in the towns, where 
 tallage was collected upon the land, and pos- 
 sibly upon other property. The carucage, 
 originally two shillings upon a carucate, as in 
 
 ' Variously estimated at thirty and one hundred and twenty 
 acres. 
 
THE STRUGGLE FOR MAGNA CARTA 109 
 
 the case of Danegeld, was raised by Richard I in 
 1198 to five shillings and by John fixed at three.* 
 The primary feudal incident was military 
 service. At an early date in the Norman pe- 
 riod, it began to be established that the feudal 
 tenant of land of the annual value of perhaps 
 twenty pounds (which was called a knight's 
 fee) was to be hable to furnish a fully armed 
 horseman to serve at his own expense for forty 
 days in the year.^ Almost aU the tenants-in- 
 chief of the king held by this military service. 
 The great baron would be answerable for a 
 number of knights, varying with his estate, 
 but generally some multiple of five, and rarely 
 perhaps exceeding sixty.* The tenant-in-chief 
 who held by the service of fifty knights was 
 bound to appear in person with forty-nine other 
 knights. If he was disabled, he might send a 
 substitute for himself, as could also women 
 and ecclesiastics. The baron, whom we will 
 call A, might hire these other knights, or he 
 might have enfeoffed with his land forty-nine 
 sub-tenants, each of whom held by the service 
 of one knight and must follow in person. Pos- 
 
 * Stubbs, Const. Hist. § 161. 
 
 2 Ibid. §§ 96, 133. 
 
 3 1 PoU. & Mait. (2d ed.) 254-259. 
 
110 THE STRUGGLE FOR MAGNA CARTA 
 
 sibly he had enfeoffed a larger number, who 
 thus owed fractional service. 
 
 Take for illustration the simpler case where 
 B held a particular portion of land of A by the 
 service of one knight. The duty of miUtary 
 service B owed to the mesne lord A, and to 
 him alone; he had no tenurial duty to the king. 
 To be sure the king required his oath of fealty, 
 but that was personal, not tenurial. Yet the 
 king had a practical hold upon B because every 
 part of -4's land, including B's tenement, was 
 liable for ^'s service to the king. Hence if A 
 did not furnish his fifty knights the king could 
 distrain B's tenement for the whole fifty. In 
 that event, however, A must acquit B for the 
 surplus service. The primary duty to the king 
 was A's; B was bound by tenure only to A. 
 But B was liable to serve A only in the king's 
 army, and need not follow in the baron's pri- 
 vate quarrel, which shows how the English 
 system had departed from pure feudaUsm. 
 Yet the fact remained that A was the one to 
 whom the king must look for the military sup- 
 port of fifty knights, whom A, not the king, 
 summoned, and who went to battle under ^'s 
 banner.' 
 
 ' 1 PoU. & Mait. (2d ed.) 260-264. 
 
THE STRUGGLE FOR MAGNA CARTA 111 
 
 Under such a system, the position of the baron 
 was one of importance. His tenants might in- 
 deed, in the last analysis, bear the burden of 
 military service, but it was to him that the king 
 must look for the collection and organization 
 of a considerable band of fighters. Because of 
 the value of his support, he was of all subjects 
 the best qualified to resist excessive demands 
 of the king. But the smaller the holding of the 
 baron, the less his importance to the king and 
 the less potentiality of resistance to royal will. 
 Possibly this accounts for the fact that the 
 smaller tenants-in-chief, although bound to 
 the king by the same personal and tenurial re- 
 lations as were the greater, were not called upon 
 by the king to give a formal consent to his acts 
 in the Great Council. 
 
 The difficulties of getting together so ill- 
 organized a force proved a bar to its efficiency 
 and turned military service into a system of 
 land taxation. Even before the'time of Henry II, 
 sub-infeudation had brought about a condition 
 where tenants of the mesne lord held fractional 
 parts of knight's fees. This meant that in some 
 cases, for example, three tenants must furnish 
 two knights or many tenants must furnish one. 
 
112 THE STRUGGLE FOR MAGNA CARTA 
 
 These tenants would naturally come in time 
 to discharge their liability by a cash payment 
 to the lord. The king also found it more con- 
 venient to depend upon a mercenary army than 
 upon the rather unknown quantity of a body 
 of knights answerable for only a brief service, 
 hence we find Henry II in 1159 commuting 
 the personal attendance of the tenants-in-chief 
 and their followers for a money consideration, 
 or scutage, of two marks for each knight. » 
 
 Yet tenants-in-chief did not seemingly have 
 the right to choose between actual service and 
 the payment of a fixed scutage. Theoretically 
 they must serve, and if they failed to do so must 
 pay the king a fine as the purchase of pardon, 
 and this fine might be arbitrarily fixed after the 
 fact at a higher rate than the established scutage. 
 As a royal favor the baron might at times get 
 a writ de scutagio habendo, ordering the sheriff 
 to collect the scutage from the tenants for the 
 king's use, or perhaps now and then a similar 
 writ would allow the baron to collect from his 
 tenants the fine he had paid. The sub-tenants 
 seem to have been the only ones aside from the 
 king to get any immediate benefit from the in- 
 troduction of scutage, for they apparently were 
 
 » 1 PoU. & Mait. (2d ed.) 267. 
 
THE STRUGGLE FOR MAGNA CARTA 113 
 
 very early able to claim the right to pay the es- 
 tablished rate of scutage instead of serving. The 
 presence of so many fractional fees among them 
 was a chief cause of this. If they had in the old 
 days refused service, the lord could have de- 
 clared their tenements forfeited, but with the 
 decHne of the feudal courts this passed, and the 
 king's court afforded the lord no such remedy. 
 Thus the claim of the sub-tenant to the right 
 to pay instead of serving was protected, and 
 his mihtary duty became a liabiUty merely to pay 
 the fixed tax represented by scutage. This tax 
 was anti-feudal; it was royal and national. The 
 sheriff usually collected it for the immediate use 
 of the crown. Indeed the grants of scutage by 
 the barons in the time of Henry III were often 
 merely permissions to collect from the under- 
 tenants dues which upon feudal principles be- 
 longed to the lords.' But we have been antici- 
 pating a bit and speaking of developments which 
 reaUy belong to the thirteenth century. What 
 at present interests us is that from 1159 on we 
 frequently find a land-charge called scutage 
 and in John's reign see centering about it and 
 the related duty of service a struggle for Uberty. 
 In its earlier history scutage was the charge 
 » 1 PoU. & Mait. (2d ed.) 267-274. 
 
114 THE STRUGGLE FOR MAGNA CARTA 
 
 collected directly from the tenants-in-chief in 
 lieu of military service. Although its incidence 
 might ultimately be upon the under-tenants, 
 it fell in the first instance upon the tenants-in- 
 chief, and of these the greater barons, as the 
 larger taxpayers, held somewhat the same posi- 
 tion of importance as they had held when fur- 
 nishing the largest fighting forces. About them 
 as leaders would naturally center any disaffec- 
 tion which abuse of the new land tax might 
 arouse. 
 
 Inasmuch as scutage was a substitute for 
 mihtary service due and not given, it was in 
 origin a feudal impost which the king could 
 claim without even the formal grant of the Great 
 Council, which was in theory necessary in case 
 of an extraordinary tax. Thus that of 1159 was 
 simply "taken." * In 1198, however, Richard I 
 wished for a variation of the usual levy, and 
 demanded either three hundred knights for a 
 year's service or their equivalent in money. The 
 request being extraordinary, since not based 
 
 ^ " Sumptis Ix. solidis," Rob. de Monte, in Stubbs, Sd. 
 Chart. (8th ed.) 129. Cf. Dial de Scac. Kb. i, ix. "It happens 
 sometinies that, when the machinations of enemies threaten or 
 attack the kingdom, the king decrees that, from the different 
 knight's fees, a certain sum shall be paid, to wit, a mark or a 
 pound." 
 
THE STRUGGLE FOR MAGNA CARTA 115 
 
 upon the usual feudal due of service for forty 
 days, the Archbishop of Canterbury evidently 
 thought it best to obtain the formal consent 
 of the Great Council. Therefore he called that 
 body together at Oxford, and presented the case, 
 doubtless with the expectation that it would 
 meet with the usual subservient approval of the 
 barons. How much reason he had for the ex- 
 pectation is shown by the story of the chroni- 
 cler, for " while all the rest were disposed to do 
 this, not daring to resist the will of the king, 
 Bishop Hugh of Lincoln alone, a true respecter 
 of God, refraining from every base work, an- 
 swered for himself that he would not yield a jot 
 to this wiU of the king, both because in the pro- 
 cess of time it would redound to the detriment 
 of his church, and because his successors would 
 say, ' Our fathers have eaten a sour grape and 
 the children's teeth are set on edge. ' " ' The 
 bishop declared that the lands of his church 
 of Lincoln were liable for military service in 
 England alone; without its bounds her knights 
 would not go. Upon this the Bishop of Salisbury 
 gained the courage to side with the Bishop of 
 Lincoln, and the council was dismissed by the 
 
 * Roger de Hoveden, iv, 40, in Stubbs, Sd. Chart. (8th ed.) 
 255. 
 
116 THE STRUGGLE FOR MAGNA CARTA 
 
 incensed justiciar.* This second instance of 
 opposition to taxation in council is here related 
 a second time because of its relation to the con- 
 troversy about scutage and military service, 
 which from now on kept recurring and finally 
 culminated in Magna Carta. 
 
 The barons had suffered the oppressions of 
 Richard in almost unbroken silence, but were not 
 inclined to allow their patience much longer 
 to be taxed. Of John's turbulent nature they 
 had indications enough during Richard's life, so 
 in the interregnum after the latter's death there 
 was considerable uneasiness. The situation was 
 more like that attendant upon the accessions of 
 the Norman kings than upon those of Henry II 
 and Richard. John did not come to the throne 
 with nothing to ask of the people; he was dis- 
 trusted, and must secure support. Archbishop 
 Hubert allayed the fears of the barons by pro- 
 mises on behalf of John of redress of every 
 grievance, promises which were emphasized at 
 the time of the coronation.^ 
 
 John immediately entered upon his course of 
 broken faith by levying in the very first year 
 of his reign a scutage of three marks on account 
 
 ' Vita Magna S. Hugonis, 248, in Stubbs, Sel. Chart. (8th ed.) 
 255. ^ Stubbs, Const. Hist. § 151. 
 
THE STRUGGLE FOR MAGNA CARTA 117 
 
 of the war in Normandy and a carucage of three 
 s hilli ngs, both in excess of the usual rate.' It 
 is little wonder that when the king in 1201 
 ordered the barons to meet him at Portsmouth 
 prepared to cross to France, they took private 
 counsel together and demanded the reforms 
 which he had promised as a condition of serv- 
 ice. The remonstrance only added to their 
 grievances, however, for the angered king seized 
 their castles.^' To make matters worse, when 
 the barons did finally assemble according to 
 command, John gave up the expedition, and, 
 taking from some of them the money which they 
 had brought for support in his service, sent them 
 back home.^ Then in two years came the ex- 
 action of a seventh of the movables of the barons 
 for pretended breach of duty to serve and de- 
 sertion from the king, who, having got them into 
 Normandy, had shown an unwillingness to 
 fight, which sent them homedisgusted.* In 1204, 
 however, the barons were still sufficiently afraid 
 of the king to grant him a scutage of two marks 
 
 1 R. Coggeshale, in Stubbs, Sel Chart. (8th ed.) 272. 
 ^ Roger de Hoveden, iv, 160, 161, in Stubbs, Sel. Chart. (8tli 
 ed.) 272. 
 
 * Roger de Hoveden, iv, 163, in Ibid. 
 
 * Matthew Paris, 209, in Ibid. 
 
118 THE STRUGGLE FOR MAGNA CARTA 
 
 and a half.* The next year they did attempt 
 a stand for their rights. At a Great Council 
 at Oxford they approved of a reorganization of 
 the army by which every nine knights were to 
 join to equip a tenth with wages of two shiUings 
 a day for the country's defense. Oaths of fealty 
 were required of the whole nation. In return 
 John was himself obliged to swear to observe 
 the rights of the kingdom.^ If thebarons thought 
 they had won a victory, they were grievously 
 deceived, for John immediately assembled an 
 army at Portsmouth under pretense of crossing 
 the Channel, embarked and made motion to 
 sail, then played his old trick of abandoning 
 the enterprise because of the unwillingness of 
 the barons to follow him, and took their money 
 from them.^ 
 
 The patience of the barons was, however, 
 capable of further trial before their spirits would 
 rise to the point of revolt, and it was not until 
 the events of the year 1213 that the weight of 
 military service and taxation upon the landed 
 men finally induced them to act. John proposed 
 an expedition to France. The barons demurred 
 
 * Matt. Paris, 209, in Stubbs, Sel. ChaH. (8th ed.) 272. 
 
 ^ Stubbs, Const. Hist. § 154. 
 
 = Matt. Paris, 212, in Stubbs, Sel. ChaH. (8th ed.) 273. 
 
THE STRUGGLE FOR MAGNA CARTA 119 
 
 on the ground that he was still excommunicate. 
 After the absolution of the king which soon fol- 
 lowed, this plea lost its force, and when the king 
 renewed his proposal, other excuses had to be 
 advanced. The northern barons, following the 
 example of Hugh of Lincoln in 1198, asserted 
 that they were not bound by their tenure to 
 foreign service. This was too much for John's 
 temper, and he gathered his immediate forces 
 and started northward; but his ardor cooled with 
 usual rapidity, and the march was suddenly 
 reversed. 
 
 On August 4, 1213, came the assembly called 
 by the justiciar, Geoffrey Fitz-Peter, to meet at 
 S. Alban's to inquire concerning the value of the 
 lands for which the church demanded restitu- 
 tion of the king. This assembly was attended 
 not only by the bishops and barons, but by re- 
 presentatives of the township. Thus for the first 
 time in an English national meeting the small 
 landowners found a place. The council de- 
 parted somewhat from the business for which 
 it was summoned. The justiciar laid before it 
 the promise of good government which the king 
 had just made on his absolution and which was 
 already broken. He also issued an edict for- 
 bidding illegal exactions and referred to the laws 
 
120 THE STRUGGLE FOR MAGNA CARTA 
 
 of Henry I as the basis for reforms. At another 
 council at S. Paul's, on the 25th of August, at- 
 tended only by clerics and barons, the charter 
 of Henry I was produced and made the basis 
 of claims which the justiciar laid before the king, 
 but the immediate death of Geoffrey and the 
 king's absence abroad during most of the year 
 1214 postponed for a time a settlement of the 
 differences. 
 
 Upon his return in October, 1214, John 
 thought immediately to have an accounting 
 with the northern barons, but they were too 
 prompt for him. They took solemn oath with 
 each other to withdraw their allegiance if the 
 king did not give them immediate security for 
 their liberties by a charter under his seal, and 
 to enforce their demands agreed to raise an 
 armed force. John attempted to make a divi- 
 sion of his opponents by promising to the clergy 
 freedom of election, the denial of which had led 
 to his quarrel with the church, the interdict of 
 the realm, and his excommunication. But the 
 bishops had made common cause with the lay 
 barons and were not to be diverted. In Janu- 
 ary, 1215, John heard the demands of the barons, 
 and, playing for time, secured a truce until after 
 Easter. Meanwhile he again issued a charter 
 
THE STRUGGLE FOR MAGNA CARTA 121 
 
 of freedom to the church, directed an oath of 
 fealty to be taken throughout England, and de- 
 manded renewed homage from the tenants-in- 
 chief . He even took the vow of Crusade in order 
 to make an attack upon him sacrilege. But his 
 efforts were in vain. The barons assembled 
 their army at Stamford, and as soon as the truce 
 was ended marched to Brackley. John, fifteen 
 miles away at Oxford, was duly alarmed. He 
 sent a deputation to ask their conditions, which 
 were dispatched to the king with the threat that, 
 if they were not granted, open war would follow. 
 John angrily refused peace upon such terms, 
 although at about this time he did offer the 
 barons a promise that neither he nor his men 
 would go upon them or their men but by the 
 judgment of their peers or the law of the land.* 
 The barons had a larger principle at stake, 
 however, and happily declined to be pacified, 
 for only a few weeks later they wrung from the 
 king the same promise as to all freemen,^ be- 
 sides many other concessions. The baronial 
 army no longer delayed. Marching to London, 
 they completed their successful show of force by 
 winning to their side the remnants of the king's 
 
 ' Blackstone, Introduction to the Charters, xiii, note x. 
 « Mag. CaH. c. 39. 
 
122 THE STRUGGLE FOR MAGNA CARTA 
 
 supporters. John yielded perforce and executed 
 the Great Charter of Hberties on June 15, at 
 Runnymede.* 
 
 Magna Carta was therefore in its inception 
 a protest of the landed man against the impo- 
 sition of burdens upon his land. Even had we 
 not the detailed account of the events which led 
 to the charter, the document itself bears con- 
 vincing internal evidence of the part which the 
 owners of land played in securing it. No less 
 than sixteen ^ of the sixty-three clauses relate 
 directly to the limiting of feudal obligations. 
 Three * refer to amercements with which John 
 had oppressed his people, and save to the amerced 
 certain rights in land. Seven ^ put a check upon 
 the king and his officers in the execution upon 
 the land of purveyance, tax debts to the crown, 
 bridge taxes, and ferms. Two ^ regulate the 
 payment of debts to the Jews and other credit- 
 ors from the real estate of deceased men, sav- 
 ing the rights of the lord in the tenement, the 
 dower of the widow, and the support of the chil- 
 
 * Stubbs, Const. Hist. § 154; Blackstone, Int. to Chart, ix, 
 et seq. 
 
 ^ Clauses 2-8, 12, 15, 16, 29, 32, 37, 43, 46, 53. 
 
 » Clauses 20-22. ^ Clauses 9, 23, 25, 26, 28, 30, 31. 
 
 ^ Clauses 10, 11. 
 
THE STRUGGLE FOR MAGNA CARTA 123 
 
 dren. Three * protect landowners from dis- 
 seisin by the king without the verdict of their 
 peers. Most important of all, two clauses ^ 
 secure the right of the tenants-in-chief to con- 
 sent to taxation. No scutage or aid was to be 
 imposed in the kingdom unless per commune 
 concilium regni, except in case of the three pri- 
 mary feudal aids for ransom of the king's per- 
 son, making his eldest son knight, and once 
 marrying his eldest daughter; and even these 
 were to be reasonable. The common counsel 
 was to be given, in the cases not excepted, by 
 an assembly to be called by the king; the arch- 
 bishops, earls, and greater barons to be sum- 
 moned by writs directed to each severally, all 
 other tenants-in-chief by general writs addressed 
 to the sheriff of each county; the writs to fix a 
 place for meeting and a time not less than forty 
 days distant, the purpose of the council to be 
 set forth; the consent of those present to bind 
 those who did not attend. Here the "common 
 consent of the realm" was effectively recog- 
 nized; henceforth the principle, although not 
 yet perfect and often temporarily ignored, was 
 thoroughly rooted in the constitution. 
 
 1 Clauses 52, 56, 57. ^ ckuses 12, 14. 
 
124 THE STRUGGLE FOR MAGNA CARTA 
 
 Of the many clauses relating to the adminis- 
 tration of justice, a few deserve our special con- 
 sideration, both for their intrinsic importance as 
 safeguards of liberty and for the relation which 
 the landed man bore to them. The influence 
 of the landed man in the divorcement of jus- 
 tice from the person of the king has already 
 been touched upon. In Magna Carta we see it 
 illustrated in the separation of the Court of 
 Common Pleas from the king's immediate court 
 and its establishment in one certain place.* The 
 barons also saw to it that the assizes of novel 
 disseisin, mort d'ancestor, and darrein present- 
 ment should be taken in the counties where 
 the cases arose. Two justices were to go into 
 each county four times a year and, with four 
 knights chosen by the county, hold these as- 
 sizes in connection with the county court.' 
 
 Justices, constables, sheriffs, and bailiffs the 
 king was to choose only from such as knew the 
 laws of the land and had a will to observe them.' 
 Here was the entering wedge of popular con- 
 trol of judicial oflScers. It would be long be- 
 fore it would become eflficient, but already the 
 barons recognized that their liberties depended 
 much upon learned and conscientious judges. 
 
 * Mag. Cart. c. 17. ^ Ibid. cc. 18, 19. « Ibid. c. 45. 
 
THE STRUGGLE FOR MAGNA CARTA 126 
 
 No thought had yet appeared of taking from 
 the king any of his right to create or abolish 
 courts and to appoint or remove justices, but 
 it was required of him by the barons that he 
 use good faith in appointment. Further to se- 
 cure just judgment, sheriffs, constables, and 
 coroners were not to hold Pleas of the Crown; * 
 those cases were reserved for justices better 
 qualified than they. 
 
 The answerability of the king to the people 
 in the exercise of his judicial prerogative found 
 stirring phraseology in two of the capital clauses 
 of Magna Carta. "To none will we sell, to 
 none will we deny or delay right or justice." ^ 
 Justice must be free and prompt. It had not 
 been so at all times in the past; it would not 
 be so at many times in the future; but here was 
 a cardinal right enunciated by the barons in 
 behalf of themselves and of all the people, and 
 admitted with the utmost clearness and for- 
 mality by the king. It was not the statement of 
 a new right indeed, but a covenant regarding 
 an old one to which every man could point and 
 say, "Here is my guaranty of justice." Then 
 there was that other assurance of the preced- 
 ing clause: "No freeman shall be taken or 
 
 1 Mag. Cart. c. 24. '^ Ibid. c. 40. 
 
126 THE STRUGGLE FOR MAGNA CARTA 
 
 imprisoned or disseised or outlawed or exiled 
 or in any manner destroyed, nor will we go 
 upon him, nor will we send upon him, except 
 by the lawful judgment of his peers or the law of 
 the land." * We have already noticed John's 
 tyrannical act in seizing the castles of the barons 
 who declined, unless he kept his promises of 
 reform, to accompany him to France in 1201.^ 
 Again in 1212 those suspected of defection were 
 arrested and lost their castles.' These events 
 may furnish a key to the demand of the barons 
 for such a clause as the thirty-ninth. 
 
 "The words, 'We will not destroy him, nor 
 will we go upon him, nor will we send upon 
 him,' have been very differently expounded 
 by different legal authorities. Their real mean- 
 ing may be learned from John himself, who 
 the next year promised by his letters patent 
 . . , nee super eos 'per vim vel per arma ibimus, 
 nisi per legem regni nostri, vel per judicium 
 parium suorum in curia nostra. He had hitherto 
 been in the habit of going with an armed force, 
 or sending an armed force upon the lands, and 
 against the castles, of all whom he knew or sus- 
 
 ' Mag. Cart. c. 39. 
 
 ^ Roger de Hoveden, iv, 161, in Stubbs, Sel. Chart. (8th ed.) 
 272. s Stubbs, Const. Hist. § 153. 
 
THE STRUGGLE FOR MAGNA CARTA 127 
 
 pected to be his secret enemies, without observ- 
 ing any form of law. Thus in 1276 the peers, 
 in conformity with this article of the charter, 
 adjudged that the king should go upon Llew- 
 ellyn, prince of Wales, quod eat super ipsum 
 tanquam super rebeUem suum et pads suae 
 perturbatorem." * Such being the state of 
 affairs, it is little wonder that Magna Carta 
 contains a clause restraining the king to a legal 
 exercise of his prerogative, — a clause which, 
 though often broken, has stood ever since as a 
 bulwark of Enghsh liberty. The breaches have 
 but brought reiteration of the principle, and 
 reiteration has brought observance. 
 
 The provisions for the enforcement of the 
 charter are interesting as showing how far the ex- 
 igencies of tyranny had led the barons to claim 
 self-government. To them was given the right 
 to elect twenty-five of their number to " observe, 
 keep and cause to be observed, the peace and 
 liberties" which the charter had granted to 
 them. If the king or any of his officers should 
 injure any one in anything or violate any arti- 
 cle of the charter, and complaint were made 
 to four of the twenty-five, those four were to 
 make petition of redress to the king or, if he 
 
 ' 2 Lingard, History of England (6\h ed.) 177, note 3. 
 
