7. If any law-suit arise between a layman and an ecclesiastic concerning the nature of a fief, the question shall be decided by the king's chief justice, by the verdict of twelve probi homines; and according as the nature of the fief may be determined, further proceedings shall be carried on before the civil or ecclesiastical courts.
8. Any inhabitant of a city, town, borough or manor in the
king's demesnes, who has been cited before an ecclesiastical
court to answer for some offence, and who has refused to
appear, may be placed under an interdict; but no one may be
excommunicated till the chief officer of the place where he
resides be consulted, that he may compel him by the civil
authority to give satisfaction to the church.
9. The judgment of all causes, for debts contracted by oath or
otherwise, is referred to the civil courts.
10. When any archbishopric, or bishopric, or abbey, or priory
of royal foundation is vacant, the king shall enjoy its
revenues; and when it becomes necessary to fill up a see, the
king shall summon a chapter to proceed, in the royal chapel, to
the election, which must obtain the sanction of the king,
according to the advice of the prelates whom he may have
thought proper to consult; and the bishop-elect shall swear
fealty and homage to the king as to his lord, for all his
temporal possessions, with the exception of the rights of his
order.
11. Churches belonging to the king's fee shall not be granted
in perpetuity without his consent.
12. No layman shall be accused before a bishop, except by legal
and reputable promoters and witnesses; and if the culprit be of
such high rank that no one dares to accuse him, the sheriff,
upon the demand of the bishop, shall appoint twelve lawful men
of the neighbourhood, who, in presence of the bishop, shall
pronounce upon the facts of the case, according to their
conscience.
13. Archbishops, bishops, and other spiritual dignitaries who
are immediate vassals of the king, shall be regarded as barons
of the realm, and shall possess the privileges and be subjected
to the burdens belonging to that rank, except in the case of
condemnation to death or to the loss of a limb.
14. That if any person resist a sentence legally pronounced
upon him by an ecclesiastical court, the king shall employ his
authority in obliging him to make submission. In like manner,
if any one throw off his allegiance to the king, the prelates
shall assist the king with their censures in reducing him.
15. Goods forfeited to the king shall not be protected in
churches or churchyards.
16. No villein shall be ordained a clerk without the consent of
the lord on whose estate he was born.
Murder Of Thomas A Becket.
When the constitutions of Clarendon had once been adopted, the king required that the bishops should affix their seals thereto; all consented with the exception of Becket, who resisted for a long while, but yielded at length, and promised "legally, with good faith, and without fraud or reserve," to observe the constitutions. The king sent a copy of them to Pope Alexander, who approved only the last six articles, and annulled all the rest. Strong in the support of the Pope, Becket did penance for his submission, and renewed the conflict. It soon became desperate. The king harassed Becket with persecutions of all kinds, requiring him to give an account of his administration while Chancellor, and charging him with embezzlement; the bishops became alarmed and deserted the cause of the primate. Becket resisted with indomitable courage; but he was finally compelled to fly to the Continent. Henry confiscated all his property, and banished all his relatives and servants, to the number of four hundred. Becket excommunicated the servants of the king, and, from his retirement in a French monastery, made Henry totter on his throne. At length, the Pope with his legates, and the King of France, interfered to put an end to this conflict. Henry, who was embarrassed by a multitude of other affairs, yielded, and Becket returned to his see. But his conscience united with his pride to rekindle the war. He censured the prelates who had failed to support him, and excommunicated some of the king's servants who had been active in their persecution of the clergy. "What!" cried Henry, in a transport of passion, "of the cowards who eat my bread, is there not one who will free me from this turbulent priest?" He was then at Bayeux; four of his gentlemen set out at once for Canterbury, and assassinated Becket on the steps of the altar of his cathedral, on the 29th of December, 1170. The king dispatched a courier in pursuit of them, but he arrived too late to prevent the consummation of the deed. Henry manifested the utmost grief at the death of Becket; we may, however, suppose his sorrow to have been feigned. In order to avert the consequences, he at once sent envoys to Rome to attest his innocence, and the Pope contented himself with fulminating a general excommunication against the authors, fautors, or instigators of the assassination.
Conquest Of Ireland.
Other events, wars with Scotland and France, and an expedition into Ireland, diverted the public attention from Becket's death. In 1172, Henry resumed his negotiations with Rome, and concluded a treaty which, on the whole, ratified the enactments of the Council of Clarendon. When he had thus become reconciled with the Pope, he made his peace with his subjects, whose enmity he feared, by a public penance on the tomb of Becket, who was honoured by all England as a martyr.