128 THE STRUGGLE FOR MAGNA CARTA 
 
 were out of the kingdom, to his justiciar. If 
 then no redress was had within forty days, the 
 four barons were to lay the matter before the 
 rest of the twenty-five, who then might distress 
 and harass the king in any way they were able, 
 even to the taking of castles, lands, and pos- 
 sessions, sparing only the persons of the royal 
 family. Every man who took oath before the 
 barons was to be absolutely privileged from in- 
 terference from the crown because of the oath,' 
 Never before had such powers of initiative in 
 national affairs been allowed to subjects; never 
 before had the king submitted to anything 
 savoring so much of self-government. 
 
 While it Was the barons, who, smarting under 
 tyrannical impositions upon their land, struck 
 those decisive blows which forced from the 
 king this remarkable declaration of rights and 
 liberties, they were the leaders of an aroused 
 nation, now feeling its solidarity and strength. 
 As the largest sufferers and the nearest to the 
 king, it was the barons, lay and cleric, who 
 were best fitted to direct the struggle and lead 
 to victory. But they found support in all ranks, 
 for every landowner felt the cruel impress of 
 taxation, and even the villeins suffered in con- 
 
 ' Mag. Cart. c. 61. 
 
THE STRUGGLE FOR MAGNA CARTA 129 
 
 sequence. Perhaps the barons would not have 
 won their point without this support. At any 
 rate the more lowly men who had joined the 
 common cause were not forgotten; the benefits 
 of the charter were for all classes and condi- 
 tions, and what the king agreed to do for the 
 barons, the barons promised to do for their 
 tenants, thus becoming enforcers of the liber- 
 ties of the whole nation.* 
 
 While comparatively few of the provisions 
 of Magna Carta stated novel rights and thus 
 in this connection little may be claimed for the 
 landed man in the way of originating liberties, 
 it is of great significance that he even won from 
 the king an admission of ancient principles. 
 Those principles had been much in abeyance 
 under a reign of tyranny, and were in serious 
 danger of being lost sight of. Their statement 
 by the king was salutary. While he might 
 immediately proceed again to ignore them, he 
 had left an indelible record for future reference. 
 Theoretically there must henceforth be a reign 
 of law. When the king overrode right, as often 
 he did, here was a declaration of law incapable 
 of denial, though not of evasion. Other char- 
 ters had been forgotten; this one, purchased 
 
 * Mag. CaH. c. 60. 
 
130 THE STRUGGLE FOR MAGNA CARTA 
 
 by a nation of united purpose at the cost of a 
 memorable struggle, was never forgotten. When 
 infringed by kings tenacious of prerogative, the 
 people, cowed perhaps for a time into silence, 
 would demand its renewal; and the kings, unable 
 to dispute the published law, must again and 
 again assent to its declaration of right. Thus 
 Magna Carta has stood through the passing cen- 
 turies as the bulwark of liberties whose reitera- 
 tion has turned what was once precarious into 
 what is now unshaken. 
 
VI 
 
 THE BEGINNINGS OP PARLIAMENT 
 
 The immediate gains to civil liberty from Magna 
 Carta were principles rather than facts. Full 
 as were the concessions to the power of the 
 council to consent in taxation, there was not 
 for some time anything like a parliament. In- 
 deed the baronial party soon found that, as far 
 as present reform was concerned, nothing was 
 gained. Probably John signed the charter with 
 the intention well formulated in his own mind 
 to repudiate it as soon as he was no longer com- 
 pelled to take the barons into consideration. 
 However that might be, he continued to keep 
 his followers in arms and to strengthen his 
 forces. On the other side similar precautions 
 were taken, and Magna Carta became an armed 
 truce rather than a treaty of peace. Meanwhile 
 the most powerful of the earls returned to the 
 king. These defections from the cause of the 
 barons grew out of several sources. In the first 
 place jealousies arose which quickly divided 
 the men whose grievances had so recently 
 
132 THE BEGINNINGS OF PARLIAMENT 
 
 served as a bond. Then some of them, slow 
 to learn the perfidy of John, credited him with 
 good intentions in executing the charter and 
 went to his support as against those whose dis- 
 trust kept them in open readiness for hostility 
 to the king. Furthermore, in August, 1215, 
 Pope Innocent III annulled the charter* and 
 forbade John to keep his oath. As a result, the 
 clergy, who really were on the popular side, had 
 to be very careful of showing any opposition 
 to the king. 
 
 The worst fears of the barons as to John's 
 good faith were fully justified at a time when 
 their strength was thus on the ebb. The twenty- 
 five executors became desperate and called 
 for foreign aid, offering the crown to Louis of 
 France. War was again precipitated, John 
 reduced the North, and the rebellious barons 
 were excommunicated. In the midst of the 
 consequent discouragement of the baronial 
 party, Louis arrived with a large force and turned 
 the tide of victory. Many of the earls deserted 
 the king, but a few remained faithful, notably 
 the Earl of Pembroke. During the summer of 
 1216 the struggle continued, but England found 
 reUef in the deaths, in August of Pope Inno- 
 cent, and in October of the tyrant John.' 
 
 * Stubbs, Const. Hist. § 169. 
 
THE BEGINNINGS OF PAELIAMENT 133 
 
 The country was doubly fortunate in the 
 death of the king, for, besides being rid of 
 John, it got as heir to the throne a nine-year- 
 old boy. The minority of Henry III gave an 
 opportunity for the barons, or at least some 
 of them, to handle the reins of government. 
 Thus the baronial party became rehabihtated 
 and used to the exercise of power, while the peo- 
 ple became accustomed to seeing somebody be- 
 side the king in authority and to look for sources 
 of power elsewhere than in the crown. Then 
 first began to arise the principle that the king 
 (because he can do nothing) can do no wrong, 
 and that the ministers who act for him are liable 
 to the people.* 
 
 A powerful basis for the reunion of discord- 
 ant elements was found in Magna Carta. With 
 John and Innocent no longer obstructing, all 
 were willing that the charter should be ob- 
 served. The first act of the royal party, after 
 crowning Henry III and appointing the Earl 
 of Pembroke regent, was to repubhsh Magna 
 Carta with the consent of the papal legate, 
 Gualo. The barons of the royal party and the 
 new pope thus became the supporters of lib- 
 erty. Many of the old baronial party there- 
 
 * 2 Anspn, Law and Custom of the ConstUtUion, 15. 
 
134 THE BEGINNINGS OF PARLIAMENT 
 
 upon changed front, but the obstinate and those 
 who felt in honor bound to Louis, although 
 standing for nearly the same principles as the 
 royalists, did not see their way clear to sup- 
 port Henry. The baron executors, being given 
 no power by the new issues of the charter, also 
 opposed the young king. In danger of excom- 
 munication for opposition to the pope, Louis 
 was called home by his father for a council. His 
 absence was the signal for defections, and he 
 returned to England to find a forlorn hope, 
 which in September, 1217, became failure and 
 surrender. The treaty then made was honor- 
 able to all. Nobody was to lose for the stand 
 he had taken; all were pacified; everybody 
 united in support of the young king; Magna 
 Carta was again reissued.' 
 
 With the aflfairs of the nation under the di- 
 rection of a regent elected by the Great Council, 
 the conditions were apparently most favorable 
 for the tenants-in-chief to exercise that power 
 in taxation which Magna Carta had promised 
 them. It is somewhat surprising therefore that 
 in the repubUcations of 1216 and 1217 the con- 
 stitutional clauses ^ of the Great Charter find 
 no place. The reason for the omission has al- 
 
 » Stubbs, Const. Hid. § 170. ^ ^g^ q^^ ^^ jg^ 14 
 
THE BEGINNINGS OF PARLIAMENT 135 
 
 ways been a subject of question, but no sat- 
 isfactory solution has ever been given. Pro- 
 fessor Gneist has ventured the suggestion that 
 the greater barons, who under Pembroke were 
 in power, were jealous of sharing their au- 
 thority with the lesser.* Whatever the cause, 
 the omission was not a grave one, for in prac- 
 tice the Great Council of specially summoned 
 greater barons consented to taxation,^ and 
 finally the smaller tenants-in-chief by their 
 representatives came to exercise similar privi- 
 leges. The forty-fourth clause of the charter 
 of 1217 provided that scutage should be taken 
 as in the time of Henry II. The force of this 
 provision is not clear, but as a scutage taken 
 at nearly the same time was assessed by the 
 commune coycilium it can hardly be taken 
 to mean that the tax could be laid without 
 consent. In all matters of taxation, Pembroke 
 seems to have consulted the Great Council.^ 
 
 So also the principle of consent to taxation 
 was consistently observed after the death of 
 Pembroke in 1219. But in 1225 there came 
 an event which, while in fact an exercise of 
 the right to consent, was in form a precedent 
 
 * Gneist, The English Parliameni (Shee translation) 88, 89. 
 => Ibid. 97. ' Stubbs, Const. Hist. § 170. 
 
136 THE BEGINNINGS OF PARLIAMENT 
 
 for prerogative. The justiciar, Hubert de 
 Burgh, demanded a fifteenth of all movables, 
 which was granted on condition of a recon- 
 firmation of the charters. The enacting clause 
 did not, however, speak of the counsel of the 
 barons, as in previous cases; on the contrary 
 it referred to the confirmation as of the king's 
 good will, while the magnates appeared only 
 as witnesses. The theory of consent, however, 
 continued to gain strength. In 1232 the pre- 
 lates at a colloquium at Westminster objected 
 to the grant of an aid for the French war on 
 the ground that many of the bishops and ab- 
 bots who had been summoned were not pre- 
 sent, and sought adjournment until all could 
 meet.* Such a claim exceeded even the right 
 granted by Magna Carta, which specifically 
 said that a baron summoned and not attending 
 would be taken to assent to the action of those 
 present. The following year the necessity of 
 consent was illustrated by the embarrassment 
 under which the barons put the king by refusing 
 to obey a summons to council unless Henry 
 would dismiss his foreign favorites. Such a 
 refusal would hardly have been made and 
 civil war would hardly have followed had not 
 
 » Matt. Paris, 372, in Stubbs, Sd. Chart. (8th ed.) 325. 
 
THE BEGINNINGS OF PARLIAMENT 137 
 
 the consent of the Great Council been more 
 than an empty formahty.* In spite of the omis- 
 sion of the 12th and 14th clauses of Magna 
 Carta from the charters of 1216, 1217, and 
 1225, in spite of the 44th clause of that of 1217, 
 common consent survived. The king's way 
 of announcing the scutage of 1235 was that 
 "the counts and barons and all others of our 
 whole kingdom of England, of their own will 
 and not as a customary exaction, have granted 
 us an aid." ^ 
 
 Doubtless dehberation and debate had be- 
 fore this begun to mark the granting of taxes, 
 for conditions were at times attached to con- 
 cessions by the barons. The year 1242, how- 
 ever, furnishes us with the first detailed ac- 
 count of a debate in regard to taxation. Henry 
 called the bishops and barons to London 
 and requested an aid for the recovery of his 
 foreign possessions. They replied that it would 
 be wise to await the end of the truce then 
 existing before going to war, representing that 
 repeated and ample grants had been made 
 during the last fifteen years, that besides these 
 the king had plentiful resources; neverthe- 
 
 * Stubbs, Const. Hist. § 173. 
 
 => Stubbs, Sel. Chart. (8th ed.) 364. 
 
138 THE BEGINNINGS OF PARLIAMENT 
 
 less at the expiration of the truce they would 
 do what they could. Henry asked how much 
 they would grant if he waited, and hinted at 
 reforms if they would be liberal. The council 
 was not to be duped. Recalling that the grant 
 of 1237 had been made upon condition that 
 the money be put into the custody of certain 
 magnates and spent under their direction, a 
 condition which had not been fulfilled, the 
 barons found reason to question the king's 
 good faith, and refused to make any definite 
 assurances. Henry did not, however, stop for 
 constitutional obstructions; by treating with 
 the prelates and barons singly, he succeeded 
 by force, fraud, or persuasion in obtaining a 
 large sum of money.* Thus the liberative 
 tendencies were becoming more prominent, al- 
 though the tyrannical forces were slow to yield. 
 
 It is of the utmost importance for our pur- 
 pose to notice that all these battles in the strug- 
 gle for political power were waged about tax- 
 ation, for where fiscal matters were involved 
 the landed man was primarily interested. It 
 must be admitted that much of the hostility 
 to Henry was due to his favoritism to foreign- 
 ers, upon whom he lavished money and po- 
 
 1 Stubbs, Const. Hid. § 175; Sel. Chart. (8th ed.) 368-370. 
 
THE BEGINNINGS OF PAELIAMENT 139 
 
 sition, but this hostility found opportunity 
 for expression most readily in the times when 
 the king asked for money. It was on such oc- 
 casions that the barons were able to make 
 demands and impose conditions which, though 
 often disregarded, went far to strengthen the 
 edifice of liberty. Formality of consent was 
 gone; the council had attained the power of 
 flat refusal.* 
 
 But the assemblies which were thus estab- 
 lishing, little by Uttle, the practice of consent 
 to taxation, were still far from being parlia- 
 ments as we understand them. They were 
 indeed often called by that name, but were in 
 fact bodies of no fixed constitution. In them 
 only the bishops and barons as a rule found 
 seats; they were meetings of the larger land- 
 owners, specially summoned, and were in fact 
 Great Councils. Important as were the prin- 
 ciples which they were fixing, the legislative 
 power of the subject could be fully vindicated 
 only by a real parhament, with representatives 
 of the smaller landowners of the shires and 
 townships. To the old Germanic institutions 
 the national legislature had to look for its vigor. 
 
 ' Such refusal was repeatedly given. Stubbs, Const. Hist. 
 § 175. 
 
140 THE BEGINNINGS OF PARLIAMENT 
 
 We have seen how the germ of popular gov- 
 ernment survived the migration and the rise 
 of kings, survived even centraHzation and feu- 
 dahzation and tyranny, to flourish quietly but 
 strongly in the shire and hundred and town- 
 ship. We have seen how, through the fiscal 
 relations of the local courts to royal justice, 
 trial by jury came about. More remarkable 
 still was the way in which fiscal affairs brought 
 those same Germanic institutions of shire 
 and town into contact with national taxation 
 and finally made the popular elements the 
 essence of the national legislature; for "the 
 lawmaker, the holder of the legislative power, 
 is the real sovereign of the country." * In a 
 matter of such significance, we may then be 
 pardoned if we go back for a century and a 
 half to weave together some of the threads of 
 the fabric. 
 
 In the first place we must bear in mind that 
 the shire court was a representative body, 
 containing — besides the earls, bishops, and 
 barons — the priest, reeve, and four men of 
 each township. We must think of the town- 
 ship as "the body of alodial owners." "It 
 is as an owner of land, or as a fully qualified 
 
 * Medley, Stud. Man. of Eng. Const. Hist. 58. 
 
THE BEGINNINGS OF PARLIAMENT 141 
 
 'lawful man' . . . that the freeman has rights 
 and duties." » Among the rights of the free 
 landowner of the township was the privilege 
 of participation in the tun-gemot, which made 
 by-laws, elected its own officers (the reeve, 
 tithingman, and beadle), arranged the repre- 
 sentation of its interests in the higher courts, 
 and carried on certain matters of local fiscal 
 and police administration.^ Very likely the 
 four men were elected by the free landowners; 
 but even if they were not, they were their re- 
 presentatives in a very strict sense. Thus the 
 principles of election and representation were 
 found in the township. 
 
 After the Norman Conquest these princi- 
 ples came into close contact with national 
 affairs through the inquests. That very earli- 
 est fiscal inquest, the Domesday Survey, was 
 not made without recourse to the represent- 
 ative local machinery which was found con- 
 veniently at hand. The oaths were taken in the 
 shire court by sworn representatives of the shire, 
 of the himdred, and of the township.' During 
 
 1 Stubbs, Canst. Hist. § 39. 
 
 ^ Ibid. § 43. This was the case in free townships. Those de- 
 pendent upon lords were somewhat restricted. 
 
 ' Maitland, D. B. and Beyond, 10-12; Stubbs, Const. Hist. 
 § 126. 
 
142 THE BEGINNINGS OF PARLIAMENT 
 
 the reign of Henry II fiscal inquests to determine 
 the taxable property became very frequent. 
 Necessarily they were made by men who knew 
 the property which was to be assessed, by men 
 of the locality. The local machinery was there- 
 fore naturally called upon to furnish men for 
 the "juries." As a result the representative 
 elements of government were brought into 
 direct connection with the assessment of taxa- 
 tion, which was a step towards participation 
 in the granting of taxes. Besides this the itin- 
 erant justices who took the inquests sat in the 
 county courts and formed another link which 
 facilitated the transfer of the principles of 
 representation from local to national govern- 
 ment.' Enough has been said in a previous 
 chapter to make clear the influence which 
 the landed man has exerted in this matter of the 
 inquests. It only needs to be constantly borne 
 in mind that both the local fiscal "recogni- 
 tion" and the growth of the power of the Great 
 Council had to do with taxation. When the 
 representative element joined the element of 
 consent parliament came about. Before we 
 come to their union, however, it will be well 
 to note a few illustrations of the firm place 
 
 ' Stubbs, C<mst. Hist. § 127. 
 
THE BEGINNINGS OF PARLIAMENT 143 
 
 which the elective principle won in the jury 
 system and in the assessment of taxes during 
 the end of the twelfth and the beginning of 
 the thirteenth centuries. 
 
 The jury for the Grand Assize was elected 
 by four knights summoned for that purpose 
 by the sheriff.* The grand jury was in 1194 
 purely elective. Four knights were elected 
 in each county, who upon their oath chose 
 two lawful knights of each hundred, and those 
 two in turn elected ten knights of each hun- 
 dred, or if knights were lacking, lawful and 
 free men, who with them made the jury of 
 twelve.^ This grand jury, among other things, 
 elected the recognitors for all the assizes.* In 
 1198, elections for the Grand Assize were in 
 the full county court.* Magna Carta provided 
 that the assizes should be taken quarterly in 
 the county court before two justices sent by 
 the king and four knights chosen by the county.^ 
 
 ' Glanvill, De Leg. Ang. lib. ii, c. 12, in Stubbs, Sel. Chart. 
 (8th ed.) 161. 
 
 ^ Fonna Procedendi in Placitis Coronae Begis, in Stubbs, 
 Sd. Chart. (8th ed.) 259. 
 
 " Ibid. Art. 2. 
 
 * Roger de Hoveden, iv, 61, in Stubbs, Sd. Chart. (8th ed.) 
 258. 
 
 = Mag. CaH. c. 18. Cf. Stubbs, Const. Hist. § 164. 
 
144 THE BEGINNINGS OF PARLIAMENT 
 
 Coming now to inquests which were fiscal 
 rather than judicial, we find that in 1181 Henry 
 II determined the liability of his subjects to 
 keep arms for service in the militia by means 
 of the oath before his justices of " lawful knights 
 or other free and lawful men of the hundred 
 and boroughs." ' We do not know that these "ju- 
 rors" were elected, but at any rate another point 
 of contact was offered between national affairs 
 and the representative system of the local courts. 
 The Saladin Tithe of 1188 afforded another 
 opportunity to make use of the inquest. In 
 cases where any were suspected of not vol- 
 untarily returning the proper amount, the 
 rating was to be settled by the oath of four or 
 six lawful men elected (we are not told how) 
 from the parish.^ In 1194 the itinerant jus- 
 tices were aided in determining the king's fiscal 
 rights by a jury of "twelve lawful knights or 
 free and lawful men" elected by the knights 
 of the shire." Four years later, to collect a 
 carucage, "the king sent through each county 
 a clerk and a knight, who, with the sheriff of 
 
 * Assize of Anns, Art. 9, in Stubbs, Sel. Chart. (8tli ed.) 154. 
 ' Benedict, ii, 31, in Ibid. 160. 
 
 ' Forma Procedendi, Art. 23, in Stubbs, Sel. Chart. (8th ed.) 
 259. 
 
THE BEGINNINGS OF PARLIAMENT 145 
 
 the county to which they were sent and with 
 lawful knights elected for this purpose, caused 
 to appear before them (1) the stewards of the 
 barons of that county, (2) from each town- 
 ship the lord or the bailiff of the township and 
 the reeve with four lawful men of the town- 
 ship, whether free or villein, and (3) from the 
 hundred two of the more lawful knights;" 
 which men took oath to a new Domesday In- 
 quest.' 
 
 By the year 1220 a great advance in the no- 
 tion of popular election and representation 
 was made apparent by the method of collect- 
 ing a carucage, which was by two knights 
 chosen in the full assembly of the shire and 
 "by the will and counsel of all of the county." ^ 
 Five years later a fifteenth was assessed and 
 collected by a system combining all previous 
 methods. The taxpayer first made oath to the 
 value of his property, and, in case of dispute, 
 a jury was called in. The money was collected 
 by the reeve and four men of each township 
 and paid by them to four knights elected in 
 the hundred, who in turn passed it on to the 
 agents of the king.* Again in 1232 a fortieth 
 
 * Roger de Hoveden, iv, 46, in Stubbs, Sel. Chart. (8th ed.) 256. 
 => Stubbs, Sel. Chart. (8th ed.) 352. « Ibid. 355. 
 
146 THE BEGINNINGS OF PARLIAMENT 
 
 was assessed in each township by four men 
 and the reeve on oath. The four men, who 
 were to be of the better and more lawful kind, 
 were elected. This tax was granted by the 
 "archbishops, bishops, abbots, priors, clergy, 
 earls, barons, knights, freemen and villeins." 
 Either the freeholders and villeins were con- 
 sulted in the county court or the lords were 
 taken to represent their tenants in the Great 
 Council. In either case the theory of consent 
 was passing down to the lower ranks of the 
 territorial scale; while if the latter be true, the 
 theory of representation was gaining ground 
 in the national assembly.* Even although the 
 only significance of the tax were its assess- 
 ment by elected men, that was much; for the 
 representatives of the people were stating the 
 extent of their liability to pay, and that is very 
 closely related to consent to any liability to 
 be taxed at aU.' In connection with the thirtieth 
 of 1237 we find the lords acting in the grant 
 fro se et suis villanis, in a representative capac- 
 ity. This time the aid was assessed by four 
 lawful men elected by each township.' 
 
 » Stubbs, Sel. Chart. (8th ed.) 360. 
 * 1 Palgrave, Eng. Com. 275, 276. 
 ' Stubbs, Sd. Chart. (8th ed.) 366. 
 
THE BEGINNINGS OF PARLIAMENT 147 
 
 These repeated uses of the elective and 
 representative principles in the assessment and 
 collection of national taxes were rapidly pre- 
 paring the way for a parliament in which the 
 whole people would have a share. An assem- 
 bly analogous to parliament already existed 
 in the shire court which, with its " archbishops, 
 bishops, abbots, priors, earls, barons, knights, 
 and all free tenants of the whole county, to- 
 gether with the four men and the reeve from 
 each township and the twelve lawful men 
 from each borough," contained all the ele- 
 ments of the later national legislature. All of 
 them, it is to be noticed, were landed men, 
 even the "lawful man" had of necessity his 
 real property. Yet these elements were "dis- 
 tinctly Teutonic in origin, and not a creation 
 of feudalism." Thus had the ancient national 
 institutions survived in the township and shire 
 in order that now, brought into contact with 
 the central administration by the fiscal busi- 
 ness upon which the king's officers went into 
 the shire, they might become the groundwork 
 of the new national institution.* 
 
 Already the elective and representative 
 principles, first observed to reach out towards 
 
 * Stubbs, Sd. Chart. (8th ed.) 358. 
 