In 1172, some English adventurers conquered without difficulty, and almost without a battle, a part of Ireland. Henry led an expedition into that country, and his authority was recognized. The remainder of his life was agitated by continual wars in defence of his possessions on the Continent, and by the rebellions of his children, who were anxious to divide his power and dominions before his death. He died of grief at their conduct on the 6th of July, 1189, at Chinon, near Saumur; and the corpse of one of the greatest kings of England and of his age was left for some time, deserted and stripped, upon the steps of an altar. His eldest son, Richard Cœur-de-Lion, succeeded him without difficulty.
Richard Cœur-de-lion.
In every age, and at every great epoch of history, we almost invariably witness the appearance of some individuals who seem to be the types of the general spirit and dominant dispositions of their time. Richard, the adventurer-king, is an exact representation of the chivalrous spirit of the feudal system and of the twelfth century. Immediately upon his accession, his only thought was the accumulation of money for the Crusades; he alienated his domains; he publicly sold offices, honours, and even the loftiest dignities, to the highest bidder; he even sold permissions not to go on the Crusade; and he was ready to sell London, he said, if he could find a purchaser. And while he was sacrificing everything to his passion for pious adventures, his people massacred the Jews because some of them had appeared at the coronation of the king, notwithstanding the prohibition.
Richard set out at length for the Crusades, leaving as Regent during his absence his mother Eleanor, who had excited the princes her sons to rebellion against the king their father; and he associated the Bishops of Durham and Ely with her in the regency. The tyranny of the Bishop of Ely spread confusion throughout England; he placed his colleague under arrest, and governed alone with boundless arrogance, until at last Prince John had him deposed by a council of barons and prelates. Richard, on his return from the Crusades, was, as is well known, detained prisoner in Austria, from the 20th of December, 1193, to the 4th of February, 1194, when he recovered his liberty by the devotedness of one of his vassals. The power of feudal feelings and ties was also manifested in the eagerness of his subjects to pay his ransom. Richard, when restored to his kingdom, spent the remainder of his life in continual wars in France, and died, on the 6th of April, 1199, of a wound received at the siege of the castle of Chalus, near Limoges, while endeavouring to gain possession of a treasure which, it was said, the Count of Limoges had found.
During the reign of Richard, the liberties of the towns and boroughs, which had commenced under William Rufus, made considerable progress, and prepared the way for that decisive advance of national liberties and representative government in England—the Great Charter of King John.
Lecture III.
Anglo-Saxon institutions.
Effects of the Norman Conquest upon Anglo-Saxon institutions.
Effects of the Conquest upon Norman institutions.
Causes which made the Norman Conquest favourable to the
establishment of a system of free institutions in England.
Effects Of The Norman Conquest.
After having given a summary, in the preceding lecture, of the principal historical facts, we are now about to survey Anglo-Norman institutions during the period to which we have just turned our attention, namely, from the middle of the eleventh century until the end of the twelfth.
How came it that free institutions were established from this time forth among this people, and not in other countries? The answer to this question may be found in the general facts of English history, for institutions are much more the work of circumstances than of the texts of laws.
The States which were founded in Europe, from the fifth to the seventh century, were established by hordes of wandering Barbarians, the conquerors of the degraded Roman population. On the side of the victors, there existed no fixed and determinate form of social life; on the side of the vanquished, forms and institutions crumbled into dust; social life died of inanition. Hence arose long disorders, ignorance and impossibility of a general system of organization, the reign of force, and the dismemberment of sovereignty.
Nothing of the kind occurred in England in the eleventh century, in consequence of the Norman Conquest. A Barbarian people which had already been established in a country for two hundred years conquered another Barbarian people which had been territorially established for six hundred years. For this reason, many decisive differences may be observed between this conquest and those which took place on the Continent.
Resemblance Of The Two Peoples.
1. There was much more resemblance, and consequently much more
equality, between the two peoples; their origin was the same,
their manners and language were analogous, their civilization
was almost identical, and the warlike spirit was as powerful
among the vanquished as among the victors. Thus, two nations
under almost similar conditions, found themselves in presence
of one another, and the conquered nation was able, as well as
disposed, to defend its liberties. Hence arose many individual
evils, but no general and permanent abasement of one race
before the other. Oppressed at first, but retaining its warlike
character, the Saxon race offered an energetic resistance, and
gradually raised itself from its inferior position.