148 THE BEGINNINGS OF PARLIAMENT 
 
 national aflfairs in the matter of taxation, had 
 shown themselves in other branches of na- 
 tional activity. In 1198 coroners began to be 
 elected in the counties to keep the pleas of 
 the crown.' Magna Carta provided that all 
 bad customs of the forests should be inquired 
 into in each county by twelve sworn knights 
 of the same county, who should be elected by 
 the probi homines of the county,^ A writ is 
 extant calling for the election, by the knights 
 and probi homines of the county, of four of 
 the more lawful and discreet men to inquire 
 into the disputed interpretation of some ar- 
 ticles of the Great Charter. Such an inquest 
 was strictly neither judicial nor financial, but, 
 as Bishop Stubbs remarks, is more of the char- 
 acter of political deliberation than anything 
 hitherto laid before a jury.' 
 
 The actual entrance of the representatives 
 of the small landowners into the national as- 
 sembly was, however, deferred until the theory 
 of consent became a somewhat more estab- 
 lished practice. But before that came about, 
 there were several Great Councils attended 
 by representatives of a part of the people. As 
 
 * Forma Procedendi, Art. 20, in Ibid. 259. 
 
 ' Mag. Cart. c. 48. ' Stubbs, Sel. Chart. (8th ed.) 357. 
 
THE BEGINNINGS OF PARLIAMENT 149 
 
 these served as important precedents for more 
 perfect representation, we must briefly look 
 at them. We begin with that assembly called 
 together by the justiciar at S. Alban's upon 
 August 4, 1213, a date worthy of memory in 
 the history of Uberty. It was attended by the 
 usual bishops and barons, and in addition by 
 the reeve and four men of each township. These 
 last-named were present to give inquest as 
 to the value of the lands for which the church 
 demanded restitution at the hands of the king. 
 The township men had not yet passed beyond 
 the stage of the inquest, but it was through 
 the inquest that they won a place in legisla- 
 tion, and now they made a great leap towards 
 the desired goal by making an inquest in the 
 national assembly. Furthermore larger ques- 
 tions than the assessment of damages were 
 brought before the whole body, and the repre- 
 sentative men were treated as a part of the 
 council for the hearing of the grievances with 
 which the faithlessness of the king had bur- 
 dened the whole nation.* Popular representa- 
 tion acquired another precedent with the writ 
 of John dated November 7, 1213, and sum- 
 moning to Oxford a council in which the 
 
 * Stubbs, Cmist. Hist. § 154. 
 
150 THE BEGINNINGS OF PARLIAMENT 
 
 barons and four discreet men of the shire were 
 to meet " to speak with us concerning the busi- 
 ness of our realm." * Whether or not the as- 
 sembly actually convened, we do not know.* 
 For another instance of county representa- 
 tion we have to wait for over forty years. The 
 kingdom was in 1253 left in the care of the 
 queen and Earl Richard, while Henry III niade 
 an expedition to Gascony. Money was needed 
 for the campaign, and the regents called to 
 council the prelates and magnates, who for 
 themselves promised an aid. So strong had 
 become the principle of consent that even the 
 prelates would not answer for the rest of the 
 clergy, who were not represented. They did 
 indeed express the opinion that the clergy might 
 follow their example if the tenth granted for 
 the crusade were given up or postponed, but 
 this was probably not said by them as repre- 
 sentatives of the lesser clergy. Likewise the 
 barons consented to go to Gascony, but would 
 not answer for the rest of the laity, who, how- 
 ever, might go if the charters were confirmed. 
 In this state of affairs it seemed necessary for 
 the regents to treat with those who had au- 
 
 1 Stubbs, Sel. Chart. (8th ed.) 286. 
 =* Stubbs, Const. Hist. § 154. 
 
THE BEGINNINGS OF PARLIAMENT 151 
 
 thority to bind the lesser subjects. Hence there 
 was convened at Westminster on April 26, 
 1254, a Great Council, to which were sum- 
 moned two knights to be chosen by each county 
 court and representatives of the clergy of each 
 diocese, who were to report how large an aid 
 their constituents were able to give. The re- 
 iteration of grievances was the only thing which 
 the assembly accomplished, but the very meet- 
 ing of such a body was full of promise for the 
 future.* 
 
 The next three or four years were marked 
 by an unceasing struggle between the king and 
 the barons. Foreign favorites received princely 
 gifts from the funds which Henry should have 
 spent for public purposes. The war in Gas- 
 cony had been financially disastrous; the king 
 was a bankrupt. Then the pope conceived the 
 idea of selling the crown of Sicily to Henry, 
 who was intimidated into agreeing to take it 
 for his second son Edmund. Not only was 
 a further debt of 140,000 marks thus contracted, 
 but the king was also plunged into another 
 war and the nation put in danger of the influx 
 of more aliens. Henry's cry became more than 
 
 » Stubbs, Cmst. Hist. § 175; Stubbs, Sel. Chart. (8th ed.) 
 375. 
 
152 THE BEGINNINGS OF PAELIAMENT 
 
 ever for money, while more than ever the barons 
 resisted. For the first time on record the mag- 
 nates in 1255 refused an aid on the ground that 
 they had not been summoned in the manner 
 prescribed by Magna Carta. The king had 
 the support of some of the greatest earls, as 
 well as of his prosperous alien friends, who 
 enjoyed the power which castles and revenues 
 and the infringement of law gave; but they 
 alone could not maintain the king, who needed 
 the financial aid of the large body of unor- 
 ganized owners of taxable property. So it came 
 about that in 1258 the refusal of the Great 
 Council to grant the king's demand for money 
 except upon terms of reform forced Henry 
 for the time to put himself in the hands of the 
 barons. A committee of twenty-four, half from 
 the royal council and half chosen by the barons, 
 were to enforce temporary reforms. Mean- 
 while the assembly adjourned pending the 
 formulation of a scheme for government. 
 
 When the council met at Oxford on the 11th 
 of June, it was as a full assembly of the baron- 
 age and higher clergy, the former in arms. Called 
 by Henry's followers the Mad Parliament, it 
 had the courage, whether wisely or not, to make 
 constitutional demands far in advance of the 
 
THE BEGINNINGS OF PARLIAMENT 153 
 
 times. These demands, formulated in the Pro- 
 visions of Oxford, required that all public acts 
 of the king be under the restraint of a coun- 
 cil of fifteen, chosen by four of the committee 
 of twenty-four, two elected from the king's 
 half of that committee by the barons' half, and 
 two from the barons' twelve by the king's 
 twelve. This council of fifteen, besides exer- 
 cising a control over administrative affairs 
 which was not to be confirmed as a right of 
 the people for five hundred years, and then 
 only by indirection, was to be given a legis- 
 lative power of an unfortunate sort. Three 
 times a year it was to meet in parliament twelve 
 others chosen by the barons to discuss com- 
 mon business in behalf of the whole com- 
 munity.* It was thus a reproach to the new 
 system that it was oligarchic and left without 
 recognition the principle of representation which 
 had been so long developing itself. Such an 
 omission was a source of immediate weakness, 
 for although the subject's right to be heard 
 was partially vindicated, the Provisions were 
 not a complete expression of the notion of con- 
 sent, which was already far outstripping the 
 
 * For the documents relating to the Provisions, see Stubbs, 
 Sel. Chart. (8th ed.) 378 et seq. Cf . Stubbs, Const. Hist. § 176. 
 
164 THE BEGINNINGS OF PAELIAMENT 
 
 idea of 1215 that only the barons had rights 
 in the granting of taxes. 
 
 The barons, or a considerable portion of 
 them, were dilatory in carrying out the reforms. 
 Those who had joined the movement against 
 the king for purely selfish motives were sat- 
 isfied with the mere gaining of their private 
 ends. This left the knights, the landowners 
 next below the baronage, still suffering wrongs. 
 They found a friend in Edward, the king's son, 
 who urged their rights before the council, with 
 the result that some of the reforms were for- 
 warded. Associated with Edward in the cause 
 of liberty for the lower ranks was Simon de 
 Montfort, shortly to become the leader of the 
 opposition to the king in the struggle of Uberty. 
 The new government began to break up, but 
 the king did not find himself able to have his 
 own way. Each party distrusted the other and 
 prepared for war. 
 
 It was under such conditions that the chiefs 
 of the crumbling provisional government, Si- 
 mon de Montfort, the Earl of Gloucester, and 
 the Bishop of Worcester, summoned to S. 
 Alban's the assembly of 1261, which marks 
 the third occasion when knights (this time 
 three from each shire) were invited to attend 
 
THE BEGINNINGS OF PAKLIAMENT 155 
 
 a national council. De Montfort, as leader of 
 the progressive barons, probably saw in this 
 a means to strengthen his party for the armed 
 conflict which seemed imminent. The knights 
 had much in common with the barons, for as 
 landowners they had an interest in the move- 
 ment of the day, which was very like that of 
 the tenants-in-chiei in kind, although in de- 
 gree it was less. An amalgamation of the two 
 bodies meant present power and future per- 
 manence in the legislative department. The 
 king feared the present power and therefore 
 ordered the sheriffs to send the knights, not 
 to S. Alban's, but to Windsor, where he pro- 
 posed to treat for peace. No immediate gain 
 came from either summons, but the king had 
 put himself upon record as approving a recog- 
 nition of the knights which the barons had 
 conceded. There was added another precedent 
 to representation in parUament and to the union 
 therein of all the estates.* 
 
 Edward became reconciled to his father, 
 a truce was obtained and settlement of the 
 differences between Simon and the king sought 
 by arbitration. Simon himself went abroad, 
 and for a time open war was delayed. Upon 
 
 * Stubbs, Cmd. Hist. § 176. 
 
156 THE BEGINNINGS OF PARLIAMENT 
 
 De Montfort's return and the failure of arbi- 
 tration, matters came soon to a head. Simon 
 demanded a reconfirmation of the Provisions 
 of Oxford and upon the king's refusal began 
 war. Henry was forced to a reluctant promise 
 to observe the Provisions, but Edward held 
 out for a time. Then arrangements were finally 
 made to refer the whole matter to Louis IX 
 of France. The arbitrator gave a judgment 
 annulling the Provisions and leaving Henry 
 his former freedom to appoint ministers, coun- 
 cil, and sheriffs, as well as to employ aliens, 
 whose favors poUtical and financial at the hands 
 of the king had been one fruitful source of dis- 
 content.' Such a decision was not to be borne. 
 Open war ensued, and at the battle of Lewes, 
 in May, 1264, Henry became the barons' pris- 
 oner. To the assembly which was immediately 
 convened by De Montfort in the name of the 
 king, to determine a new scheme of govern- 
 ment, were summoned four knights of the shire 
 elected in the county court. Another parlia- 
 ment in the early part of 1265 completed the 
 arrangements for the new order of things, and 
 this marks the real beginning of the modem 
 English legislature. To it were summoned all 
 
 ' Stubbs, Cmst. Hist. § 176. 
 
THE BEGINNINGS OF PARLIAMENT 157 
 
 the bishops, abbots, and barons who were not 
 hostile to the new order of things, two knights 
 of each shire and two representatives of each 
 borough and city. There was no order for the 
 election of the representative members, but 
 the custom of election was too well estabUshed 
 not to be observed on this occasion. Thus for 
 the first time we see combined the old com- 
 mune concilium with the elected representa- 
 tives of the small freeholders and burgesses. In 
 a body of such model all landed men except the 
 lesser clergy had some voice, direct or indirect. 
 The victory, although important in ultimate 
 results, was short-lived. De Montfort was de- 
 feated and slain in battle the same year, Henry 
 was freed, the baronial party reduced. But 
 remnants of the victory remained, for after 
 the subjugation of the barons Henry yet found 
 it wise to summon the Parliament of Marl- 
 borough (1267) and to concede all the Pro- 
 visions of Oxford except the demands for the 
 appointment of ministers by the council and 
 the election of sheriffs. It is even deemed prob- 
 able that the knights of the shire participated 
 in these proceedings, although the representa- 
 tives of town and city did not.* A power once 
 
 * Stubbs, Ctmst. Hist. § 177. Cf. the writs in Stubbs, Sd. 
 Chart. (8th ed.) 411, 415. 
 
158 THE BEGINNINGS OF PARLIAMENT 
 
 exercised by the people at the expense of the 
 sovereign can never be fully recovered to the 
 prerogative. A great assembly in 1269 was 
 attended by the more powerful men of the cities 
 and boroughs.' 
 
 The baronial party was completely routed, 
 and in a position to offer no more resistance 
 during Henry's last years. When Edward I suc- 
 ceeded to the throne in 1272, England became 
 blessed with a king who, while claiming the 
 right to sovereign authority, had yet some sym- 
 pathy with the people. Edward was a strong 
 king, but his strength did not lie solely in the 
 firm hand with which he carried out his own 
 purposes; he was equally steadfast in hold- 
 ing faith when his subjects forced from him 
 concessions of sovereignty. He became king 
 of the whole people, without opposition or even 
 question, and received in 1273 the allegiance 
 of all his subjects through the oath of a con- 
 vention composed not only of the prelates and 
 barons, but also of four knights from each 
 shire and four citizens of each city. This con- 
 vention also confirmed the provision which, 
 pending Edward's return from the crusade, 
 the royal council had made for the government 
 
 • Stubbs, Const. Hist. § 178. 
 
THE BEGINNINGS OF PARLIAMENT 159 
 
 * 
 
 of the nation under the regency of the Arch- 
 bishop of York.' 
 
 The first general parliament of Edward I, 
 in April, 1275, enacted the Statute of West- 
 minster the First, whose preamble speaks of 
 "the community of the realm thither sum- 
 moned." ° Whether or not we are to infer that 
 representatives of the shires and townships 
 were members of the assembly, the statute does 
 certainly illustrate the hold which the elective 
 principle had gained. In it we read, "Because 
 elections ought to be free, the king command- 
 eth upon great forfeiture that no man by force 
 of arms, nor by malice or menacing, shall dis- 
 turb any to make free election." ' The statute 
 covers a very wide field, promising to all com- 
 mon right; forbidding excessive amercements, 
 abuses of wardship, irregular demands for 
 feudal aids; reviewing the inquest system, the 
 Provisions of Oxford, and other important 
 things. The price of the legislation was a grant 
 of custom: half a mark on each sack of wool 
 or three hundred woolfells, one mark on each 
 last of leather going out of the country. Wool 
 
 * Ann. Win. 113, in Stubbs, Sel. Chart. (8th ed.) 429. 
 ' Cf. Patent Roll, July 24, 1276, in Stubbs, Sel. Chart. (8th 
 ed.) 430. ' Stat. West. I, c. v, in Ibid. 450. 
 
160 THE BEGINNINGS OF PARLIAMENT 
 
 had long, as the staple product of England, 
 been the desired object of taxation, but never 
 before had there been a legislative enactment 
 regarding it. Henceforth it became an im- 
 portant factor in fiscal affairs.* 
 
 Later in the same year of 1275, during the 
 month of October, another magnum parlia- 
 mentum made laws touching the Jews, and 
 granted a subsidy of a fifteenth, and to this 
 parliament were surely summoned two elected 
 knights of each county." For eight years Ed- 
 ward got along with only this one general grant. 
 A scutage was taken in 1277. In a time of such 
 light taxation there was little opportunity for 
 the representative system to confirm itself. 
 But the king did need money, and in order to 
 get it he had at least to recognize the principle 
 of consent. In his reluctance to go to parlia- 
 ment for it, he made separate agreements with 
 individuals and communities for, grants and 
 subsidies." The returns not proving sufficient, 
 Edward next called two provincial councils, 
 one for York and the other for Canterbury. 
 
 * Stubbs, Sd. Chart. (8th ed.) 448-452. 
 =* Ann. Winton, 119, and Close Rolls, Oct. 24, in Ibid. 430; 
 Stubbs, Const. Hist. § 214. 
 ' Writ No. I in Stubbs, Sel. Chart. (8th ed.) 464. 
 
THE BEGINNINGS OF PARLIAMENT 161 
 
 Both clergy and laity attended each, while 
 four knights of each shire and two men of each 
 city, borough, or market town were also sum- 
 moned, as were aU freeholders capable of bear- 
 ing arms and holding more than a knight's 
 fee.» 
 
 These events were in 1282. Again there was 
 no further call for a general tax for several 
 years, although for the trial of David of Wales 
 the king in 1283 gathered an assembly to which 
 representatives of shire and town were sum- 
 moned." From 1286 until 1289, the king was 
 in France, with his chancellor. In the latter 
 year he sent over asking the magnates for an 
 aid. The answer was that none should be forth- 
 coming until the king returned. Edward has- 
 tened back and heard the complaints of ill-doing 
 on the part of the judges in the chancellor's 
 absence. Some of the judges were removed, 
 and then came the three parliaments of 1290, 
 to the second of which two or three elected 
 knights of each shire were summoned.* 
 
 One of the acts of the year, passed before 
 
 * Stubbs, Sel. Chart. (8th ed.) 465. 
 
 * Stubbs, Const. Hist. § 179. 
 
 ' Ann. Osney, 316, 318; Ann. Waverl. 408, in Stubbs, Sel. 
 Chart. (8th ed.) 434-435. 
 
 * Writ No. II, in Ibid. 477. 
 
162 THE BEGINNINGS OF PARLIAMENT 
 
 the knights came to the assembly, was the 
 Statute Quia Emptores, designed to avoid 
 the process of subinfeudation, by which free 
 tenants sold lands in such manner that the 
 purchasers held by services due to the sellers. 
 The lord of the seller was thus often deprived 
 of the escheat, wardship, and marriage of the 
 lands sold, "which things indeed seemed very 
 hard and extreme to the magnates and other 
 lords." Hence the king, "at the instance of 
 his magnates," granted that it should be law- 
 ful for lands to be sold only in such manner 
 that the grantee should hold them by the same 
 services and customs by which his grantor had 
 held.* This act was the supplement to the 
 Statute of Mortmain in which eleven years 
 previous the king had decreed that, because 
 "lords in chief lost their escheats," estates 
 should not be put into the hands of the church 
 so as to free them from services.^ These 
 statutes — ordinances, rather, for they were 
 not acts of parliament — originated, indeed, 
 in the greed of the king and of the great land- 
 lords, but they yet had a wonderfully good in- 
 fluence upon the liberties of England, which 
 merits passing comment. Not only did the 
 
 * Stubbs, Sel. Chart. (8th ed.) 478. =* Ibid. 458. 
 
THE BEGINNINGS OF PARLIAMENT 163 
 
 doing away with subinfeudation overcome some 
 of the destructive forces of feudalism; it also 
 made the lot of the humble people more bear- 
 able by avoiding the multiplication of mesne 
 lords between sovereign and villein.* 
 
 The next and final steps towards a repre- 
 sentative parliament came in 1294 and 1295, 
 and, as might be expected, were the results 
 of further attempts to raise money. Suddenly 
 plunged into a war with France, Edward found 
 it imperative in the former year to have sup- 
 pUes without delay. He therefore made some 
 arbitrary seizures,^ but recognized the con- 
 stitutional procedure by summoning the pre- 
 lates to meet in September at Westminster, 
 whither he also called elected representatives 
 of the lower clergy.' In November another 
 convocation was had at Westminster, to which 
 were summoned the magnates and four knights 
 to be elected in each county court.^ 
 
 To the French war was added a Welsh 
 rebellion, and Edward's wants became pro- 
 portionally grievous. A Great Council held in 
 
 * Stubbs, Const. Hist. § 264. 
 
 ^ Chron. W. de Hemingburgh, ii, 53, 54, in Stubbs, Sd. Chart. 
 (8th ed.) 437. 
 » Writ No. I, in Ibid. 480. 
 
 * Writ No. n, in Ibid. 481. 
 
164 THE BEGINNINGS OF PARLIAMENT 
 
 the summer of 1295 does not seem to have 
 tided affairs over for long, and in the late au- 
 tumn he adopted the expedient of a model 
 parliament. Variously constituted bodies had 
 been tried previously, as occasion demanded. 
 Once ' the knights of the shire and repre- 
 sentatives of the cities and boroughs were both 
 summoned; sometimes only the knights were 
 called; again both of them were omitted and 
 the barons granted aids in behalf of the com- 
 monalty, as well as of themselves. Sometimes 
 the king treated separately with the different 
 estates, — clergy, lords and commons, — and 
 obtained grants from each. The period had 
 been one of transition and of doubt, and no 
 definite system had been evolved beyond the 
 principle of consent. Separate dealing with 
 the estates or with the counties or boroughs 
 was cumbersome and unsatisfactory, while 
 the returns were insufllcient. In the emer- 
 gency of war, Edward I now needed the actual 
 common counsel of the whole realm, and he 
 needed as well an adequate grant of money. 
 A representative parliament combining all the 
 elements previously used, and able to tax the 
 whole nation, was his refuge. Hence the writs 
 
 In 1265, when the lesser clergy were unrepresented. 
 
THE BEGINNINGS OF PARLIAMENT 165 
 
 of September and October, 1295, summoned 
 (1) the prelates and the representatives of the 
 lesser clergy,* (2) the barons,* (3) two elected 
 knights from each shire, two elected citizens 
 of each city and two elected burgesses of each 
 borough, who should have power to act in be- 
 half of their communities.' This was the be- 
 ginning of the perfect parliament. Apparently 
 the aid granted was discussed by each of the 
 three estates separately, for each voted a dif- 
 ferent fraction of their movables,* but the com- 
 plete representation of all the landed men of 
 the nation above a modest rating was obtained, 
 and more perfect unity was the natural and 
 necessary result. From that time extends an 
 almost continuous succession of parliaments 
 of the De Montfort type, with representatives 
 of the three estates, clergy, barons and com- 
 mons. 
 
 A backward glance over the ground just 
 traversed wiU serve to impress us afresh with 
 the intimate relations of the landed men to 
 the movement towards parliament. Let us 
 
 » Writ No. n, in Stubbs, Set. Chart. (8th ed.) 484. 
 => Writ No. m, in Ibid. 485. 
 » Writ No. IV, in Ibid. 486. 
 * Writ No. V, in Ibid. 486. 
 
166 THE BEGINNINGS OF PARLIAMENT 
 
 look at the chief elements which combined to 
 make up the institution. First in point of time 
 was that principle of popular government found 
 in the Germanic tribal assembly. This was a 
 seed of such marvelous vitality that it lived 
 through the migration to England and the rise 
 of kings. The process of amalgamation, while 
 neglecting this principle in the national struc- 
 ture, left it fully operative in the shire, which 
 corresponded somewhat roughly to the old 
 tribal limits. Locally the principle persisted 
 for centuries, a right enjoyed by the free land- 
 owner. Quite independent of this element, 
 there grew up in the nation a theory that the 
 great landowners, as having the largest inter- 
 ests, should consent to taxation. It required 
 centuries of growth to establish the principle 
 as a theory, but just as it was becoming fixed, 
 there arose that system of inquests, designed 
 to secure the fiscal rights of the king against 
 the landowners, which brought national tax- 
 ation into close touch with the representative 
 local institutions. Concurrently came the ex- 
 tension of the principle of consent down the 
 territorial scale to the smaller freeholders who 
 enjoyed the elective franchise and the right 
 of representation in shire afiFairs. Then these 
 
THE BEGINNINGS OF PARLIAMENT 167 
 
 elements of election, representation, and con- 
 sent, brought together by force of the king's 
 need and the landowners' pressure for recog- 
 nition, joined to make parliament. 
 
 Once parliament was firmly constituted, 
 it promptly established its primary right, su- 
 preme power in taxation. Like nearly every 
 instance of encroachment upon prerogative, 
 this happened because the king wanted money. 
 A full parliament of all the estates was held 
 in 1296 at S. Edmund's to raise money to re- 
 cover Gascony. As was the case the year be- 
 fore, the three estates voted separately, the 
 barons and knights giving a tweHth, the cities 
 and boroughs an eighth. But the clergy, for- 
 bidden by a papal bull to pay any taxes levied 
 by lay princes, would make no grant.' When 
 they persisted in their refusal, the king out- 
 lawed them and seized their property.^ Next 
 the barons alone were summoned to Salisbury 
 and asked to serve in Gascony. They refused, 
 and Edward was provoked to arbitrary pro- 
 cedure the like of which he never at any other 
 
 * Ann. Trivet, 352, and Patent Rolls, Dec. 16, in Stubbs, 
 Sel. Chart. (8th ed.) 439. 
 