2. The two peoples also possessed political institutions of a
singularly analogous nature, whereas elsewhere, in France and
in Italy, the Roman populations, to speak the truth, possessed
no institutions at all. The communes and the clergy were
required to maintain, even obscurely, the Roman law among
societies on the Continent; whereas in England, Saxon
institutions were never stifled by Norman institutions, but
associated with them, and finally even changed their character.
On the Continent, we behold the successful sway of barbarism,
feudalism, and absolute power, derived either from Roman or
ecclesiastical ideas. In England, absolute power was never able
to obtain a footing; oppression was frequently practised in
fact, but it was never established by law.
3. The two peoples professed the same religion; one had not to
convert the other. On the Continent, the more Barbarian victor
adopted the religion of the vanquished, and the clergy were
almost entirely Romans; in England, they were both Saxons and
Normans. Hence resulted an important fact. The English clergy,
instead of enrolling themselves in the retinue of the kings,
naturally assumed a place among the landed aristocracy, and in
the nation. Thus the political order has almost constantly
predominated in England over the religious order; and ever
since the Norman Conquest, the political power of the clergy,
always called in question, has always been on the decline.
Sources Of The English Government.
This is the decisive circumstance in the history of England—the circumstance which has caused its civilization to take an altogether different course to that taken by the civilization of the Continent. Of necessity, and at an early period, a compromise and amalgamation took place between the victors and the vanquished, both of whom had institutions to bring into common use; institutions more analogous than existed anywhere else—stronger and more fully developed, because they belonged to peoples which had already been territorially established for a considerable time.
Thus, Saxon institutions and Norman institutions are the two sources of the English government. The English commonly refer their political liberties to the former source; they see that, on the Continent, feudalism did not produce liberty; and they attribute their feudalism to the Normans, and their liberty to the Saxons. This distinction has even become a symbol of modern political parties; the Tories, in general, affect a neglect of Saxon institutions, whilst the Whigs attach to them the greatest importance. This view of events appears to me to be neither exact nor complete. Saxon institutions were not, by themselves, the principle of English liberties. The forced assimilation of the two peoples and of the two systems of institutions, was their true cause. There is even room for doubt whether, without the Conquest, liberty would have resulted from Saxon institutions; and we may believe that they would have produced in England results analogous to those which occurred on the Continent. The Conquest inspired them with new virtue, and caused them to produce results which, if they had been left to themselves, they would not have produced. Political liberty issued from them, but was begotten by the influence of the Conquest, and in consequence of the position in which the Conquest placed the two peoples and their laws.
I will now recall to your recollection Anglo-Saxon institutions as they existed before the Conquest; and you will soon see that it was the forced approximation of the two peoples which gave them vitality, and brought forth the liberties of England.
Anglo-Saxon Institutions.
Among local institutions, some were based upon common deliberation, and others upon hierarchical subordination; that is to say, some upon a principle of liberty, and others upon a principle of dependence. On one side, were the courts of hundred and the county-courts; on the other, the great landowners and their vassals: every man of fourteen years old and upwards was obliged to belong either to a hundred or to a lord, that is, to be free or vassal. These two hostile systems, then, placed in presence of one another, conflicted as upon the Continent. There is some doubt about the question whether, before the Conquest, feudalism existed with regard to lands: that it existed with regard to persons there can be no doubt, for their hierarchical classification was real and progressive. In localities, although the system of free institutions subsisted, the system of feudal institutions was gaining ground; seignorial jurisdictions were encroaching upon free jurisdictions; and almost the same process, in fact, was going on as upon the Continent.
If we look at central institutions, we observe the same phenomenon. On the Continent, feudalism was produced by the aggrandizement of the king's vassals, and by the dislocation of the sovereignty. The national unity, which resided in the assembly of the nation, became dissolved; the monarchical unity was unable to resist; and monarchy and liberty perished together. Events had taken the same course among the Anglo-Saxons. Under Edward the Confessor, the decay of the royal authority is evident. Earl Godwin, Siward, Duke of Northumberland, Leofric, Duke of Mercia, and many other great vassals, are rivals rather than subjects of the king; and Harold usurping the crown from Edgar Atheling, the legitimate heir, bears a strong resemblance to Hugh Capet. The sovereignty tends to dismemberment. Monarchical unity is in danger; national unity is in the same declining state, as is proved by the history of the Wittenagemot. This general assembly of the nation was at first the assembly of the warriors; afterwards the general assembly of the land-owners, both great and small; and at a later period, the assembly of the great land-owners alone, or of the king's thanes. Even these at last neglect to attend its meetings; and isolate themselves upon their estates, in which each of them exercises his share of the dismembered sovereignty. This is almost identical with the course of affairs on the Continent. Only, the system of free institutions still subsists in England with some energy in local institutions, and especially in the county-courts. The feudal system is in a less advanced state than on the Continent.