 * Ann. Trivet, 353, in Ibid. 440. 
 
 ' W. de Hemingburgh, ii, 121, in Ibid. 440. 
 
168 THE BEGINNINGS OF PARLIAMENT 
 
 time attempted. This was the seizure of wool, 
 an illegal step which stirred up so great an op- 
 position that it was placed out of the power 
 of the king to take it again. Each county was 
 at the same time ordered to furnish supplies 
 of wheat, oats, beef and pork.' Fuel was added 
 to the flame of popular indignation by a fur- 
 ther demand upon the barons for foreign mili- 
 tary service. Edward still needed money and 
 again asked for it, only to meet with another 
 rebuff.* But he succeeded in getting together 
 a few subservient men who had no summons 
 and no representative authority, and who 
 readily granted, ostensibly in behalf of people 
 who were not their constituents, an eighth for 
 the barons and knights and a fifth for the towns.' 
 Edward soon sailed for Flanders, but not until 
 the incensed barons had drawn up and pre- 
 sented a list of grievances which the king avoided 
 answering by his departure.* Shortly before 
 he left, Edward issued letters for the collec- 
 tion of the eighth and fifth which had been 
 "granted" and of a third of the lay fees of the 
 
 * W. de Hemingburgh, ii, 119, in Stubbs, Sd. Chart. (8th ed.) 
 440. 
 
 " Matt. Westm. 430, in Ibid. 441. 
 ' Patent Rolls, July 30, in Ibid. 442. 
 
 * Rishanger, 175, in Ibid. 442. 
 
THE BEGINNINGS OF PARLIAMENT 169 
 
 clergy. He also made another seizure of wool, 
 as well as of corn and other supplies. Lastly 
 he left a summons for the barons and knights 
 who were staying at home to follow with his 
 son Edward the next month. 
 
 But the leaders of the barons, Bohun and 
 Bigod, were alert. On the very day before the 
 sailing they forbade the Barons of the Ex- 
 chequer to collect the aid, on the ground that 
 without consent no tax ought to be exacted 
 or laid.* The king learned of this just as he 
 was sailing, but commanded the Exchequer 
 to make the collection, under a proclamation, 
 however, that it should not stand as a prece- 
 dent; the wool was to be taken, but only by 
 way of purchase. The young prince, who was 
 left as regent, received similar instructions. 
 But this was not satisfactory to the aroused 
 barons, who forced the prince to summon a 
 parUament of prelates, barons, and knights of 
 the shire, the towns and inferior clergy not 
 being represented.^ This parliament secured 
 from the regent a confirmation of the charters, 
 annulled the aid of an eighth and a fifth, and, 
 its rights thus recognized, granted an aid of a 
 
 ' Matt. West. 430, in Stubbs, Sel. ChaH. (8th ed.) 444. 
 ^ W. de Hemingburgli, ii, 147, in Ibid. 444. 
 
170 THE BEGINNINGS OF PARLIAMENT 
 
 ninth from the laity assembled. This grant 
 was later extended to the towns. The king 
 confirmed the regent's acts, and salved feelings 
 permitted the clergy to come to Edward's aid, 
 when, shortly afterwards, the Scots invaded 
 the north. While the papal buU had forbidden 
 the clergy to pay exactions laid by the laity, 
 it did not prohibit a voluntary offering. Hence 
 the southern province, for the defense of the 
 country, granted a tenth, while the northern 
 province gave a fifth. It was not that the sub- 
 ject would be free from taxation, but that he 
 would be supreme in it. Theoretically he won 
 his point, although it was tumultuously and 
 in a parliament not perfectly constituted, for 
 the king granted that he and his heirs would 
 "for no business from henceforth . . , take 
 such manner of aids, tasks nor prises, but by 
 the common assent of the realm, and for the 
 common profit thereof, saving the ancient aids 
 and prises due and accustomed." * 
 
 In calling the parliament of 1295 Edward I 
 had laid down the principle that "that which 
 touches all should be approved by all" and 
 
 * Confirmatio Cartarum, vi, in Stubbs, Sd. Chart. (Sth ed.) 
 496. As to all the events of 1296 and 1297, see Stubbs, Const. 
 Hist. § 180, and Sd. Chart. 487. 
 
THE BEGINNINGS OF PARLIAMENT 171 
 
 "common dangers must be met by measures 
 concerted in common." ' This was intended 
 immediately to refer only to discussion in 
 parliament concerning supplies for the war 
 with France, but was of so universal a nature 
 that its application to general legislation could 
 not fail to be seen. In the making of law, then, 
 parliament must soon claim supreme power. 
 A very simple explanation of the process by 
 which parliament won this its second right 
 woidd be that it received it as the successor of 
 the Great Council, but this would not be true. 
 Parliament did attract to itself the legislative 
 power of the Great Council, but the older body 
 did not at once pass away, was not succeeded 
 by the newer. When in taxation the broader 
 application of the principle of consent became 
 recognized, a new body representative of all 
 taxpayers grew up and attracted to itself the 
 right of assent. Probably parliament was not 
 at the time looked upon as in any way the suc- 
 cessor of the Great Council, but rather as its 
 supplanter in one Une of activity. Therefore 
 no such simple argument could have been 
 stated by the men of the year 1300 as that par- 
 liament, being the successor of the Great Coun- 
 * Writ n, Stubbs, Sel. Chart. (8th ed.) 484. 
 
172 THE BEGINNINGS OF PAELIAMENT 
 
 cil, should have its legislative power, as it had 
 the taxative. If such a formula had been pos- 
 sible, the commons would have shared with 
 the lords the judicial power which the latter 
 got when the Great Council lost it. 
 
 What, then, was the process by which the 
 representative body won its right in law-mak- 
 ing? In early times, it has been argued, the 
 publication of new laws in the shiremoot may 
 have been deemed necessary for their validity. 
 The people accepted the laws of Edgar and 
 Edward in the days of Canute and of William I, 
 and Magna Carta and the Provisions of Ox- 
 ford were promulgated in the county courts, 
 where all men were bound by oath to obey 
 them.* But such procedure looked rather to 
 the execution than to the making of laws. It 
 did indeed point toward the consent of the 
 people to legislation, but only remotely. That 
 such consent was coming to have some re- 
 cognition in theory, the general trend of events 
 in the thirteenth century indicates. Even the 
 king enunciated the ideal which was rising in 
 men's minds when he called the parliament 
 of 1295. The practice of legislation in parlia- 
 ment, while in part the realization of this belief 
 
 » Stubbs, Canst. Hist. § 224. 
 
THE BEGINNINGS OF PARLIAMENT 173 
 
 which had been growing up, was, however, 
 won by the use or non-use of the primary power 
 of taxation. "The admission of the right of 
 parHament to legislate, to inquire into abuses, 
 and to share in the guidance of national policy, 
 was practically purchased by the money granted 
 to Edward I and Edward III." ' 
 
 The Confirmatio Cartarum furnishes a 
 striking example of the process of bargain and 
 sale, it being distinctly understood that the 
 grant of parliament was in return for the re- 
 enactment of Magna Carta and the enact- 
 ment of a law recognizing the right of the peo- 
 ple in the matter of taxation. Again in 1300, 
 in return for the vote of a fifteenth,^ Edward I 
 granted in pariiament twenty articles in addi- 
 tion to the charters. These Articuli Super 
 Cartas covered a wide range of legislation, 
 touching upon remedies for abuses of the char- 
 ters, the restraint of purveyance, reform of 
 the jury system, the assaying of gold and silver, 
 forest reforms, and the jurisdiction of courts. 
 In the following year the carrying out of these 
 reforms and another confirmation of the char- 
 ters were demanded and granted as the con- 
 
 » Stubbs, Const. Hid. § 289. 
 
 ^ Matt. Westm. 433, in Stubbs, Sel. Chart. (8th ed.) 446. 
 
174 THE BEGINNINGS OF PARLLOIENT 
 
 ditions of a vote of money.' Further illustra- 
 tions of the growth of legislative power in this 
 manner will be noticed later, but these will 
 suffice to show the process by which parlia- 
 ment entrenched itself. The victory which the 
 people had won was recognized by the coro- 
 nation oath of Edward II. "Do you grant," 
 he was asked, "to hold and to keep the laws and 
 righteous customs which the community of 
 your realm shall have chosen, and will you de- 
 fend and strengthen them to the honor of God, 
 to the utmost of your power?" "I grant and 
 promise," was the reply .^ As we shall shortly 
 see, the victory was far from perfect, and the 
 power of parliament in legislation was theo- 
 retical rather than practical; yet, as we have 
 already had many occasions to notice, a theory 
 of liberty is the basis of a vindicated right. 
 The share of the landowner as a taxpayer in 
 forcing the recognition of the theory is of the 
 highest importance; his contribution to the 
 establishment of the practice is a subject for 
 further discussion. 
 
 » Stubbs, Const. Hist. § 181. ^ Hjy § 349 
 
VII 
 
 THE GEOWTH OF PARLIAMENT 
 
 In spite of the theoretical estabhshment of the 
 principle that action by parliament was essen- 
 tial in taxation and legislation, there still re- 
 mained in the crown a residuum of preroga- 
 tive which made it possible for the king often 
 to ignore the representative assembly. It was 
 not until parliament had removed this obstacle 
 that popular rights were fully vindicated, and 
 this was virtually accomplished in the four- 
 teenth and fifteenth centuries, — a very brief 
 time, if we but remember that prerogative was 
 custom and as such a part of the constitution. 
 Since it is inroad upon prerogative that marks 
 the growth of parliament, we must first get 
 some idea of the body called the continual 
 council through which, in the main, the king 
 exercised his ancient rights. As we shall have 
 little more occasion to speak of the Commune 
 Concilium or Great Council as an active body, 
 it will be understood that "council" hereafter 
 means the smaller continual council. 
 
176 THE GROWTH OF PARLIAMENT 
 
 From the very earliest times English kings 
 had about them a body of household retainers 
 and servants who relieved them of such por- 
 tions of their oflScial duties as they were un- 
 able personally to perform. Even the German 
 princeps had his comitaius, perhaps the an- 
 cestor of the Privy Council. In the time of the 
 Norman and early Plantagenet kings, there 
 was the Curia Regis, composed of appointees 
 of the crown, living for the most part in the 
 royal household, always near the king, and 
 aiding him in all administrative and judicial 
 affairs. As early as the reign of Henry II, traces 
 are found of the recognition of the king's pri- 
 vate advisers and officers of household, state, 
 and court as a somewhat definite body, but it 
 was only in the minority of Henry III that a 
 royal council first became distinguished from 
 the judicial bodies of the Curia Regis and from 
 the Great Council. It was not then a clearly 
 defined body of men with powers absolutely 
 fixed, but it probably contained the officers 
 of household and state, the whole judicial staff, 
 some bishops and barons, and a few other ad- 
 visers. It was a permanent resident council 
 always ready to act with the king upon any 
 emergency. Its members had their duties in 
 
THE GROWTH OF PARLIAMENT 177 
 
 the various departments of justice and busi- 
 ness administration whicli well qualified them 
 for action with the king upon questions of gen- 
 eral policy which arose from time to time. 
 What distinguished them as a council was that, 
 aside from their departmental duties, they had 
 a distinct function as counselors deliberating 
 upon matters of general policy, planning the 
 business of state, formulating the king's de- 
 mand for taxation, and framing legislation. In 
 origin the council was an executive body; what 
 authority it had in legislation, taxation, and 
 judicature represented the prerogative which 
 the crown retained.' 
 
 The powers of the council had long been 
 accruing and were such as might be expected 
 to center in a body of executive oflficials to whom 
 the king had for a long time delegated much 
 of his regular business. It only needed that 
 the ministers should come to feel an es'prit de 
 corps and to exercise their offices without royal 
 interference, as during the minority of Henry 
 III, for them to become a distinct feature of 
 the constitution, a body with an influence to 
 be counted upon. This influence, as Profes- 
 
 * Stubbs, Const. Hist. §§ 171, 230; 2 Anson, Law and Cus- 
 tom of the Constittdion, 84. 
 
178 THE GROWTH OF PARLIAMENT 
 
 sor Dicey has said, was paradoxical. "The 
 same body was at once the controller and the 
 servant of the Crown; the channel through 
 which the royal mandates passed, the instru- 
 ment of the prerogative; and at the same time 
 the check on the King's power, the curb placed 
 by the aristocracy on the arbitrary exercise of 
 his will. Hence increase of the Council's in- 
 fluence means, at one period of history, a Um- 
 itation of the prerogative; at another, as for 
 instance in the sixteenth century, an addition 
 to the royal authority." * The paradox is ex- 
 plained in this way: The council was an as- 
 sembly of purely royal officials, owing its exist- 
 ence to the king's pleasure and acting always 
 in his name. Its members were really servants 
 of the king, yet they were able often to check 
 him; for whUe, with the exception of a few 
 hereditary officers, they were appointed and 
 dismissed at the king's will, they were often 
 because of their power indispensable to the 
 crown. ^ Then, too, the value of their advice 
 was a constant source of influence.' Another 
 fact which added to the (check which they 
 exerted on the king was thaA the bishops in the 
 
 * Dicey, The Privy Councia(ed. 1887) 29. 
 2 Ibid. 31. 3 ^jj 33 
 
THE GROWTH OF PARLIAMENT 179 
 
 council were virtual representatives of the 
 clergy, who soon ceased to attend parliament 
 and granted taxes separately in convocation; 
 while the nobles, who were in the majority in 
 the council, had great estates and local influ- 
 ence which made it possible for them to treat 
 with the king on an independent footing. 
 
 In so far as the council acted as a check upon 
 the king, it was an influence making for liberty. 
 Imperfect it indeed was, because not repre- 
 sentative, but it was effectual in taking some 
 of the actual exercise of prerogative from the 
 crown. In so far as it was subservient to the 
 king, it was an obstacle to popular liberty, hence 
 more and more, as we shall later see, parlia- 
 ment attempted to control the council. It is 
 worthy of remark that when the council, as 
 under the Lancastrians, was made up of feudal 
 lords, it was a check upon the king. When, 
 however, under the early Tudors its members 
 were men of no great estate, it was the tool of 
 the king.' It is fair to say that whatever influ- 
 ence the council had in lessening prerogative 
 was exerted, if not always in the interest of 
 land, at least by landed men. 
 
 While the council often invaded the king's 
 * 2 Anson, Law and Cud. 86. 
 
180 THE GROWTH OF PARLIAMENT 
 
 peculiar reserve of authority, it must not be 
 thought that that reserve was soon exhausted. 
 On the contrary it continued through the four- 
 teenth and fifteenth centuries to offer many 
 points of resistance to the growth of popular 
 rights, and nearly always it was not the king 
 alone, but the king in council, which was the 
 medium through which prerogative found ex- 
 pression. It is a large field of inquiry that is 
 opened before us, but it may be well to review 
 it as briefly as may be, for in so doing we shall 
 be able to follow the growth of parliament. 
 Let us first consider the operation of prerog- 
 ative in the field of taxation, where parlia- 
 ment earhest established its theoretical su- 
 premacy. 
 
 There can be no question that the spirit of 
 the Confirmatio Cartarum was that the king 
 should take no tax without the consent of par- 
 liament. Yet the crown found loopholes for 
 the exercise of arbitrary taxation which caused 
 the people great annoyance, and but for their 
 sturdy resistance might have nuUified the great 
 concessions which had been made. This same 
 Confirmatio Cartarum has often been taken 
 as forbidding tallage without consent, but the 
 word tallagium was not used in the statute. 
 
THE GROWTH OF PARLIAMENT 181 
 
 which renounced " aides, mises et prises." A 
 king tenacious of prerogative could with plaus- 
 ibility argue that this meant only contributions 
 levied upon the kingdom at large without con- 
 sent, and did not apply to demands made ac- 
 cording to feudal right upon crown lands. So 
 the first three Edwards tallaged their demesne 
 lands in spite of the spirit of the law. In 1340, 
 however, the commons named as one of the 
 conditions of the grant of a custom the enact- 
 ment of a statute that the nation should "no 
 more be charged or grieved to make any com- 
 mon aid or sustain charge, except by the com- 
 mon assent " of the estates, " and that in 
 parUament." * Again in 1348, the commons 
 attached to a grant the condition that no tall- 
 age or similar exaction should be imposed by 
 the council.2 Further assurances against tall- 
 age were given by Edward III in 1352 and 
 1377, evidently to confirm a doubting parlia- 
 ment, for never after 1332 was demesne tall- 
 aged, although Edward often broke the statute 
 of 1340 in other respects. Scutage was taken 
 as late as 1385, and then fell out of use, while 
 the three customary aids, although apparently 
 they came under the provisions of the statute, 
 
 1 Stubbs, Const. Hist. § 257, => Ibid. § 259. 
 
182 THE GROWTH OF PARLIAMENT 
 
 continued to be taken much longer. Custom 
 is hard to overcome, but parHament had really 
 purchased a great increase in power.* 
 
 But it was not merely in the control of direct 
 taxation that parliament grew; it was equally 
 active in the matter of customs. The customs 
 consisted of (1) the ancient custom and prisage 
 of wine, (2) the subsidy on exported wool, or 
 new custom, (3) tunnage and poundage.^ 
 The ancient custom was an export duty, granted 
 by the first parliament of 1275, of haK a mark 
 upon each sack of wool or every three hundred 
 woolfeUs, and of one mark on every last of 
 leather.' This and the prisage upon imported 
 wine became a part of the hereditary revenue 
 of the crown. By express exception they did 
 not fall under the provisions of Confirmatio 
 Cartarum.* 
 
 In 1303 arose the new custom, which, in return 
 for certain privileges conceded by Edward I 
 to the foreign merchants, was granted by them 
 to the king. It was an addition to the ancient 
 custom of lOd. on each sack of wool or three 
 
 * On the whole matter of direct taxation, see Stubbs, Const. 
 Hist. § 275. 
 
 ^ 2 Anson, Law and Cust. 287. 
 ' Stubbs, Sel. Chart. (8th ed.) 451. 
 
 * Con. Cart, vi, vii, in Ibid. 494. 
 
THE GROWTH OF PARLIAMENT 183 
 
 hundred woolfells exported and 3d. in the 
 pound on all goods imported by aliens.' It was 
 a palpable evasion of parliamentary claims, 
 but technically a legal one, for although a pri- 
 vate negotiation for money such as Confir- 
 matio Cartarum attempted to avoid, it was 
 a bargain with foreigners, whose interests were 
 in no wise affected by the words of the statute. 
 It was, for all that, contrary to the freedom 
 of trade promised by the 41st clause of Magna 
 Carta, a consideration nevertheless which was 
 of slight importance at the moment in com- 
 parison with the fact that the king had seized 
 upon a means of making him less dependent 
 upon parliament. Naturally objection was 
 made. Parliament petitioned for the removal 
 of the new custom in 1309 and obtained it for 
 a year in order that its effect upon prices might 
 be determined, but it was restored again in 
 1310. During the ascendency of the Lords 
 Ordainers from 1311 to 1322, it was again 
 suspended, and again restored when Edward 
 II returned to power. Thereafter the king and 
 council went on making bargains with mer- 
 chants in excess of the old rate, while parlia- 
 ment regularly remonstrated. But since par- 
 
 • 2 Anson, Law and Cud. 286. 
 
184 THE GROWTH OF PARLIAMENT 
 
 liament could not control the king in his execu- 
 tive action, he was able with impunity to collect 
 the custom on the basis of the agreements he 
 had made, and parliament had to submit. 
 An assembly of unparliamentary constitution, 
 with the commons irregularly represented, in 
 1353 adopted the new custom in the Ordinance 
 of Staples, which received parliamentary sanc- 
 tion in the form of a statute the following year. 
 While parliament thus conceded a point to 
 the king, it soon won another, for in 1362 it 
 was enacted that neither merchants nor any 
 other body should henceforth set any subsidy 
 or charge on wool without the consent of par- 
 liament. Nine years later, in 1371, the law 
 was reenacted, and the conflict was for the 
 time at an end.' 
 
 The king had long enjoyed the right to seize 
 a portion of imported wine under the name of 
 prisage. Edward II began the custom of bar- 
 gaining with the merchants for the commuta- 
 tion of prisage at a fixed sum for each tun in 
 excess of the ancient levy. To this the king 
 in council added the fixing of a custom of so 
 many pence in the pound on other merchan- 
 dise. In this way tunnage and poundage grew 
 
 ' Stubbs, Const. Hist. § 259. 
 
THE GROWTH OF PARLIAMENT 185 
 
 up. Parliament never admitted the right of 
 the king and council in this matter, any more 
 than in the business of the staple, and after 
 the statute of 1371, the controversy seemed 
 closed.* The parliamentary victory was for 
 the time complete, and after the accession of 
 Richard II there was no instance until the 
 Tudors of an attempt at unauthorized taxation 
 of merchandise.'' 
 
 Even with direct and indirect taxation of 
 the sorts mentioned in the control of parlia- 
 ment, the king had still other sources of revenue. 
 He could borrow, and did so freely. First he 
 made use of the Jews, who came under his 
 special protection, to raise forced loans. These 
 the lenders recouped from the people by usury, 
 and thus the subject indirectly paid the sov- 
 ereign's debts. After the banishment of the 
 Jews in 1290, the situation was not relieved, 
 for the king could still borrow abroad, and 
 parliament, unable to repudiate the royal debts, 
 must make extra grants. At home the king 
 forced his credit upon prelates, towns, and 
 monasteries, giving as security the next grant 
 
 ' 2 Anson, Law and Oust. 287. 
 
 * Stubbs, Ccmst. Hist. § 277; 1 Anson, Law and Cud. 274, 
 275. 
 
186 THE GROWTH OF PARLIAMENT 
 
 in parliament or ecclesiastical convocation. 
 When the lenders later met in council, they 
 must either grant a tax or, what was almost 
 equivalent, release the king. The remedy for 
 the situation was not in increased parliamentary 
 control of taxation, but in restraint of the royal 
 and national expenditure and in control of the 
 executive.' 
 
 The prerogative found another source of 
 income in the custom of purveyance which 
 had come down from the most ancient times. 
 Originally based upon the duty of the country 
 to support the king and his retinue during his 
 progresses, it had been extended and abused 
 by kings who required it for the benefit of others 
 than themselves and upon occasions when they 
 could not legally require it for themselves. 
 Purveyance included the taking of provisions, 
 the compulsory use of horses and carts, and 
 the enforcement of labor for prices set by the 
 purveyor or for nothing at all. The payment, if 
 any, was in tallies, the amount of which was 
 deducted from the purveyee's next tax, so that 
 it really amounted to taking an impost before 
 it was granted. Parliament tried again and 
 again to abolish purveyance, and finally in 
 
 ' Stubbs, Const. Hist. § 278. 
 
THE GROWTH OF PARLIAMENT 187 
 
 1362 succeeded in doing away with it except 
 for the personal use of the king and queen.* 
 
 One other source of income Dr. Stubbs men- 
 tions. This was the system of commissions of 
 arjay, by means of which the king impressed 
 men for mihtary service at the cost of the shires 
 or townships. Sometimes this was made the 
 basis of a tax by commutation. It was en- 
 acted in 1352 that no one not bound by tenure 
 should be compelled to furnish armed men 
 unless by authority of parliament. The statute 
 was confirmed during the reign of Henry IV, 
 but the abuses were not entirely restrained.^ 
 
 WhUe parliament was thus confirming in 
 practice its theoretical right to supremacy in 
 every branch of taxation, an important change 
 was taking place in the manner of granting 
 taxes, which resulted in the best safeguard of 
 its privileges which parliament has in this de- 
 partment. At first the taxes were granted sep- 
 arately, and sometimes in different amounts, by 
 the barons and commons, while the stipend- 
 iary clergy taxed themselves outside of par- 
 liament. From the end of the reign of Richard 
 II, parliamentary taxes were voted by the com- 
 
 ' Stubbs, Cmst. Hid. § 279. 
 =* Ibid. § 280. 
 
188 THE GROWTH OF PARLIAMENT 
 
 mons with the advice and consent of the lords.' 
 Not only did the two houses become as one 
 in their financial relations with the king, thus 
 gaining greater power of resistance to pre- 
 rogative, but the initiative in taxation was also 
 transferred from the king to the commons. 
 Henry IV was forced in 1407 to declare the 
 right of both houses to deliberate apart from 
 the interference of the king upon the amount 
 of a tax, that neither house could report on a 
 grant until both were agreed, and that then the 
 report should be made by the mouth of the 
 speaker of the commons.'' From the demand of 
 the king for a certain sum and the formal consent 
 of his barons, to the determination by the poorer 
 taxpayers of the commons as to the amount 
 which should be given, — that was the won- 
 derful growth, in a nation where habit was 
 almost the strongest moulder of affairs, of only 
 two centuries. 
 
 All this advance of parliament in taxative 
 power carried with it a great mass of legisla- 
 tion, which went of course to strengthen that 
 assembly as a law-making body. But parlia- 
 ment did not confine itseK to matters directly 
 touching taxation; by means of grants of money 
 
 » Stubbs, Const Hist. § 438. ^ Ibid. § 315. 
 
THE GROWTH OF PARLIAMENT 189 
 
 it purchased a share in all sorts of legislation 
 and gradually estabhshed itself as the supreme 
 legislative body. A good illustration of this 
 is found in the proceedings of the year 1340. 
 As the condition of large grants in addition 
 to the generous ones already given for the 
 French war then in progress, parliament pe- 
 titioned for certain reforms, which were ac- 
 cepted by the king and embodied in four stat- 
 utes covering a wide range of legislation. The 
 first of these, besides reform in the tax on wool, 
 secured the abolition of presentment of Eng- 
 lishry, regulated the appointment of sheriffs, 
 dealt with the local courts, limited purveyance, 
 and enlarged the functions of the judges at 
 Nisi Prius, who had succeeded the itinerant 
 justices. The second, already referred to, for- 
 bade the impost of any charge or aid except 
 by the consent of parliament. The third de- 
 clared that the assumption by Edward III of 
 the title of king of France should never bind 
 English subjects to the French crown. The 
 fourth protected the clergy against abuses of 
 royal right.* 
 
 But the parliamentary victory could not be 
 won solely by forcing the king to assent to pe- 
 
 * Stubbs, CmM. Hid. § 257. 
 
190 THE GROWTH OF PAELIAMENT 
 
 titions for specific laws. Several obstacles re- 
 mained in the way of advance, and we must 
 see how these were disposed of. First of all 
 these obstacles was the remnant of legislative 
 power which the crown for a time persisted 
 in keeping. Throughout the history of Eng- 
 land, even from Saxon times, the king had 
 been the law-maker. He had, it is true, usu- 
 ally, if not always, sought the consent of cer- 
 tain of his subjects, and we have seen how this 
 consent ranged from mere formality to some- 
 thing of reality. He had also from time to time 
 asked advice, and sometimes counsel had come 
 unsought; but always he, or his ministers in 
 his behalf, had initiated and enacted the laws. 
 It is not surprising, therefore, that when the 
 theory of consent to legislation had become 
 established, even when that theory demanded 
 that consent be given in a representative as- 
 sembly, ancient custom should sometimes be 
 adhered to by the king in legislation. In a time 
 of transition, confusion is only natural. We 
 find, only five years before the model parUa- 
 ment of 1295, the enactment of so important 
 a statute as the Quia Emptores in an assem- 
 bly composed of the king's immediate coun- 
 cil and the baronage. Edward III held Great 
 
THE GROWTH OF PARLIAMENT 191 
 
 Councils which usurped the functions which 
 then theoretically belonged to parUament.* But 
 such assemblies were rare and presented a 
 small problem compared with the legislative 
 power exercised by the king in his continual 
 council, where were made ordinances of full 
 and equal authority with the statutes made 
 in parhament.^ Here was a practice sub- 
 versive of the principle of 1295 that "that 
 which touches all should be approved by all," ' 
 a practice which continued in spite of the legis- 
 lation of 1322 invahdating ordinances and de- 
 claring that "the matters which are to be 
 estabhshed for the estate of our lord the king 
 and of his heirs, and for the estate of the realm 
 and of the people, shall be treated, accorded, 
 and estabhshed in parliaments by our lord 
 the king, and by the consent of the prelates, 
 earls, and barons, and the commonalty of the 
 realm." * 
 
 As a partial remedy for the situation, par- 
 liament insisted upon a clear distinction being 
 made between statutes and ordinances. A stat- 
 
 ' 2 Anson, Law and Oust. 85. 
 
 2 Stubbs, Const. Hist. § 232. 
 
 » Writ n, Stubbs, Sel. Chart. (8th ed.) 484. 
 
 * Stubbs, Const. Hist. § 254. 
 
192 THE GROWTH OF PARLIAMENT 
 
 ute was an act of the crown, lords, and com- 
 mons, engrossed in the statute roll and re- 
 garded as a permanent addition to the law. 
 It was revocable only by another statute made 
 in parliament. An ordinance, on the other 
 hand, was an act of the king, usually in coun- 
 cil. It was temporary and revocable at any 
 time by the king or the king in council. It 
 was not engrossed, but was issued in the form 
 of .letters patent. This distinction seems to 
 have been well understood after 1354. An 
 irregular assembly of the previous year, vir- 
 tually a Great Council, had made the Ordi- 
 nance of Staples. Remonstrance was at once 
 made, and in the parliament of 1354 it was 
 established, in return for the enactment of the 
 ordinance as a statute, that such matters must 
 henceforth be dealt with by statute.' The 
 crown continued nevertheless to abuse the right 
 to make ordinances, especially in the time of 
 Richard II, who, when petitioned by com- 
 mons in 1390 that the chancellor and council 
 should not after the close of parliament make 
 any ordinance contrary to the common law 
 or ancient custom of the land and to the stat- 
 utes enacted by parliament, evasively replied 
 
 * 1 Anson, Law and Cud. 2H-213. 
 
THE GROWTH OF PARLIAMENT 193 
 
 that what had before been done should be done 
 still, saving the prerogative of the king. This 
 was one grievance which led to Richard's de- 
 position.* Notwithstanding the extreme te- 
 nacity of prerogative, parliament made marked 
 advance against royal legislation, and even 
 though it could not entirely do away with or- 
 dinances, was yet able to limit them. Much 
 was gained in this respect by the change of 
 procedure in parliamentary legislation. 
 
 The early procedure was an even greater 
 obstacle to the growth of parliament than the 
 independent legislation of the king. In the be- 
 ginning statutes were drafted and enacted by 
 the crown, or the crown in councU, on peti- 
 tion of parliament. This petition was usually 
 presented by the commons, which thus gradu- 
 ally came into a position where it could initiate 
 legislation as well as taxation. Before the pe- 
 tition was tendered, the king had probably 
 stated his need of money, so that the grant of 
 taxes, as we have seen, was often made depend- 
 ent upon the king's favorable answer to the 
 petition. But though parUament claimed that 
 grievances should precede supply, the king's 
 promise of redress might be all they could get. 
 
 ' Stubbs, Cond. Hid. § 292. 
 
194 THE GROWTH OF PARLIAMENT 
 
 Even the return of an apparently satisfactory 
 answer often proved of little avail, for it might 
 be ambiguous. Nor was a clear answer always 
 sufficient, for the statute based upon the peti- 
 tion was framed and enacted by the king and 
 councU, usually after the adjournment of par- 
 liament. The crown was thus left with the real 
 key to the situation and often found it conven- 
 ient to forget entirely that there had been either 
 petition or answer. Undoubtedly some statute 
 was usually engrossed, but the wishes of parlia- 
 ment were often defeated by variations, excep- 
 tions, and saving clauses. Even when the statute 
 was enrolled as desired, the king might still re- 
 pudiate it, or at least suspend its operation in 
 whole or in part or grant pardons for its infringe- 
 ment.* 
 
 Parliament naturally used all its efforts to 
 overcome these obstacles. It demanded that 
 the king's answers be in writing and sealed; it 
 made a condition to grants of supply that pe- 
 titions as exhibited be affirmed.* In the year 
 1414 the commons petitioned that no law be 
 made by addition or by diminution which by any 
 
 * 1 Anson, Law and Cust. 15, 16, 18, 214-216; Stubbs, Gmd. 
 Hist. §§ 290,369. 
 ^ 1 Anson, Law and Cust. 216. 
 
THE GROWTH OF PARLIAMENT 195 
 
 manner of terms should change the sentence 
 and the intent asked. Henry V answered that 
 "from henceforth nothing be enacted to the peti- 
 tions of his Comune that be contrarie of their 
 asking, whereby they should be bound without 
 their assent; saving alway to our liege lord his 
 royal prerogative to grant and deny what him 
 lust of their petitions and asking aforesaid." * 
 
 This marked a great step in advance, and 
 reduced the king to the mere right of approval 
 or disapproval, a situation of aflFairs which be- 
 came permanent when, by the end of the reign 
 of Henry VI, it became customary for legisla- 
 tion to be initiated in the form of a bill. Hence- 
 forth legislation purports to be not by " consent" 
 or "at the request of the commons," but "by 
 the authority of parliament." ^ 
 
 The legislative prerogative had now fallen 
 to the power of formal assent or dissent. The 
 king and his subjects had changed places; the 
 one, who had once had the initiative and en- 
 active authority, had parted with it for the 
 empty right of consent which the others had 
 possessed two brief centuries before.' One 
 
 * 1 Anson, Law and Cust. 216; Stubbs, Const. Hist. § 325. 
 " 1 Anson, Law and Cust. 217; Stubbs, Const. Hist. § 290. 
 ^ 1 Anson, Law and Cust. 220. 
 
196 THE GROWTH OF PARLIAMENT 
 
 step only remained before the crown lost even 
 what it then retained; but that lies beyond our 
 inquiry, in the time when the cabinet system 
 made it unwise, and hence practically impos- 
 sible, for the king to veto a bill, and reduced 
 him to a right of assent which is the valueless 
 vestige of one-time supremacy.' 
 
 Parliament was not satisfied merely to have 
 power in taxation and legislation, but also reached 
 out into other departments of national affairs. 
 This was the case in judicial matters. The three 
 common law courts of King's Bench, Exchequer 
 and Common Pleas had been cast off from the 
 Curia Regis and become independent benches 
 during the reign of Henry III,^ and had ab- 
 sorbed all the work of the local popular courts 
 except small cases.' As early as the Articuli 
 Super Cartas of 1300 we see parliament deal- 
 ing with the common law courts and regulating 
 their jurisdiction,* and there was from time 
 to time much legislation concerning the jus- 
 tices of assizes .5 The upper house of parliament 
 became a court of appeal from errors of law in 
 
 * The veto has not been exercised since the early part of the 
 eighteenth century. Stubbs, Const. Hist. § 441. 
 
 * Stubbs, Canst. Hist. § 233. ' Ibid. § 236. 
 
 * Ibid. § 181. 5 Ibid. § 235. 
 
THE GROWTH OF PARLIAMENT 197 
 
 the common law courts, and has remained so to 
 this day. When these courts could not do justice 
 because of the " might on one side and the too 
 great unmight on the other," or because they 
 had no rules of law applicable to the case, the 
 king's extraordinary jurisdiction was invoked 
 by petition to the royal council. It very early 
 became the custom to refer the equitable mat- 
 ters (that is, cases where the rules of common 
 law could afford no remedy) to the chancellor, 
 and before the end of the reign of Edward III 
 that oflScer ceased to follow the person of the 
 king, and the Court of Chancery was formed, 
 as the common law courts had been.* Other 
 extraordinary jurisdiction the council still re- 
 tained and exercised in two ways : (1) by issu- 
 ing special commissions of oyer and terminer, 
 (2) by summoning accused persons before the 
 council. After repeated remonstrances by par- 
 liament, the former was, before the time of 
 Richard II, abandoned. The latter survived 
 and was at times used with salutary effect against 
 powerful offenders whom no jury would have 
 dared to convict, but the system was open to 
 great abuse. Hence parliament repeatedly 
 
 * Dicey, Priv. Court. 13-17; 2 Anson, Law and Cud. 413; 
 Stubbs, Const. Hid. § 234. 
 
198 THE GROWTH OF PARLIAMENT 
 
 tried to transfer the jurisdiction of the council 
 to the common law courts or at least to con- 
 trol the council, but all in vain. The system 
 survived, and caused parUament trouble in 
 succeeding centuries.* Parliament did, how- 
 ever, in the Middle Ages have a general over- 
 sight of judicature, and its claims to regulate 
 the council and to control the choice of jus- 
 tices show growth.* 
 
 So too parliament had won a share in general 
 deliberation concerning national poUcy and 
 matters of peace and war by the middle of the 
 fourteenth century.' It became generally pretty 
 independent of the king, who, while opening 
 and closing the sessions, could not attend de- 
 bates.* The document of the middle of the 
 fourteenth century called Modus Tenendi Par- 
 liamentum, when it spoke of the king's obli- 
 gation to attend the sessions,^ looked backward 
 to a time when the crown was the supreme 
 legislator and forward to the time when parlia- 
 ment, instead of requiring the formaUty of 
 presence, would be so independent as to re- 
 
 * Dicey, Priv. Coun. 69. 
 
 " Stubbs, Const. Hist. § 295; 2 Anson, Zaw and Oust. 19, 20. 
 ' Stubbs, CmM. Hist. §§ 257, 294. 
 
 * Ibid. § 444. 6 stutbg^ sel. Chart. (8th ed.) 510. 
 
THE GROWTH OF PARLIAMENT 199 
 
 sent it. As a further indication of parlia- 
 mentary independence, the theory ran that 
 all petitions must be discussed before the king 
 could prorogue the assembly.* The power of 
 the crown to call and dismiss parUament was 
 also limited by statutes providing that parlia- 
 ments be holden every year once, and more 
 often if need be. As a matter of fact they were 
 frequently intermitted," but parliament was 
 evidently on the road of growth. 
 
 Even more transcendent powers with rela- 
 tion to the crown were assumed by parliament. 
 Edward II was in 1327 declared by the legis- 
 lature to be unfit to reign, while his son was 
 declared worthy and the king was forced to re- 
 sign.' Richard II, after his defeat by Henry 
 of Lancaster, offered to resign. A parliament 
 was called, which, after accepting the resigna- 
 tion and drawing up a recital of Richard's 
 abuses of prerogative, his illegal exactions, and 
 his claim to sole legislative power, formally 
 deposed him.* In 1404 and 1406 parliament 
 passed acts settling the succession to the crown.= 
 
 * Stubbs, Sel. Chart. (8tii ed.) 512, 513. 
 
 * 1 Anson, Law and Oust. 246. 
 » Stubbs, Ccmst. Hist. § 255. 
 
 * Ibid. § 269. « Ibid. § 313. 
 
200 THE GROWTH OP PARLIAMENT 
 
 These were followed by a repeal in 1460, when 
 it was enacted that the crown should go to the 
 Duke of York at the death of Henry VI.* After 
 the duke's usurpation and Henry's return to 
 power in 1470, there was a restorative act of 
 parliament.'' When Edward IV regained the 
 throne soon after, he did not find it necessary 
 to consult parliament about his title, yet Rich- 
 ard III, on assuming the crown in 1483, thought 
 it politic to get his claim confirmed by the legis- 
 lature.' All of these acts of parliament re- 
 presented popular acquiescence in the rising of 
 a new power rather than any definite choice 
 of a new king, but the fact that parliament 
 was repeatedly appealed to as the perfector of 
 a title shows how its authority had increased. 
 
 One other respect in which parliament reached 
 out for power demands consideration. The 
 right to supremacy in the laying of taxes, al- 
 though important, was really only half of the 
 stake in the battle over taxation. Although 
 the people might theoretically say what they 
 would grant and when they would grant it, yet 
 if the king and his ministers were free to spend 
 money as they chose, the demands upon the 
 people which for the national honor they must 
 
 * Stubbs, Const. Hist. § 354. ^ Ibid. § 358. « Ibid. § 361. 
 
THE GROWTH OF PARLIAMENT 201 
 
 meet would be so excessive as to rob their right 
 of much of its value. The solution was some 
 sort of ministerial control by pariiament. This 
 fact was eariy recognized, yet it is strange that 
 the first step in this direction was taken by the 
 king, and stranger yet that those who would most 
 benefit by such control refused to assume it. 
 
 As early as 1237 Henry III, when in great 
 need of money, offered to allow the aid which 
 he desired from the Great Council to be spent 
 by a commission elected by the barons and 
 prelates. He was refused and next offered to 
 dismiss aU his counselors and to accept as ad- 
 visers three nobles named by the barons. Finally 
 it was arranged that three barons be added 
 to the king's council.' This seems to be the 
 first instance of any suggestion of direct con- 
 trol in ministerial action by the people, although 
 the election of ministers had before been at- 
 tempted by the Great CouncU. Pembroke had 
 been so chosen regent at a time when Henry 
 III was too young to make any choice, and in 
 1226, before the king emancipated himself, 
 Ralph Neville had received the chancellorship 
 by the assent and common counsel of the king- 
 dom, upon the understanding that he should 
 
 * Stubbs, Cmst. Hid. § 174. 
 
202 THE GROWTH OF PARLIAMENT 
 
 not be removed except by the same authority. 
 Ten years later Neville refused to resign unless 
 required by the body which had elected him.' 
 
 These precedents were not of the greatest 
 weight, because made during Henry's minor- 
 ity, but they do not stand alone. Other de- 
 mands for the election of ministers were made 
 in succeeding years. Thus, in 1244, the Great 
 Council proposed the appointment by that body 
 of the justiciar, treasurer, and chancellor as the 
 condition of a grant, but the suggestion came 
 to nothing.^ An elective ministry was demanded 
 and refused repeatedly during Henry's remain- 
 ing years. It was a feature of the Provisions 
 of Oxford, but was omitted from the reenact- 
 ment in the Statute of Marlborough.' In 1310 
 a Great Council forced upon Edward II an 
 elected commission, called the Ordainers, by 
 which his authority was superseded untU 1322. 
 These Ordainers provided for the filling of 
 the great offices *of state by the king, with the 
 counsel and consent of the baronage. The min- 
 isters were to be bound by oaths in parliament, 
 and proper persons were to be named to hear 
 complaints against the king's officers. The re- 
 
 ' Stubbs, Const. Hist. § 171. 
 
 Mbid. §175. » Ibid. §§ 176, 177. 
 
THE GROWTH OF PARLIAMENT 203 
 
 form was not permanent, for the commons, 
 except in hearing the oaths, had no share in 
 the matter.* Indeed, election of ministers was 
 not the manner by which parliament was to 
 get control of the executive, although it did 
 not cease its attempts in this direction. 
 
 The year 1341 found Edward III in finan- 
 cial difficulties which forced him to grant and 
 seal a statute requiring the chancellor, judges, 
 and other great officers to be named by the 
 king in parhament and there sworn, but Ed- 
 ward immediately revoked it in council and 
 got the next parliament to repeal it.'' A similar 
 demand was made in 1371 as to the greater 
 officers.' An ordinance of 1377 provided that 
 during the minority of Richard II the great 
 officers of state should be chosen in parliament, 
 a concession which was the condition of a grant 
 for the French war.^ In 1381 parliament se- 
 cured the resignation of the chancellor and 
 the appointment of a new one.^ Four years 
 later, however, Richard refused to name his 
 intended ministers in parliament," and it is 
 
 » Stabbs, Canst. Hid. § 251. * Ibid. §§ 258, 259. 
 
 * 2 Anson, Law and Oust. 18, 19. 
 
 * Stubbs, Const. Hist. § 263. « Ibid. § 264. 
 " 2 Anson, Law and Cust. 19. 
 
204 THE GROWTH OF PARLIAMENT 
 
 doubtful if the ordinance passed for his minor- 
 ity ever amounted to more than formal nomina- 
 tion by the king in parliament and unques- 
 tioning acceptance by that body.* Meanwhile 
 the council had become a power coordinate 
 with the king, necessary to the transaction of 
 all the business which he did and acting often 
 as a check upon him. To the demand for nomi- 
 nation of ministers in parliament, the com- 
 mons now added a similar requirement as to 
 the members of the council. During the mi- 
 nority of Henry VI this ideal was temporarily 
 realized, but when that king became of age, the 
 council ceased to be named in parliament and 
 the commons no longer strove in this manner 
 to control it.' 
 
 The attempt to control the election of min- 
 isters was no more efficacious than the require- 
 ment of oaths in parliament, yet it was, as Sir 
 William Anson remarks, "a curious antici- 
 pation of modern practice." What parliament 
 tried to do directly in the fifteenth century, it 
 came to do indirectly under the cabinet system 
 three hundred years later. "The modern par- 
 
 * Stubbs, Const. Hist. § 286. 
 
 ^ Stubbs, Const. Hist. § 367; 2 Anson, Law and Cust. 20, 
 81. 
 
THE GROWTH OF PAELIAMENT 206 
 
 liament is content with the power of making 
 it impossible for the crown to employ others than 
 those whom parliament favours for the time." ' 
 Another method of ministerial control was 
 used with some slight success very often in the 
 fourteenth century, and that was the appro- 
 priation of grants of money to particular uses.* 
 This carried with it from time to time the bring- 
 ing of the accounts into parliament, and there 
 grew up a custom of audit which did much to 
 put the ministry under parliamentary control. 
 It was an important provision of the statute of 
 1341, already referred to, that commissioners 
 be elected in parhament to audit the accounts 
 of the officers who had received money for the 
 king.' In the Good Parhament of 1376 an audit 
 was demanded by the speaker,* and in the last 
 parhament of Edward III in 1377 the com- 
 mons petitioned for the appointment of two 
 earls and two barons as treasurers to secure 
 the proper expenditure of the subsidy granted. 
 Later in the same year the first parliament of 
 Richard II secured the appointment of two 
 treasurers to spend the money then granted, 
 
 ^ 1 Anson, Law and Cud. 17. 
 
 ^ Stubbs, Cond. Hist. § 287. 
 
 3 Ibid. § 258. * Ibid. § 262. 
 
206 TIDE GROWTH OF PARLIAMENT 
 
 but John of Gaunt took the subsidy out of their 
 hands. The next parUament, however, forced 
 the account of the subsidy to be shown, and 
 in 1379, the king being still in sore straits con- 
 ceded that a committee of retrenchment be 
 elected.* The commons objected in 1406 to 
 making a grant before the account of the last 
 subsidy was audited. Henry IV replied, "Kings 
 do not render accounts," but in 1407 he vol- 
 untarily laid them before parliament. The 
 right of audit was never again formally con- 
 tested by the crown.^ 
 
 The audit was the strongest influence which 
 parliament could in the Middle Ages bring to 
 bear upon the ministers, because it was sup- 
 plemented by the right of impeachment. This 
 was first exercised by the Good Parliament 
 of 1376, which took advantage of Edward's 
 dire need for supply for the French war to 
 represent that the country was impoverished 
 by the counselors of the king, and that if the 
 king would do justice to the offenders he should 
 have sufficient money. Charges against Lati- 
 mer, the king's chamberlain, and Lyons, his 
 agent with the merchants, were made by the 
 commons and sustained at the bar of the lords. 
 
 ' Stubbs, Const. Hist. § 263. = u,jj § 371, 
 
THE GROWTH OF PARLIAMENT 207 
 
 The ministers, and with them some other of- 
 fenders, were condemned to imprisonment and 
 forfeiture, but were restored after parUament 
 was dismissed by John of Gaunt.' 
 
 Just ten years later came the second im- 
 peachment, that of Michael de la Pole, the 
 chancellor, for alleged maladministration. This 
 too was secured because parliament refused 
 otherwise to grant money. Another condition 
 of the grant then made was the appointment 
 of a council of reform to regulate the royal 
 household and the realm. Richard II had to 
 consent, but immediately induced five of the 
 justices to declare that parliament had no right 
 to remove his servants and that the commis- 
 sion was unlawful as contrary to prerogative. 
 War followed, Richard was forced to submit, 
 and in the next parUament, held in 1388, the 
 justices themselves fell under the third im- 
 peachment." When Richard declared himself 
 of age in 1389, he asserted his right to choose 
 his own ministers, and did in fact replace a 
 number, but the effect of the impeachments 
 was seen when in 1390 the chancellor, treas- 
 urer, and councilors resigned and offered them- 
 
 » Stubbs, Canst. Hist. §§ 262, 263. 
 " Ibid. § 266. 
 
208 THE GROWTH OF PARLIAMENT 
 
 selves for censure to parliament, which, finding 
 no fault with them, allowed them to retain their 
 offices.* Although politics and personal dishkes 
 played a large part in the history of impeach- 
 ment, the ministers learned that, if parliament 
 were alive to its power, they had somebody 
 besides the king to reckon with, and that the 
 people had in their hands a sanction by which 
 they could enforce faithfulness in office. 
 
 We have in this chapter traced a very great 
 growth in parliament as a body which was not 
 confining its activity to its own department of 
 taxation and legislation, but was growing as 
 well in deliberative powers and in control of 
 the judiciary and executive. We have seen 
 an assembly which was fast becoming, as the 
 representative of the people, the real sovereign 
 of the realm, supreme in aU departments. What 
 of the share of the landed man in this ? It must 
 be confessed that there was next to nothing 
 in all this remarkable constitutional develop- 
 ment of the fourteenth and fifteenth centuries 
 which was done by the landed man as such. 
 That incentive which taxation had afforded 
 him to assert rights against the king had ap- 
 parently passed away with the transfer of the 
 
 ' Stubbs, Crnist. Hist. § 267. 
 
THE GROWTH OF PARLIAMENT 209 
 
 great burden of taxation from land to chattels 
 and from direct taxes to customs. And yet 
 the men who were most influential in the na- 
 tion continued to be the great landowners, 
 partly because the feudal system was not en- 
 tirely decayed, partly because the inertia of 
 custom kept in their hands the power which 
 their special interests had before won for them, 
 and yet more because of the control which as 
 landlords they could still exercise over . their 
 tenants. Although the incidence of taxation 
 changed, we have again and again had occa- 
 sion to see how the granting of money con- 
 tinued to be the pivot of almost every conflict 
 between crown and parhament. Perhaps, after 
 all, the landed man had more at stake in the 
 matter of indirect taxation than his fellow men. 
 It was not the merchants upon whom the sub- 
 sidies fell, but the consumer. Roughly speak- 
 ing, the wealthier a man the more he would 
 consume and the heavier the charge he must 
 bear. The great wealth of the nation was still 
 in land, despite the large increase in trade. 
 Hence it may be argued that the large land- 
 owners continued to be the class upon which 
 the bulk of the final burden of taxation fell. 
 Of course the burden might rest far more easily 
 
210 THE GROWTH OF PARLIAMENT 
 
 upon their shoulders than upon those of the 
 poor, but such had been the case when direct 
 taxes only were employed. So practically the 
 position of the landed man as the one most 
 largely interested in the matter of taxation had 
 changed but little. 
 
 The apparent change, however, deprives 
 us of the clear point of contact between the 
 landed man acting in the interest of his land 
 and the advance of liberty which we have here- 
 tofore been able sometimes to indicate. We 
 cannot therefore say that this movement or that 
 was inaugurated to protect the enjoyment of 
 landed rights, but we can say that the landed 
 man was continually shaping and controlling 
 the growth of the Middle Ages, even though 
 his motive may not have been the protection 
 of his land. This will be clearly seen if we ex- 
 amine the matter of qualifications for mem- 
 bership in parliament and for the exercise of 
 the elective franchise. 
 
 Of the upper house of parliament there can 
 be little question, for the lords were distinct- 
 ively a body of large landowners. They were 
 the barons and church dignitaries who had 
 long had the right to attend the Great Council. 
 Tenure was the original basis of the right of 
 
THE GROWTH OF PARLIAMENT 211 
 
 membersliip in the upper brancli, and sum- 
 mons early became added. Then the right to 
 be summoned became hereditary and passed 
 from father to son as the land did. Sometimes 
 it may have happened that men without the 
 large territorial holding called a barony were 
 summoned and transmitted membership to 
 their descendants, but it cannot be doubted 
 that with few exceptions the lords, both lay and 
 spiritual, had very large landed estates.' It 
 was the barons who, in the time of which we 
 have been treating, took the lead in the con- 
 stitutional struggle. Aside from the influence 
 which they had as landlords, their superior 
 wealth and social position had made them men 
 of greater culture and business aptitude than 
 their fellows. Besides this, they realized their 
 position and felt the responsibility which it 
 laid upon them, while the people on their part 
 looked to them as leaders.^ 
 
 Since the leaders were landed men, it seems 
 hardly necessary to consider the standing of 
 the followers, but among them, too, we shall 
 find a preponderance of landowners; hence it 
 will be well to carry our investigation further. 
 
 » Stubbs, Const. Hist. §§ 190, 201. 
 
 * Stubbs, Crnist. Hist. § 475; 1 Anson, Law and Ctist. 16. 
 
212 THE GROWTH OF PARLIAMENT 
 
 The represented clergy were for the most part 
 men whose only substance was in the tithes 
 which came to them. As landed men they 
 therefore had no importance, but on the other 
 hand they early ceased to have any influence 
 in parliament, preferring to have no more to 
 do with national affairs than by their repre- 
 sentatives in convocation to grant taxes for 
 themselves. We are therefore obliged to con- 
 sider only the commons, the representatives 
 of shire and borough, and here we meet ques- 
 tions of considerable obscurity. The two classes 
 of representatives will best be taken up sepa- 
 rately and approached through the medium of 
 the men who elected them. 
 
 We have no absolute knowledge as to who 
 were the electors of the knights of the shire 
 in the fourteenth century. Looking back to 
 the previous century, however, we find evi- 
 dence that elections were held in the full county 
 court, and such must have continued the the- 
 ory, for in 1406 a statute was enacted requir- 
 ing knights henceforth to be elected, as before, 
 by the free choice of the county court, notwith- 
 standing any letters or any pressure from with- 
 out.* The purity of county elections had been 
 
 ' Stubbs, Const. Hist. § 313. 
 
THE GROWTH OF PARLIAMENT 213 
 
 assailed, possibly by the return by tbe sheriff 
 of knights without election.' Such abuses were 
 the basis of a petition in 1376 that the knights 
 of the shire be chosen by common election from 
 the better folk of the shires, and not merely 
 nominated by the sheriff without due election.'' 
 So undoubtedly the theory, despite abuses, 
 was that the full county court should be elect- 
 ors. There is some doubt whether the smaller 
 freeholders exercised their franchise in the 
 earUest times. Later it seems certain that as 
 a practical matter the county elections were 
 controlled by the great landlords of the shire. 
 The mesne tenants were much under their in- 
 fluence when they attended the court, and often 
 they stayed away altogether.' If any unlanded 
 men attended, and it is doubtful if any did, 
 they too must have had little independent in- 
 fluence. The knights whom the county elected 
 could not therefore fail to be men who them- 
 selves had a great deal of land or were in sym- 
 pathy with landed interests." The preponder- 
 ant influence of landed men was well illustrated 
 
 1 Stubbs, Cmst. Hid. § 296. 
 
 2 Ibid. § 262. ' Ibid. § 217. 
 
 * After 1445, no knight could be rehirned unless he had land 
 of annual value of £20. 
 
214 THE GROWTH OF PARLIAMENT 
 
 by the refusal of parliament in 1381 to approve 
 the promise made by Richard II that villeinage 
 should be abohshed.' The great landlords were 
 determined to keep the upper hand. This jeal- 
 ousy of their influence extended even to the de- 
 sire to keep others from gaining the power which 
 accompanied land, for in 1391 parhament peti- 
 tioned the king to forbid villeins to advance 
 themselves and their descendants by acquiring 
 land or educating their children. Fortunately 
 the petition was denied.^ Finally, in 1430, the 
 county franchise was by statute definitely con- 
 fined to freeholders of 405. income. That this 
 limitation of the electorate to landowners did 
 not, as a practical matter, disfranchise anybody 
 of any influence is proved by the fact that the 
 complexion of the knights returned was not 
 changed. Probably indeed only landowners had 
 voted before." 
 
 The borough franchise and the borough 
 representatives, it is likely, were scarcely less 
 under the control of landed interests. In the 
 matter of the franchise, however, there is much 
 obscurity, for there was no uniform type of 
 borough. The town meeting was formed upon 
 
 1 Stubbs, Const. Hist. § 264. 
 
 2 Ibid. § 267. « Ibid. § 335. 
 
THE GROWTH OF PARLIAMENT 215 
 
 several different plans. In one place it included 
 all of the householders, in another all who paid 
 "scot and lot" (a contribution or rate for local 
 and national purposes), in another those who 
 held by burgage tenure, in still another the 
 members of the merchant or trade guilds. 
 Sometimes the election was not in town meet- 
 ing, but by the municipal government.* The 
 ancient basis was undoubtedly tenure, and a 
 large proportion of the electors always contin- 
 ued to claim their franchise under some sort 
 of real-estate holding. The better men would 
 undoubtedly usually be elected, and if they 
 were "better" according to the old tradition, 
 they would be freeholders. In any event, the 
 landed men very likely predominated with very 
 few exceptions during the Middle Ages over 
 the electorate and the representatives of the 
 boroughs. The petitions of the Good Parlia- 
 ment in 1376 for the enforcement of the Statute 
 of Laborers limiting wages, for the restriction 
 of the right of common in towns, for the lim- 
 itation of the powers of chartered crafts, may 
 prove either or both of two propositions: (1) 
 that the burghers were less powerful than the 
 landed men in parliament, (2) that the landed 
 
 * Stubbs, Canst. Hist. § 212. 
 
216 THE GROWTH OF PARLIAMENT 
 
 men overshadowed the burghers at home.' 
 The whole parHamentary organization of the 
 Middle Ages was in the control of the landed 
 man, who therefore must be accounted a prime 
 factor in all the constitutional growth which 
 we have been reviewing. 
 
 Another argument, although more briefly 
 stated, is of still more importance. History, 
 we must always remember, is the record of 
 development, the sequence of cause and effect. 
 One stage of the growth of English liberty we 
 have been studying in this chapter, and so far 
 we have sought its explanation only in the in- 
 fluence of contemporary landed men. Great 
 as this influence undoubtedly was, we might 
 almost disregard it and depend for the strength 
 of our argument upon a cause more remote 
 but no less potent. The developments of the 
 Middle Ages were the resultants of all that 
 had gone before, and particularly of the prin- 
 ciple of representation in taxation which the 
 landed man had established for the protection 
 of his real property. It mattered not at all, so 
 firmly was that principle grounded by its au- 
 thors, that the incidence of taxation to a con- 
 siderable extent changed. A rule so broad in 
 
 * Stubbs, Const. Hist. § 262. 
 
THE GROWTH OF PARLIAMENT 817 
 
 theory must find the broadest application. 
 Hence, because landed men in the interests 
 of their land had raised a cry of "no taxation 
 without representation," the merchants and 
 burgesses of the Middle Ages enjoyed, as a 
 matter of course, the similar right as to per- 
 sonal property and indirect taxation. Even 
 had the balance of power in the Middle Ages 
 passed from the landowners to their humbler 
 brethren, the landed man would still have been 
 the chief cause of the effects which we have 
 lately been tracing. Let it be borne in mind, 
 now and throughout the later discussion, that 
 contemporary causes, while important, are 
 really secondary to the first cause of earlier 
 times, — the landed man acting in the inter- 
 ests of his land. 
 
VIII 
 
 THE FINAIi STRUGGLE FOR LIBERTY 
 
 The Middle Ages saw parliament coming into 
 a supremacy which seemed almost won, but in 
 consequence of internal dissension the final 
 victory was deferred for two hundred years. 
 Just as the constitutional rule of the Lancas- 
 trian kings began to give promise that popular 
 rights were becoming fixed, the Wars of the 
 Roses disturbed the growing security of lib- 
 erty. The Yorkist kings tended to the exer- 
 cise of arbitrary power, and even had they not, 
 the progress of civil war would alone have been 
 sufficient to interrupt the rule of constitutional 
 principles. The Tudor monarchs did indeed 
 restore the constitutional forms, yet their reigns 
 were in fact those of absolute sovereigns. 
 
 The general temper of the subjects of the 
 Tudors was that of men who had lost not so 
 much their high ideals of liberty, as the en- 
 ergy to enforce their rights. They were satis- 
 fied with the formal recognition of sorely won 
 franchises, and regularly exercised them in 
 
THE FINAL STRUGGLE FOR LIBERTY 219 
 
 subservience to the wishes of the crown. This 
 indifference was the result of the exhaustion 
 in which the Wars of the Roses had left the 
 people. The feudal nobUity having been broken 
 to pieces and their ranks sadly depleted by the 
 sword of war and the axe of execution,' the 
 commons were deprived of their long-time 
 leaders. Unable by themselves to rise in re- 
 sistance to prerogative, all that they desired 
 was to be left alone to pursue the arts of peace; 
 hence they were quite ready to uphold the 
 skilful administrative hands of the Tudors. 
 The church was thus the only power left to 
 oppose the crown, and the reformation soon 
 turned all its great influence to the support 
 of the king who became its new head.'' It was 
 not until the increase of commerce and the 
 great prosperity which followed new discov- 
 eries had enabled the middle classes to be- 
 come rich and acquire land, until they and the 
 older landed gentry grew to have an inde- 
 pendent spirit which raised new leaders, and 
 until the intellectual impulse of printing and 
 the Reformation had aroused the nation at 
 large to a fresh realization of the value of lib- 
 
 • Dicey, Priv. Coun. 77, 78. 
 
 " Dicey, Priv. Coun. 79, 86, 87; 1 Anson, Law and Oust. 20. 
 
220 THE FINAL STRUGGLE FOR LIBERTY 
 
 erty, — it was not until then that the subject 
 was again able to claim for his own benefit the 
 liberties the Tudors had kept only formally 
 alive. 
 
 The way in which the Tudors controlled 
 every branch of the government and made all 
 popular influences subservient must be seen 
 in order that we may fully realize the scope 
 of the reaction for liberty in Stuart times. In 
 legislation the Tudors resorted to parliament in 
 many important matters, and indeed might 
 have done so with safety in all, for the legis- 
 lature always obediently passed the measures 
 which the crown proposed. But it was found 
 convenient for the king in council to issue 
 independently proclamations which had the 
 force of statutory law. This form of legislation 
 was used more frequently and sweepingly than 
 its long-disused progenitor, the ordinance. By 
 it were created new laws, new criminal offenses, 
 and new punishments, which found rigorous 
 enforcement in the Star Chamber. Parhament 
 became sponsor for this system by enacting 
 in 1539 that such proclamations " should be ob- 
 served and kept as though they were made by 
 an act of parliament." A repeal of the Statute of 
 Proclamations in the first year of Edward VI 
 
THE FINAL STRUGGLE FOR LIBERTY 221 
 
 made no real change, for although the courts 
 under Mary declared that proclamations could 
 not impose any new fine, forfeiture, or impris- 
 onment, nor make a new law, both Mary and 
 Elizabeth continued the evil.* 
 
 In the raising of taxes the crown in Tudor 
 times was equally independent of parliament. 
 Henry VII was so successful in his unconsti- 
 tutional exactions that during the last seven 
 years of his reign he had to call parliament but 
 once. One of his great sources of income was 
 the "benevolence." In 1473 Edward IV had 
 instituted this impost by calling for "freewill 
 offerings" from subjects who were unable to 
 refuse to be benevolent. The parliament of 
 Richard III attempted in 1484 to stop this 
 abuse by a statute forbidding the exaction, 
 but within a few months Henry VII succeeded 
 to the throne and restored the tax.'' Another 
 Tudor exaction was the "loan," which was 
 repeatedly required. One instance of this will 
 suflaciently illustrate its nature. In 1588 Eliza- 
 beth and the Privy Council ordered the Lords 
 
 1 1 Anson, Law and Oust. 260, 261; Dicey, Priv. Coun. 92, 
 
 93. 
 
 => Stubbs, Const. Hist. §§ 359, 361, 373; Gneist, Eng. Pari. 
 
 199. 
 
222 THE FINAL STRUGGLE FOR LIBERTY 
 
 Lieutenant of the counties to return lists of 
 such men as could afford to loan sums of ,£25 
 and more to the crown, the amounts for which 
 each could be held to be reported. On the 
 basis of these returns requisitions under the 
 privy seal were sent to individuals, and re- 
 fusal to pay put one at the mercy of the Star 
 Chamber.' 
 
 Nor were benevolences and forced loans the 
 sole means by which the Tudors showed their 
 absolutism in taxation. Parliament allowed 
 Henry VIII to take more subsidies than all 
 his predecessors had raised.'' Under Mary 
 and Elizabeth not only did it readily grant when 
 asked; it permitted the crown to deal with 
 the customs without even asking its leave. After 
 the regular granting of tunnage and poundage 
 began in 1373, there was no demand by the 
 sovereign for customs in addition for over 
 one hundred and fifty years. Then Mary laid 
 a duty on cloths exported and French wines 
 imported without parliamentary consent. Eliza- 
 beth took an impost on sweet wines through- 
 
 * See for the letter of the council and requisition, Prothero, 
 Select Statides and Other ConBtUvtimiaL Documents lUudraiive 
 of the Reigns of Elizabeth and James I (2d ed.) 134-137. 
 
 ^ Gneist, Eng. Pari. 199. 
 
THE FINAL STRUGGLE FOR LIBERTY 223 
 
 out her reign and there was never a pro- 
 test.* 
 
 The crown was also absolute in the de- 
 partment of administration. The judges were 
 subservient, parliament was subservient, the 
 oflScers of state and the Privy Council were 
 subservient. Only now and then did parlia- 
 ment make any complaint of fiscal and other 
 ministerial abuses.'' Impeachment was never 
 resorted to. The council, no longer composed 
 of men of high nobiUty and great landed wealth, 
 was a tool of the crown." Such a body could 
 readily be used for oppression in public busi- 
 ness, but it was in its judicial phase, as the 
 Court of Star Chamber, that the Privy Coun- 
 cil became the most effective instrument of 
 the king. In this court was exercised aU the 
 indefinite residual jurisdiction of the crown. 
 At first its action was beneficent in that it gave 
 cheap and ready redress to the poor against 
 the rich, but it soon degenerated into a tribunal 
 for the enforcement of proclamations, for 
 the punishment of political offenders, for the 
 
 1 1 Anson, Law and CvM. 274, 275; Prottero. Sd. Stai. (2d 
 ed.) Ixxiii. 
 
 '^ Gneist, Eng. Pari. 200. 
 
 ' Dicey, Priv. Coun. 85; 1 Anson, Law and Cud. 20, 21; 2 
 Ibid. 23. 
 
224 THE FINAL STRUGGLE FOR LIBERTY 
 
 restraint of free speech. "No rank was ex- 
 alted enough to defy its attacks, no insignifi- 
 cance sufficiently obscure to escape its notice." • 
 It tried everything from petty police matters 
 up to libel, from alleged seditious speeches 
 and writings down to private family and neigh- 
 borhood quarrels.'' It interfered with com- 
 mon law causes pending by arbitrarily im- 
 prisoning suitors and officers of the law.' Its 
 process was terrible. On a charge based upon 
 hearsay or secret information, the offender 
 might be privately accused, arrested, and ar- 
 raigned. Without being confronted with his 
 accuser or being sufficiently informed of the 
 nature of the offense, he might be pressed, even 
 tortured, to confess. A confession led to im- 
 mediate sentence, while a refusal to answer 
 brought imprisonment until more formal pro- 
 ceedings could be had. These were begun by 
 a bill of complaint addressed to the council 
 and signed by a councilor, after which subpoena 
 issued. Upon his arraignment the prisoner 
 was put upon oath and asked to answer the 
 
 ^ Dicey, Priv. Court. 95. 
 ^ Ibid. 105-112. 
 
 ' See the complaint of the judges in 1591, Prothero, Sd. Stat. 
 (2d ed.) 446. 
 
THE FINAL STRUGGLE FOR LIBERTY 225 
 
 bill. If he refused, lie was summarily com- 
 mitted. If he answered, he was then examined 
 by the plaintiff upon written interrogatories, 
 and indefinite imprisonment was the penalty 
 of a refusal to reply to any of them. After the 
 prisoner had completed his answers, witnesses 
 for the plaintiff were privately examined, and 
 then the council (when in judicial session 
 called the Court of Star Chamber) gave sen- 
 tence of fine, imprisonment, pillory, loss of 
 ears, whipping, or anything else short of death. ^ 
 That a people by whom free institutions 
 had so long ago and in so large a measure been 
 won should for many years endure such ar- 
 bitrary assumptions on the part of the crown 
 proves the utter subservience into which they 
 had fallen from mere exhaustion after the Wars 
 of the Roses, and in which they were kept by 
 the manipulations of the sovereign. The veto 
 was not much used by the Tudors, because 
 they packed their parhaments and kept the 
 upper hand over them.* A favorite method 
 of doing this was to enfranchise new boroughs. 
 Edward VI added 22 members to the commons, 
 Mary 14, EUzabeth 62; and thus a strong court 
 
 ' Dicey, Priv. Caun. 102-105. 
 * 1 Anson, Law and Cud. 254. 
 
236 THE FINAL STRUGGLE FOR LIBERTY 
 
 party was maintained in parliament. When 
 this was thought not to be needful, there re- 
 mained the constant source of control obtained 
 by recommending or commanding the sherifiFs 
 or electors to make returns of certain people.' 
 Thus, in the seventh year of Edward VI the 
 sheriff was enjoined to return certain persons 
 pointed out by the king. The writs of the sec- 
 ond year of Mary called for " men of the wise, 
 serious, catholic sort." Elizabeth secured the. 
 election to parliament of many court officials 
 and other dependants.' 
 
 In spite of the general subservience of the 
 commons, there were occasional sparks of 
 hope in the tenacity with which they claimed 
 certain privileges for the house. A contested 
 election in 1586 was decided by the Lord Chan- 
 cellor and the judges, but commons refused 
 to accept the decision and itself investigated 
 the returns. Its conclusions were the same 
 as those of the other tribunal, but were ex- 
 
 ' 1 Anson, Law and Oust. 284, 285. 
 
 '' Gneist, Eng. Pari. 196. Elizabeth and the council in 1670 
 appointed Archbishop Parker and Lord Cobham to confer with 
 the sheriff of Kent, the ofiScers of boroughs, and other leading 
 men for the seemingly virtuous purpose of securing that "the 
 persons to be dbiosen may be well qualified." Prothero, Sd. 
 Stat. (2d ed.) 441. 
 
THE FINAL STRUGGLE FOR LIBERTY 827 
 
 pressed to be "not out of any respect the said 
 House had or gave to the resolution of the 
 Lord Chancellor and Judges therein passed, 
 but merely by reason of the resolution of the 
 House itself, by which the said election had 
 been approved." It was also resolved that 
 "there should no message be sent to the Lord 
 Chancellor, not so much as to know what he 
 had done therein, because it was conceived 
 to be a matter derogatory to the power and 
 privilege of the said House." » Late in Eliza- 
 beth's reign, however, we find the Privy Coun- 
 cilors in the commons and thirty other mem- 
 bers canvassing and reporting contested elec- 
 tions, so that the privilege of the house to judge 
 the returns and qualifications of its own mem- 
 bers was not perfectly freed of crown inter- 
 ference.^ 
 
 About the privilege of free speech in parlia- 
 ment there was much difference between Eliza- 
 beth and the commons. In 1566 the queen 
 ordered the commons to cease the discussion 
 of her marriage. This aroused a remonstrance, 
 and Elizabeth withdrew her command.' Yet 
 in 1571 she enjoined parliament not to meddle 
 
 * Prothero, Set. SUd. (2d ed.) ISO. 
 ' Ibid. 118. ^ Ibid. 118. 
 
228 THE FINAL STRUGGLE FOR LIBERTY 
 
 with matters of state except such as were pro- 
 pounded to them. The commons fared better 
 when in the same year Mr. Strickland was 
 forbidden by the crown to attend parliament 
 because he had oflFered a bill against the pre- 
 rogative of the crown. A remonstrance that 
 the accused ought to be made to appear and 
 answer for his offense (if any) at the bar of 
 the house caused the removal of the inhibition.* 
 Only five years later Peter Wentworth in a 
 speech in the commons made the astounding 
 proposition that the queen was under the law, 
 that a part of the law was freedom of speech 
 in parliament, and hence that the queen had 
 no right to repress it. Elizabeth's reply was 
 the commitment of Wentworth to the Tower.^ 
 A similar speech by the same offender in 1587 
 was punished in the same manner. 
 
 From the year 1541 the speaker at the open- 
 ing of the session regularly claimed for the 
 members of the house freedom of discussion, 
 free access to the person of the sovereign, and 
 freedom from civil arrest.* The commons 
 soon began to try its own members when charged 
 
 * Prothero, Sd. SM. (2d ed.) 119. 
 
 => Ibid. 121, 122. » Ibid. 123, 124. 
 
 * For a sample of such claim, see Ibid. 117. 
 
THE FINAL STRUGGLE FOR LIBERTY 229 
 
 with an offense, yet Elizabeth often impris- 
 oned members arbitrarily.' The crown never 
 fully acceded to the speaker's claims and al- 
 most always denied them flatly. Parliament, 
 in the view of the Tudor kings, had no power 
 of initiative in taxation and legislation, and 
 could do no more than answer yes or no to the 
 crown's propositions. Commoners who too 
 freely claimed larger privileges were summoned 
 before the council, committed to prison, and 
 forbidden to attend until further notice." The 
 kingly position cannot more clearly be ex- 
 pressed than in the words of Elizabeth, who 
 in 1593 replied to the customary demands for 
 privileges, "Privilege of speech is granted, but 
 you must know what privilege you have; not 
 to speak every one what he listeth, or what 
 Cometh in his brain to utter that; but your 
 privilege is aye or no." » 
 
 The whole matter of the prerogative was 
 a vexed question. Not only was there, as to 
 
 * Gneist, Eng. Pari. 201, 202. 
 
 ' 1 Anson, Law and Oust. 140. 
 
 ' Prothero, Sel. Stat. (2d ed.) 124, 125. How littie real free- 
 dom of speech was possible in England is shown by the fact that 
 during Elizabeth's reign at least ten statutes were enacted touch- 
 ing treason and seditious words, while the council passed sev- 
 eral Star Chamber ordinances for censorship of the press. 
 
230 THE FINAL STRUGGLE FOR LIBERTY 
 
 where the prerogative began and where it 
 ended, a doubt which was more and more 
 bringing the crown and parliament into dis- 
 pute, but there was also on the part of the sov- 
 ereign a continuous insistence that, whatever 
 its bounds, prerogative was not to be discussed 
 by the legislature. Even in the commons there 
 was a serious division of opinion as to the ex- 
 tent to which parliament might go in the mat- 
 ter of checking the crown. In 1601 there was 
 an earnest debate in the commons as to whether 
 parhament could by statute restrict the trade 
 monopolies which Elizabeth had granted her 
 favorites. Sir Francis Bacon said that such 
 legislation was unconstitutional and that the 
 only remedy was petition and grant by the 
 queen. Parliament did not have to test its 
 rights, however, as Elizabeth became some- 
 what alarmed and promised to withdraw all 
 patents of monopolies not for the good of the 
 people.* 
 
 From the foregoing bare outline something 
 of the serious problem before the lovers of lib- 
 erty at the opening of the seventeenth cen- 
 tury must be apparent. But we have not yet, 
 perhaps, seen how deep seated in the mind 
 
 ' ProUiero, Sd. Stat. (2d ed.) 116. 
 
THE FINAL STRUGGLE FOR LIBERTY 231 
 
 of royalty the notion of prerogative had be- 
 come. Since the Reformation had brought 
 the church under the domination of the king 
 there had grown up under the teaching of 
 ecclesiastics that theory of divine right which 
 made prerogative not merely a pohtical right, 
 but also a sacred attribute which it were al- 
 most blasphemy to question. This theory found 
 in the Stuarts most vigorous adherents, and 
 the problem of prerogative grew in gravity. 
 Fortunately for our hberties, the increase in 
 the claims of royalty was met by a larger claim 
 from the subject for political rights and a per- 
 sistent denial on the part of the new sects of 
 Puritans and Non-Conformists of the assump- 
 tion by royalty of quasi-divinity. The words 
 of James I himself will serve to bring before 
 our minds the real fashion of the new garment 
 which prerogative had assumed. 
 
 "Kings are not only God's lieutenants upon 
 earth and sit upon God's throne, but even by 
 God himself they are called gods. ... As to 
 dispute what God may do is blasphemy, . . . 
 so is it sedition in subjects to dispute what a 
 king may do in the height of his power. . . . 
 I will not be content that my power be dis- 
 puted upon. . . . Do not meddle with the 
 
232 THE FINAL STRUGGLE FOR LIBERTY 
 
 main points of government: that is my craft: 
 ... I must not be taught my office. I would 
 not have you meddle with such ancient rights 
 of mine as I have received from my predeces- 
 sors. . . . All novelties are dangerous." * And 
 to the judges James said: "First, encroach 
 not upon the prerogative of the crown. . . . 
 That which concerns the mystery of the king's 
 power is not lawful to be disputed; for that is 
 to wade into the weakness of princes, and to 
 take away the mystical reverence that belongs 
 unto them that sit in the throne of God. Sec- 
 ondly, that you keep yourselves within your 
 own benches. ... As for the absolute pre- 
 rogative of the crown, that is no subject for the 
 tongue of a lawyer, nor is lawful to be disputed. 
 It is atheism and blasphemy to dispute what 
 God can do: good Christians content them- 
 selves with his will revealed in his word, so 
 it is presumption and high contempt in a sub- 
 ject to dispute what a king can do, or say that 
 a king cannot do this or that; but rest in that 
 which is the king's revealed will in his law." ^ 
 
 * Speech of James I before parliament, March 21, 1610. 
 Prothero, Sd. Stat. (2d ed.) 293. The commons replied by a pe- 
 tition claiming the right of free speech in discussing the pre- 
 rogative wherever it affected the subject. Ibid. 296. 
 
 " Speech in Star Chamber, June 20, 1616. Ibid. 399. 
 
THE FINAL STRUGGLE FOR LIBERTY 233 
 
 Over against this assumption of absolutism 
 stood the new-risen middle class which now 
 became the power of first importance in the 
 battle of liberty. The commons, although 
 growing in influence during the Middle Ages, 
 was then always led by the barons. For a cen- 
 tury and a half they had been leaderless, and, 
 from lack of experience and energy, quite 
 powerless to check the aggressions of royalty. 
 Now they had increased in substance and in- 
 telligence, while leaders of the highest ability 
 had risen from their own ranks. It was this 
 well-to-do middle class, of landed possessions 
 neither the largest nor the smallest, which bore 
 the brunt of the battle in parliament; even as, 
 supported by the smaller landowners down to 
 the 405. freeholders, it stood in the peace sys- 
 tem and jury system of the counties as the final 
 bulwark of civil Uberty. 
 
 The very first commons of James I, com- 
 posed of just such men,* showed in its apology 
 to the king" a true grasp of the difficulty of 
 their position. "What cause we your poor 
 
 * There were 231 knights, 140 esquires, 71 gentlemen, 9 
 wholesale merchants, 1 mayor, 9 aldermen, 4 doctors of law, 
 1 sergeant at law. Gneist, Eiig. Pari. 212. 
 
 * Prothero, Sel. Stat. (2d ed.) 286, 289. 
 
234 THE FINAL STRUGGLE FOR LIBERTY 
 
 Cominons have to watch over our privileges, 
 is manifest in itself to aU men. The prerogatives 
 of princes may easily, and do daily grow: the 
 privileges of the subject are for the most part 
 at an everlasting stand. They may be by good 
 providence and care preserved, but being once 
 lost are not recovered but with much disquiet." 
 The words were truly prophetic of what was 
 soon to take place. 
 
 This same first parliament won through a 
 compromise a notable victory. James in his 
 proclamation * for the election of the commons 
 had instructed the sheriffs to return no bank- 
 rupts or outlaws. Sir Francis Goodwin was 
 returned from Bucks and, being an outlaw, 
 was rejected by the clerk of the crown, who 
 issued a new writ on which Sir John Fortescue 
 was returned. Parliament was of the opinion 
 "that the freedom of election was . . . extremely 
 injured" ^ and declared Goodwin elected. The 
 ensuing dispute between crown and parlia- 
 ment ended in a compromise; neither contest- 
 ant was seated, and a new election was had.' 
 Never again, however, did the crown question 
 
 * Prothero, Sd. Stat. (2d ed.) 280. 
 ' See the Apology, Ibid. 286, 289. 
 
 * For proceedings, see Ibid. 325-331. 
 
THE FINAL STRUGGLE FOR LIBERTY 235 
 
 the right of the commons to judge the returns 
 of its members.' 
 
 As his predecessors had done, James tried to 
 create a court party in parUament, but popu- 
 lar opinion had grown so intense that he had 
 to depend for the carrying out of his arbitrary 
 will upon extra-parliamentary acts. He made 
 in council proclamations for the censorship of 
 the press, and these were enforced in the Court 
 of Star Chamber.^ By proclamations also "he 
 interfered with personal liberty and freedom 
 of trade, bidding country gentlemen to leave 
 London and go and maintain hospitality in 
 their own houses, forbidding the increase of 
 buildings about London, and the making of 
 starch out of wheat." * Sir Edward Coke, when 
 asked by the council for his opinion upon such 
 proclamations, repUed that: (1) a proclama- 
 tion could not change the law or create a 
 new offense, (2) the king had no prerogative 
 but what the law allowed, (3) the king might 
 admonish aU subjects to keep the laws, and 
 neglect of such a proclamation would aggra- 
 vate the offense, (4) the prohibition of an act 
 
 ' 1 Anson, Law and Ctid. 151. 
 
 ' See examples in Prothero, Sd. Stat. (2d ed.) 394, 395. 
 
 ^ 1 Anson, Law and Cud. 261, 262. 
 
236 THE FINAL STRUGGLE FOR LIBERTY 
 
 not punishable in the Star Chamber could not 
 make it punishable there.' Proclamations were 
 nevertheless continually issued, but after the 
 abolition of the Star Chamber the abuse died 
 out, since the remaining tribunals, the common 
 law courts, assumed the attitude of Coke.' 
 
 James most oflFended his parliaments by his 
 proclamations imposing extraordinary taxes. 
 As had always been the case, the battle was 
 hottest where taxation was concerned. Un- 
 able to keep his expenditures within the limits 
 of parliamentary grants, James by letters 
 patent increased the duty on tobacco from 2d. 
 to 6s. lOd. a pound, and upon currants from 
 2s. 6d. to 7s. 6d. One merchant, named 
 Bates, was rash enough to refuse to pay the 
 additional tax on currants, and, when pro- 
 ceeded against in the Court of Exchequer, 
 pleaded the statute granting 2s. 6d. The 
 subservient judges decided for the crown, upon 
 the ground that foreign trade was a matter of 
 general policy falling within the discretionary 
 power of the king, whose wisdom in its exercise 
 was not to be disputed by a subject.' 
 
 ' 12 Coke's Reports, 74, 76. 
 
 1 Anson, Law and Oust. 263. 
 ' 2 State Trials, 371; Lane's Reports, 22. 
 
THE FINAL STRUGGLE FOR LIBERTY 237 
 
 This was in 1606. James was so much en- 
 couraged that two years later he arbitrarily 
 raised the duties upon all sorts of merchan- 
 dise. In 1610 his needs forced him to call an- 
 other parliament, which stood upon its ancient 
 rights and petitioned "that all impositions set 
 without the assent of parliament may be quite 
 abolished and taken away" and that a law be 
 made declaring such impositions void.* As a re- 
 sult the illegal taxes were for a time reduced, 
 but only for a time. 
 
 James also made use of benevolences. One 
 taken in 1622 well shows the evil nature of 
 the thing. The judges, sheriffs, and justices 
 of the peace were commissioned to approach 
 men of means and "to move them to join will- 
 ingly in this contribution in some good meas- 
 ure." As those who did not join were to be 
 reported to the council, the "free will" of the 
 givers must have been very smalL^" 
 
 The character of the reign of James I is well 
 illustrated by the events of 1621. The com- 
 mons revived its right to impeach ministers 
 with the trial of Lord Chancellor Bacon for 
 corruption." It also assumed to deUberate on 
 
 » Prothero, Sel. SUd. (2d ed.) 302. 
 '^ Ibid. 359. ' Ibid. 334. 
 
238 THE FESTAL STRUGGLE FOR LIBERTY 
 
 several public questions. The king thereupon 
 forbade parliament to "meddle with anything 
 concerning our government or deep matters 
 of state." * To this the commons protested 
 that the crown was not absolute as to religion 
 and legislation, that parliament was the high- 
 est court of the country wherein there should 
 be freedom of speech and the decision of con- 
 tested elections.* James adjourned the par- 
 liament,' tore the protest from the journal of 
 the house with his own hands, and arrested sev- 
 eral members. Out of all the turmoil stands 
 one fact: while parliament had not really won 
 many victories, it had reached the point of 
 intelligent and emphatic protest. 
 
 The conflict became still more bitter during 
 the reign of Charles II, whose excesses led to 
 a violent swinging of the pendulum to the op- 
 posite extreme of lawlessness where a faction 
 of the people, and not the king, ruled uncon- 
 stitutionally. The trouble began with the first 
 parliament of the new king in 1625. The war 
 with Spain required a good deal of money, but 
 the commons were cautious and granted only 
 two small subsidies. What offended the king 
 
 * Protiero, Sel. Stat. (2d ed.) 310. 
 
 * Ibid. 311. 313. ' Ibid. 314. 
 
THE FINAL STRUGGLE FOR LIBERTY 239 
 
 most was that, instead of granting him tunnage 
 and poundage for life as had been done in late 
 reigns, parliament voted it for only a year. Dis- 
 solution was the method by which the king 
 expressed his feeUngs. The second parliament 
 in 1626 served Charles no better, for instead 
 of granting money, it began to inquire into 
 grievances, especially the corruption and ex- 
 tortions of the Duke of Buckingham. The king 
 in a speech warned the commons, "Remem- 
 ber that Parliaments are altogether in my power 
 for their calling, sitting, and dissolution; there- 
 fore as I find the fruits of them good or evil, 
 they are to continue or not to be." * Notwith- 
 standing the threat, Buckingham was im- 
 peached,* whereupon the king dismissed par- 
 liament. 
 
 Charles pretended to think himself so ag- 
 grieved by the carelessness of the commons 
 for the national support that he was justified in 
 getting money as best he might.' He ordered 
 the collection of a free gift* and of a forced 
 
 ' Gardiner, The ConstUvtiond Documents of the Puritan 
 Revolution (2d ed.) 4, 6. 
 
 * Ibid. 7-44. 
 
 ' See his statement in the commission for a forced loan. 
 Ibid. 51. 
 
 * Ibid. 46. 
 
240 THE FINAL STRUGGLE FOR LIBERTY 
 
 loan,* and sent out a commission for the levy- 
 ing of tunnage and poundage as it had been 
 taken at the time of James I's death.^ These 
 illegal exactions were enforced by means of bil- 
 leting soldiers upon the people, the use of press- 
 gangs, and imprisonment by the Star Cham- 
 ber. Five knights who had been so imprisoned 
 for refusing to make a forced loan in 1627 ap- 
 plied, under their common law right, for a writ 
 of Habeas Corpus. It was returned with the 
 indorsement, " confined by the special mandate 
 of the king." The case was carried before the 
 Court of King's Bench, where, numerous pre- 
 cedents for such despotic action having been 
 adduced, the applicants were denied the writ 
 and deprived of trial by jury.' 
 
 Public resentment and the lack of money 
 forced the king in 1628 to call his third par- 
 liament. In spite of another royal threat, the 
 commons again turned first to grievances, and 
 after promising to vote five subsidies to the 
 king, deferred further action while they spent 
 two months in perfecting and passing the Pe- 
 tition of Right. After reciting the illegal ex- 
 actions of the king and the arbitrary impris- 
 
 * Gardiner, Const. Doc. (2d ed.) 51. 
 
 =" Ibid. 49. ' 3 State Trials, 1, 61-59. 
 
THE PINAL STRUGGLE FOR LIBERTY 241 
 
 onment, billeting of soldiers and martial law 
 by which they had been enforced, parliament 
 prayed "that no man hereafter be compelled 
 to make or yeild any guift, loane, benevolence, 
 taxe, or such like charge, without common con- 
 sent by Acte of Parliament; and that none be 
 called to make aunswere or take such oath, 
 or to give attendance, or be confined, or other- 
 wise molested or disquieted concerning the 
 same or for refusall thereof; and that no free- 
 man, in any such manner as is before men- 
 cioned, be imprisoned or deteined; and that 
 your Majestic would be pleased to remove the 
 said souldiers and marriners, and that your 
 people may not be soe burthened in tyme to 
 come; and that the aforesaid commissions for 
 proceeding by martiall lawe may be revoked and 
 annulled: and that hereafter no commissions 
 of like nature may issue forth to any person 
 or persons whatsoever to be executed as afore- 
 said, lest by colour of them any of your Majes- 
 tie's subjects be destroyed or put to death con- 
 trary to the lawes and franchise of the land." 
 The king gave an unwilling assent, and par- 
 liament granted the five subsidies already pro- 
 mised. 
 
 The Petition said nothing expressly about 
 
242 THE FINAL STRUGGLE FOR LIBERTY 
 
 illegal customs, but parliament had not over- 
 looked them. As a preliminary to a grant of 
 tunnage and poundage for life, a remonstrance 
 was presented asking that the king declare 
 "the receiving of tunnage and poundage, and 
 other impositions not granted by parliament, 
 a breach of the fundamental hberties of this 
 kingdom, and contrary to your Majesty's royal 
 answer to the said Petition of Right." * This 
 was too much for the king's patience, and par- 
 liament was prorogued.'' During the recess of 
 seven months Charles continued his arbitrary 
 taking of tunnage and poundage contrary to 
 the spirit, if not the letter, of the Petition of 
 Right. A stormy second session of six weeks was 
 marked by a deadlock between the king and the 
 parliament as to alleged Popish innovations and 
 the taking of customs. The culmination came 
 in the resolution of the commons, made while 
 the king's guard was clamoring at the locked 
 door for admission in order to dissolve par- 
 lianient, that those who forwarded new and 
 Popish forms or who had anything to do with 
 the taking or payment of tunnage and pound- 
 age not granted by parliament, were to be 
 
 ' Gardiner, Const. Doc. (2d ed.) 70. 
 * Ibid. 73. 
 
THE FINAL STRUGGLE FOR LIBERTY 243 
 
 reputed capital enemies of the realm. » The 
 conviction of Eliot, Holies, and Valentine, the 
 chief sponsors of this resolution, ended the last 
 legal proceedings ever taken for speech in par- 
 liament.^ 
 
 After the dissolution of parliament, Charles 
 showed a lack of good faith hardly second to 
 that of John. The Petition of Right was wholly 
 disregarded and the king reigned as an autocrat 
 for eleven years. Without a parUament, with 
 a bench and council and ministers dependent 
 upon the king's good will for appointment and 
 retention in office, every abuse was possible.' 
 Prerogative taxation was exercised unspar- 
 ingly for the financial support of the state, 
 while the Star Chamber enforced its collec- 
 tion and in general overrode all attempts at the 
 exercise of popular rights. The Puritans who 
 opposed the king's religious proclamations 
 and all who resisted taxation suffered fine, im- 
 prisonment, the pillory, or mutilation. 
 
 The most notable abuse of the period was 
 the revival of ship money, which was nearly 
 
 ' Gardiner, Cana. Doc. (2d ed.) 82. See also Ibid. 83, the 
 king's Declaration Showing the Causes of the Late Dissolution. 
 ^ 1 Anson, Law and Oust. 140. 
 ' 2 Anson, Law and Oust. 27. 
 
244 THE FINAL STRUGGLE FOR LIBERTY 
 
 related to the Danegeld and had anciently been 
 levied upon the seaport towns under the name 
 of Shipgeld for the equipment of a navy when 
 invasion threatened. Now the tax was laid, 
 not only without any real pretense that * the 
 country was endangered, but also on inland 
 communities as well as the seaboard. The form 
 of the old levy was retained by ordering each 
 county to fit out a ship and have it at Ports- 
 mouth on a day named. But as the king wanted 
 money, not ships, he directed the sheriff to 
 levy ratably upon the individual freeholders 
 and citizens. Before the ship money was de- 
 manded from the inland counties in 1635,* 
 Charles induced the subservient judges to give 
 their opinion that the tax was Valid, an opin- 
 ion which was affirmed in 1637. Thus armed, 
 the king had no cause to fear when John Hamp- 
 den refused to pay his £1 and appealed to the 
 court, which decided seven to five against the 
 liberties of the subject. Nearly all of the judges 
 held that the king might be forced by the neces- 
 sities of defense to raise money without par- 
 liament. The majority held the king to be the 
 only judge of the necessity, hence found that 
 
 ' It was levied on seaports in 1634, while in 1635 and 1637 
 the writs were extended to the inland counties. 
 
THE FINAL STRUGGLE FOR LIBERTY 245 
 
 there was imminent danger. Berkeley went 
 so far as to say that the king was above the 
 law, and that a parliamentary grant was not 
 an exercise of good will, but of absolute duty.* 
 
 Professor Gneist thinks that the rock upon 
 which this aggression finally broke was the re- 
 sistance of the primary forces of popular gov- 
 ernment in the counties. The mechanism for 
 carrying out despotism was in the last instance 
 lacking, for the men from whom sheriffs and 
 justices of the peace must be chosen were the 
 well-to-do landed men, who, independent by 
 reason of their property, firmly resisted in- 
 timidation. When aggression met this oppo- 
 sition, it gradually became exhausted, until 
 finally the Scottish war found the king utterly 
 unable to meet expenses. Then in 1640 a 
 parliament was called.* 
 
 This "Short ParUament" lasted but three 
 weeks. The king was willing to give up ship 
 money for a large grant, but the commons 
 refused to purchase what was deemed an an- 
 cient right. Dissolution followed, and for sev- 
 eral months Charles continued the autocracy. 
 But reverses in the Scotch campaign forced 
 
 1 3 State Trials, 825, 846, 1065-1251. 
 =* Gneist, Eng. Pari. 219, 220. 
 
246 THE FINAL STRUGGLE FOR LIBERTY 
 
 the king to yield a point, and on November 3, 
 1640, the "Long Parliament" began to sit. 
 The amount of important business done within 
 a year was enormous. In order that the king 
 might not again rule without a parliament there 
 was passed the Triennial Act providing that 
 if the king neglected for three years to call a 
 parliament, the peers might issue writs, and 
 that if the peers also neglected to do so, the 
 constituencies might of their own authority 
 elect a House of Commons.' It was also en- 
 acted that the present parliament should not 
 be dissolved without its own consent.* The 
 prime minister, Strafford, was first impeached 
 and then convicted of treason by an act of at- 
 tainder.' Ship money was by statute declared 
 illegal, and the sentence against Hampden 
 reversed.* Tunnage and poundage was granted 
 to the king and by statute declared to be under 
 the authority of parliament,^ Most import- 
 ant of all, the chief weapons of prerogative 
 were taken away by the abolition of the Star 
 Chamber" and the Court of High Commis- 
 
 * St. 16 Car. I, c. 1. ^ St. 16 Car. I, c. 7. 
 ' 5 Statutes of the Realm, 177. 
 
 * St. 17 Car. I, c. 14. « St. 16 Car. I, c. 8. 
 
 * St. 17 Car. 1, c. 10. 
 
THE FINAL STRUGGLE FOR LIBERTY 247 
 
 sion.» With this came the restoration of the 
 writ of Habeas Corpus." 
 
 A great victory had been won and the an- 
 cient constitution restored, but matters could 
 not stop here. Charles had assented to all this 
 legislation with very poor grace, and showed 
 a disposition to override it when opportunity 
 should offer. Yet many of the constitutional 
 parly thought the work was done and failed 
 to see that against a king ready to repudiate 
 the unwilling affirmation he had given the 
 acts of parliament, even more safeguards were 
 necessary. An appeal to the people was drawn 
 up under the name of the Grand Remon- 
 strance,' which set forth the causes for fear, and 
 recommended, among other things, new safe- 
 guards against Papists, an oath by the judges 
 to support the Petition of Right, and the em- 
 ployment of sworn ministers and councilors 
 in whom parliament could confide. This would 
 have taken from Charles almost his last wea- 
 pons of oppression. So extreme a measure 
 was contrary, however, to the ideas of some 
 
 ^ St. 17 Cax. I, c. 11. Since the time of Elizabeth, this court 
 had in ecclesiastical matters been operating upon the same lines 
 as the Star Chamber. 
 
 =* St. 17 Car. I, c. 10, s. vi. 
 
 * Gardiner, Cmst. Doe. (2d ed.) 202. 
 
248 THE FINAL STRUGGLE FOR LIBERTY 
 
 of the more conservative opponents of the king, 
 and the remonstrance passed by only eleven 
 votes. Of course the king denied the petitions 
 which accompanied the remonstrance. * Fur- 
 thermore, he presumed so far as to have one 
 member of the House of Lords and five mem- 
 bers of the House of Commons impeached for 
 treason by the attorney-general,' an irregular 
 proceeding which was resented by the com- 
 mons as an invasion of the peculiar privilege 
 of beginning impeachments, which lay in that 
 body.' 
 
 In its distrust of the king and well-founded 
 fear that he would turn the army against it, 
 parliament passed an ordinance placing the 
 militia under parKamentary control.* Charles 
 issued a proclamation forbidding any action 
 under this ordinance,^ but parliament de- 
 clared the proclamation void.* Both sides now 
 completed preparations for war, the king is- 
 suing commissions of array,' parliament voting 
 to raise an army.' The parliamentary party, in 
 the first stages of the civil war, included about 
 
 ' Gardiner, Const. Doc. (2d ed.) 233. 
 
 =" Ibid. 236. 
 
 » Ibid. 254. 
 
 " Ibid. 237. 
 
 ' Ibid. 258. 
 
 * Ibid. 245. 
 
 « Ibid. 261. 
 
 = Ibid. 248. 
 
 
THE FINAL STRUGGLE FOR LIBERTY 249 
 
 two thirds of the nation, the larger part of the 
 prosperous towns and the free peasantry. It 
 had a good portion of the nobility, but its lead- 
 ers were not so much nobles as men, like Hamp- 
 den, of the landed gentry, and Cromwell, of 
 the solid middle class. The royal party con- 
 tained about half of the nobility and old gen- 
 try.* 
 
 The parliamentary party, already forsaken 
 by many of the more conservative men who 
 had at first opposed the king, was soon even 
 more seriously divided. In the army there was 
 a preponderance of men holding the extreme 
 Puritanical and Independent views of religion 
 and politics. Although really a minority in the 
 nation, they were yet able, as the miUtary force 
 in time of war, to exercise an overwhelming 
 authority. Charles's unbroken claim to divine 
 right throughout the strife and his evident 
 lack of intention to better his ways finally forced 
 the army to extremes. Imbued as they were 
 with the religious idea, the Puritans were able 
 to say that the right of the ruler, so far as it 
 was divine, was founded in grace, and to draw 
 the conclusion that if the ruler sinned, he fell 
 from grace and lost the right to rule. It was 
 
 * Gneist, Eng. Pari. 221. 
 
250 THE FINAL ;^STRUGGLE FOR LIBERTY 
 
 even said that there was such a thing as high 
 treason of the king against the people. The 
 Puritans have been termed fanatical, and it 
 may be admitted that they were, at least in 
 the sense that they were in advance of their 
 time. 
 
 Finally it seemed to the army that the only 
 solution of the difficulty was to put its new 
 theory into execution and to rid the country 
 of the king. The majority of the commons 
 refused to depart from the kingly idea, and on 
 December 6, 1648, declared for terms of peace 
 by a vote of 120 to 83. Upon this the army 
 imprisoned 47 members and forbade 96 others 
 to attend parliament. The minority of the 
 commons left continued to sit as the "Rump 
 Parhament," and on January 6, 1648-9, passed 
 an act * erecting a court before which Charles I 
 was tried and convicted of treason.'' The same 
 "parliament" abolished the office of king,' 
 did away with the House of Lords,* and de- 
 clared the people of England to be a "Com- 
 monwealth and Free State." ^ 
 
 Although Cromwell was an able adminis- 
 
 ' Gardiner, Const. Doe. (2d ed.) 367. 
 ' Ibid. 371-380. * Ibid. 387. 
 
 * Ibid. 384. 6 Ibid. 388. 
 
THE FESTAL STRUGGLE FOR LIBERTY 2S1 
 
 trator and the first ruler of his time, govern- 
 ment by the minority was fated from the be- 
 ginning to shipwreck. ParUamentary govern- 
 ment was desired and sought by the Protector, 
 but was impossible while the majority opposed 
 the new regime. Military rule was therefore 
 the only expedient to keep out royalty. Under 
 it discontent arose and increased. The middle 
 class could fight, but had neither the native 
 ability nor the experience in national a£fairs 
 to mould the constitution anew. The conserv- 
 ative landed gentry who had been justices of 
 the peace offered a hostile pohce administra- 
 tion. If they were displaced by the newer men 
 of inexperience, lack of authority resulted. The 
 conservatives were also too well represented 
 upon the juries for the ordinances of the Rump 
 to be weU enforced. A military government 
 was imperatively required, or the innovators 
 must fall. The army required money, and that 
 meant high taxes. The county administration 
 found difliculty in collecting them, and mili- 
 tary assessment was resorted to. As the juries 
 often refused to convict those who declined to 
 pay their taxes, a Court of High Justice on 
 lines in some respects like the Star Chamber 
 had to be erected. In 1655 eleven military gov- 
 
252 THE FINAL STRUGGLE FOR LIBERTY 
 
 ernors were put over the country with power 
 to levy troops, collect taxes, imprison suspi- 
 cious persons, and inquire into the private life 
 of the clergy and schoolmasters.' The Protect- 
 orate broke when it met the resistance of the 
 people in the counties. It was just there that 
 Charles I had come to grief, as must every man 
 or movement that is supported by only a mi- 
 nority. 
 
 The restoration of the Stuarts to the throne 
 after the popular extremes of the Common- 
 wealth and Protectorate was naturally followed 
 by so great a reaction that some extremes of 
 prerogative followed, yet these were not so 
 great as might have been feared. Charles II 
 made no attempts to legislate in council, to 
 collect illegal customs, or to take benevolences 
 and forced loans.'' He did not dare to interfere 
 with freedom of speech or to pack the com- 
 mons by creating new boroughs, so parliament 
 found itseK supreme in legislation and taxa- 
 tion except in so far as the king could influ- 
 ence its members by places, pensions, and 
 bribes.' 
 
 In control of administration, however, par- 
 
 1 Gneist, Eng. Pad. 226-231. => Ibid. 241. 
 
 ' 1 Anson, Law and Oust. 284. 
 
THE FINAL STRUGGLE FOR LIBERTY 253 
 
 liament found itself without the authority which 
 past events showed that it needed. By means 
 of adding appropriating clauses to grants of 
 subsidies the commons did indeed accom- 
 plish much, but the king still had the appoint- 
 ment of councilors and judges, whom he kept 
 under his personal influence/ The justices 
 he used to intimidate juries for the conviction 
 of those whom he mistrusted/ Charles II di- 
 vided the Privy Council into committees which 
 dealt with the separate departments of admin- 
 istration. Hating prolonged discussion, he 
 limited the consideration of matters of gen- 
 eral policy to a few men constituting a " cabi- 
 net" which became notorious under the name 
 of "Cabal." This he used for secret negotia- 
 tions with Louis XIV, from whom he obtained 
 money for remaining neutral in the conflict 
 between France and Holland, although parlia- 
 ment favored the latter. These abuses aroused 
 the commons to undertake again the impeach- 
 ment of ministers. Charles then turned his 
 attention to methods of controlling parlia- 
 ment. Unable to corrupt the members, he tried 
 to corrupt the electorate, but with small suc- 
 
 * Gneist, Eng. Pari. 243, 243. 
 2 Ibid. 246, 247. 
 
254 THE FINAL STRUGGLE FOR LIBERTY 
 
 cess in the counties. In the boroughs he suc- 
 ceeded better. There the electorate had always 
 been subservient to the landed gentry, and now 
 the king substituted himself as the paramount 
 influence. His method was ingenious: by 
 means of proceedings in the nature of quo 
 warranto, town privileges were declared for- 
 feit, and new charters were granted with muni- 
 cipal boards revocable by the crown. Yet an 
 attempt was made in 1679 to obtain a Privy 
 Council which should act in harmony with 
 parliament. Sir William Temple organized a 
 council of thirty, including a number of parlia- 
 mentary members, but this rapidly divided into 
 special committees, with a small inner group 
 discussing general affairs outside of the meet- 
 ing of the whole. Just as before, there was an 
 irresponsible cabinet. Never again was there 
 an attempt to get a responsible Privy Council, 
 and that body soon ceased to be an important 
 part of the constitution.* 
 
 The last stage of the struggle for liberty came 
 in the few years when James 11 was king. The 
 particular abuse of prerogative of which he 
 was guilty was the exercise of the dispensing 
 
 ' Gneist, Eng. Pari. 244-246, 249, 250; 2 Anson, Law and 
 Cud. 95-97; Dicey, Priv. Court. 135-142. 
 
THE FESTAL STRUGGLE FOR LIBERTY 263 
 
 and suspending powers. Dispensations had 
 always been granted by the crown from the 
 operation of penal laws, and often of neces- 
 sity, for sometimes inconvenience or hardship 
 would arise if the laws were enforced in par- 
 ticular cases which arose while parKament 
 was not in session to offer a remedy. But the 
 abuses had far surpassed the advantages of the 
 exercise of such power, for it had been oftenest 
 used for the favorites of the king and for the 
 upbuilding of the personal influence of the 
 crown. Pardons had been freely granted for 
 aU sorts of offenses, even petty crimes.' The 
 case of Thomas v. SorreU,'' decided by Vaughan, 
 C. J., in 1673 laid down the rule that a dispen- 
 sation from a penal statute might be granted, 
 before or after an illegal act, in the case of an 
 individiial breach by which no man was in- 
 jured, or in case of a continuous breach of a 
 penal statute enacted for the sole benefit of 
 the king. 
 
 As a preliminary to what seems to have been 
 a campaign for the restoration of Catholicism 
 by an army officered by Romanists, James, 
 by the dismissal of some judges and the ap- 
 
 * 1 Anson, Law and Oust. 265, 266. 
 Vaughan's Reports, 330. 
 
256 THE FINAL STRUGGLE FOR LIBERTY 
 
 pointment of more servile ones, got a bench 
 which would declare for prerogative. He then 
 commissioned Sir Edward Hales, a CathoUc, 
 to be colonel, and dispensed with the statutory- 
 oath of conformity to the English Church. The 
 collusive action of Godden v. Hales,* which 
 was brought to recover the penalty of £500, 
 was decided by eleven of the twelve judges 
 in favor of the dispensing power. The statute 
 in question not being for the sole benefit of the 
 king but for the protection of the nation against 
 Papacy, the decision cannot be reconciled with 
 that of Thomas v. Sorrell.^ The king followed 
 up his advantage by the appointment of Cath- 
 olics as Privy Councilors and holders of bene- 
 fices, and those who resisted his interference 
 in the latter cases were deprived of oflfice by 
 the authority of a Court of Commissioners for 
 Ecclesiastical Causes erected by James, in de- 
 fiance of statute, upon the lines of the old High 
 Commission. 
 
 But the king did not confine himself to dis- 
 pensing with the oath of supremacy in par- 
 ticular cases. Under cover of a "Declaration 
 for Liberty of Conscience" he assumed to sus- 
 
 * 2 Shower's Reports, 475; 11 State Trials, 1165. 
 
 * 1 Anson, Law and Oust. 270. 
 
THE FINAL STRUGGLE FOR LIBERTY 267 
 
 pend the operation of the penal statute en- 
 tirely. Such an odious claim to superiority 
 to the law was insufferable, and yet, when the 
 question of its legality was collaterally raised 
 before the King's Bench in the Seven Bishops' 
 Case,* the judges divided two and two. The 
 vital point was well stated when Powell, J., 
 said, "If this be once allowed of, there will 
 need no parliament," but the danger of a Cath- 
 olicized standing army was undoubtedly the 
 immediate cause of popular indignation against 
 the king and of the Revolution of 1688. This 
 revolution was accomplished without the ex- 
 tremes which attended the overthrow of James's 
 father, and consequently it brought to a close 
 the long struggle between the people and the 
 prerogative. Constitutional progress has indeed 
 been made since then, but the main principles 
 defining the rights of the people found final 
 statement in the Bill of Rights passed by the 
 Convention Parliament in 1689. This act de- 
 clared, as ancient rights and liberties : 
 
 " 1. That the pretended power of suspending 
 of laws, or the execution of laws, by regal au- 
 thority, without consent of parliament, is illegal. 
 
 "2. That the pretended power of dispens- 
 
 » 12 State Trials, 183. 
 
258 THE FINAL STRUGGLE FOR LIBERTY 
 
 ing with, laws, or the execution of laws, by regal 
 authority, as it hath been assumed and ex- 
 ercised of late, is illegal.* 
 
 "3. That the commissions for erecting the 
 late Court of Commissioners for Ecclesias- 
 tical Causes, and all other commissions and 
 courts of like nature, are illegal and pernicious. 
 
 " 4. That levying of money for or to the use 
 of the crown by pretense of prerogative, with- 
 out grant of parliament, for longer time or 
 in other manner than the same is or shall be 
 granted, is illegal. 
 
 "5, That it is the right of the subject to pe- 
 tition the king, and all commitments and prose- 
 cutions for such petitioning are illegal. 
 
 "6. That the raising or keeping a standing 
 army within the kingdom in time of peace, 
 unless it be with consent of parliament, is against 
 law. 
 
 "7. That the subjects which are Protest- 
 ants may have arms for their defense suitable 
 to their conditions, and as allowed by law.'' 
 
 ' See infra, clause 12. The possibilily of such abuse of pre- 
 rogative being again declared legal by a packed court was re- 
 moved by the Act of Settlement, Stat. 12 and 13 Will, m, c. 2, 
 s. iii (7), to the effect that judges be removable only by address 
 of both houses of parliament. 
 
 ^ The right of self-defense by weapons had, in this time of 
 
THE FINAL STRUGGLE FOR LIBERTY 259 
 
 8. That elections of members of parlia- 
 ment ought to be free.* 
 
 9. That the freedom of speech, and de- 
 bates or proceedings in parUament, ought not 
 to be impeached or questioned in any court or 
 place out of parliament. 
 
 "10. That excessive bail ought not to be 
 required nor excessive fines imposed; nor cruel 
 and unusual punishment inflicted. 
 
 "11. That jurors ought to be duly impaneled 
 and returned, and jurors which pass upon men 
 in trials for high treason ought to be free- 
 holders. 
 
 "12. That all grants and promises of fines 
 and forfeitures of particular persons before 
 conviction, are Ulegal and void. 
 
 "13. And that for redress of all grievances, 
 and for the amending, strengthening, and pre- 
 serving of the laws, parliament ought to be 
 held frequently." ^ 
 
 fear of Popery, to be restricted to iJiose who would not use them 
 to overthrow the state. 
 
 ' Corruption in electiona is always possible so long as the 
 electorate lacks civic interest or morality. It did not cease with 
 the Bin of Rights. The abolition of rotten boroughs in 1832 
 practically ended the chance of corruption by the crown. 
 
 * The Triennial Act of the Long ParUament was repealed in 
 1664 as subversive of prerogative in allowing writs to issue from 
 other sources than the crown. In its place, it was enacted that 
 
260 THE FINAL STRUGGLE FOR LIBERTY 
 
 Reference has several times been made to 
 the cabinet system. Although the struggle for 
 liberty really ended with the Bill of Rights and 
 the cabinet is a later development, its import- 
 ance, as the means by which parliament got 
 control of the executive and strengthened it- 
 self in legislation and taxation, seems to de- 
 mand some consideration. After the Revolu- 
 tion of 1688, the commons deprived the king 
 of the sole right to control the expenditures of 
 revenue by extending the principle of appro- 
 priation first used under Charles II. The king 
 was given an allowance, called the civil list, to 
 meet the expenses of the household and civil 
 departments, while parliament each year gave 
 its consent (as required by the Bill of Rights) 
 to the maintenance of the army and navy, at 
 the same time voting the sums required and 
 paying them out. Parliament thus kept the 
 executive always under scrutiny. 
 
 The new power of the commons made it 
 
 the sitting and holding of parliament should not be intennitted 
 for over three years. The Triennial Act of 1694 required the 
 crown to issue writs within three years after the close of each 
 parliament. The prerogative still lies with the king, but he is 
 directed by statute to exercise it and is compelled to call parlia- 
 ment annually, otherwise he would have no standing army and 
 (without appropriations) could not pay two thirds of the na- 
 tion's charges. 1 Anson, Law and Cust. 246-248. 
 
THE FINAL STRUGGLE FOR LIBERTY 261 
 
 necessary for the king to choose ministers who 
 would be approved by the majority of parlia- 
 ment and would act in accordance with its 
 wishes. The king has since 1688 found the sup- 
 port of the majority essential. In theory his 
 ministers are still his servants, "but they are 
 chosen for him by the unmistakable indica- 
 tion of the popular wishes at the polling booth 
 or in the division lobby." Because the king 
 must have a majority to pass the Army Bill 
 and appropriations, he must defer to the popu- 
 lar desires as to ministers and their policies. 
 
 So, too, deprived of a packed parliament 
 and the dispensing power, he may initiate 
 through his ministry only such legislation as 
 the majority will approve. If he dislikes a bill 
 passed by parliament, he must yet approve 
 it, hence there has been no veto for nearly two 
 centuries. His only chance of defeating legis- 
 lation, and that is a small one, is to dismiss 
 the ministry which insists upon its passage 
 and appoint a new one. If the new ministry 
 is not supported by parliament, then the legis- 
 lature may be dissolved and an appeal made 
 to the people. But the newly elected parlia- 
 ment may prove to be unfavorable to the king, 
 and then he must yield to its will, for its friend- 
 
262 THE FINAL STRUGGLE FOR LIBERTY 
 
 ship is indispensable.* Besides confirming 
 parliament in its claims to control legislation, 
 taxation, and administration, the cabinet sys- 
 tem has also decided the problem, which arose 
 in connection with the dispensing power, as 
 to who should act in emergencies when there 
 is no parliament. Now that the executive is 
 answerable to parHament, he and his ministers 
 may safely be allowed to go forward and do 
 what circumstances demand.^ 
 
 Again the question arises as to the influence 
 of the landed man upon the events of Tudor 
 and Stuart times which made the people the real 
 sovereign power of the nation, and established 
 definitively those principles of liberty which 
 are to-day enjoyed by the citizens of England 
 and the United States of America. We have 
 already seen that the landed men of the mid- 
 dle class became the leaders in the popular 
 movements of the Stuart period, and that in 
 the counties they offered the resistance which 
 finally broke down alike the despotic mon- 
 archy of Charles I and the mihtary dictator- 
 ship of the Protector. It may be added that 
 the character of the electorate and the quali- 
 
 * 1 Anson, Law and Oust. 27, 254, 255; 2 Ibid. 34-39. 
 =* 1 Ibid. 283. 
 
THE FINAL STRUGGLE FOR LIBERTY 263 
 
 fications for membership in parliament had 
 remained without change from mediaeval times. 
 Sir Thomas Smith, in his Commonwealth of 
 England, written in 1565, enumerated four 
 classes of men. First came the barons, of an 
 annual revenue of £1000; secondly, the knights 
 of a yearly income of £40 from free lands and 
 the esquires and lesser gentlemen "who can 
 live idly and without manual labour." All 
 these were of the gentry. Thirdly, there were 
 the yeomen, legales homines, of the annual in- 
 come of 405. from free land. Finally, the au- 
 thor mentioned "the men which do not rule," 
 those "which have no free land. These have 
 no voice nor authority in our commonwealth, 
 and no account is made of them, but only to 
 be ruled." » 
 
 In the Middle Ages, it was the first of these 
 classes which furnished the leaders in the bat- 
 tles for hberty, but we have already seen how 
 the barons lost their predominance in the na- 
 tion and how the cause of liberty languished 
 until the second class developed powers of 
 leadership and mastery. Two thirds of the 
 earls and barons of 1640 had been created 
 
 * Smith, The Commonwealth of England (ed. 1589) bk. i, 
 chaps. 17-24, quoted in Prothero, Sel. Stat. (2d ed.) 176, 
 
264 THE FINAL STRUGGLE FOR LIBERTY 
 
 within a generation. Among them could not 
 be found the strong independence which would 
 assert itself against royal aggression. On the 
 other hand it has been estimated that the com- 
 bined income of the members of the House 
 of Commons of the Long Parliament was £400,- 
 000, and that their landed property was three 
 times greater than that of the lords.* Truly 
 the landed man was still in power when the 
 final battles were fought, even though his mo- 
 tive had doubtless ceased to be so largely the 
 protection of his land as it anciently had been. 
 And yet the landed man did at times act for 
 selfish ends, as when in 1660 he secured the 
 abolition of military tenure and, instead of 
 substituting a land-tax, made up the deficiency 
 in taxation by an excise on beer. That the last- 
 named action was taken by a plurality of two 
 votes indicates, however, a more catholic spirit 
 than had once been abroad. 
 
 While political power had been descending 
 the territorial scale, it did not pass from the 
 gentry. Although the lords were no longer of 
 overshadowing influence, the landed gentry were 
 the ruling class and generally controlled the 
 lower class of the electorate. Deprived of their 
 
 * Gneist, Eng. Pari. 257, 258. 
 
THE FINAL STRUGGLE FOR LIBERTY 265 
 
 power in borough elections by the new char- 
 ters of Charles II, the gentry resumed it when 
 James II withdrew the charters and restored 
 the old order of things. The merchant class, al- 
 though they had grown to great wealth, never had 
 in parliament a representation which could make 
 itself overwhelmingly felt, and only in London 
 and a few other large trade towns did they 
 much influence the electorate.* To Sir Wil- 
 liam Temple's mind, one of the great advan- 
 tages of his council was the wealth of its mem- 
 bers, for "authority is observed much to fol- 
 low land." ^ 
 
 Nor has the landed man since then entirely 
 lost his preponderant influence in the nation. 
 The reform acts of the nineteenth century, 
 while greatly enlarging the electorate, have left 
 it in the hands of owners, users, and inhabit- 
 ants of lands, houses, and lodgings of certain 
 values,' so although there is practically a near 
 approach to manhood suffrage, the land-idea 
 has not yet entirely passed. And even as the 
 landed gentry of the seventeenth century had 
 
 » Gneist, Eng. Pari. 259-261. 
 
 ^ Temple, Memoirs (ed. 1720) 233; cited, Dicey, Priv. Coun. 
 140. 
 3 1 Anson, Law and Cud. 91, 102-108. 
 
266 THE FINAL STRUGGLE FOR LIBERTY 
 
 a preponderant influence in polities in spite 
 of the fact that others might vote, so now, with 
 a franchise extended below the freeholders, the 
 landed gentry retain a power greatly dispropor- 
 tionate to their numbers. The landed man 
 who stood as a leader in the winning of civil 
 liberty stands to-day as perhaps its most con- 
 servative and powerful defender. 
 
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