Norman Institutions.
What would have happened if the Conquest had not occurred? It is impossible to say with certainty, but probably just what happened on the Continent. The same symptoms are manifested, the decay of the royal authority and of the national assembly; and the formation of a hierarchical landed aristocracy, almost entirely independent of the central power, and exercising almost undisputed sovereignty in its domains, excepting only feudal liberties.
While Anglo-Saxon institutions were in this state, the Normans conquered England. What new elements did they introduce, and what effect did the Conquest produce upon the Saxons?
The feudal system was completely established in Normandy; the relations of the duke with his vassals, the general council of the barons, the seignorial administration, of justice, the superior courts of the duke, were all organized already. This system is impracticable in a large State, especially when manners have made but little progress; it leads to the dislocation of the State and of the sovereignty, and to a federation of powerful individuals, who dismember the royal power. But in a State of limited extent, like Normandy, the feudal system may subsist without destroying unity; and notwithstanding William's continual wars with some of his vassals, he was in very reality the powerful chieftain of his feudal aristocracy. The proof of this is contained in the very enter prize upon which he led them. He had, say the chronicles, from forty to sixty thousand men, of whom twenty-five thousand were hired adventurers or men who joined his standard in the hope of obtaining booty. He was not a leader of Barbarians, but a sovereign undertaking an invasion at the head of his barons.
After the Conquest and their territorial establishment, the bonds which united the Norman aristocracy were necessarily drawn still closer together. Encamped in the midst of a people who regarded them with hostility and were capable of vigorous resistance, the conquerors felt the need of unity; so they linked themselves together, and fortified the central power. On the Continent, after the Barbarian invasions, we hear of hardly any insurrections of the original inhabitants: the wars and conflicts are between the conquerors themselves; but in England they are between the conquerors and the conquered people. We indeed meet, from time to time, with revolts of the Norman barons against the king; but these two powers generally acted in concert, for their interest was their bond of union. Moreover, William had found a royal domain of large extent, already in existence: and it received immense increase from confiscations of the lands of Anglo-Saxon rebels. Although the spoliation was not universal, it was carried out with unexampled promptitude and regularity. William soon had 600 direct vassals, nearly all of whom were Normans, and his landed property was divided into 60,215 knight's fees, a large quantity of which frequently belonged to the same master; for example, Robert de Mortaigne alone possessed 973 manors, the Earl of Warrenne 278, and Roger Bigod 123; but they were all scattered through different counties, for though the prudent William was willing to make his vassals rich, he was not desirous of making them too powerful.
Cohesion Of The Norman Aristocracy.
Another proof of the cohesion of the Norman aristocracy is supplied by the Doomsday Book; a statistical account of the royal fiefs, and register of the demesne lands and direct vassals of the king, which was begun in 1081 and terminated in 1086: it was compiled by royal commissioners. King Alfred had also directed the compilation of a similar register, but it has been lost. Nothing of the kind was ever done in any other country.
The same cause which rendered Norman feudalism in England more compact and regular than on the Continent, produced a corresponding effect upon the Saxons. Oppressed by a powerful and thoroughly united enemy, they formed in serried ranks, constituted themselves into a national body, and clung resolutely to their ancient laws. And in the first instance, the establishment of William did not appear to have been entirely the work of force; there were even some forms of election; after the battle of Hastings, the crown was offered to him by the Saxons, and at his coronation at Westminster, he swore to govern the Saxons and Normans by equal laws. After this period, we incessantly find the Saxons claiming to be ruled by the laws of Edward the Confessor, that is to say, by the Saxon laws, and they obtained this right from all the Norman kings in succession. These laws thus became their rallying point, their primitive and permanent code. The county-courts, which continued to exist, also served to maintain the Saxon liberties. Feudal jurisdiction had made but little progress among the Saxons; it received extension on the arrival of the Normans; but it had no time to strike deep root, for it found itself limited on the one hand by the county-courts, and on the other by the royal jurisdiction. On the Continent, the royal authority conquered judicial power from feudalism; in England, the royal authority was superimposed upon the county-courts. Hence arises the immense difference between the two judicial systems.
Lastly, the Saxons still possessed landed property, which they defended or claimed in reliance upon titles anterior to the Conquest, and the validity of these titles was recognised.
Results Of The Norman Conquest.
To sum up the whole matter, the Norman Conquest did not destroy right among the Saxons, either in political or civil order. It opposed in both nations that tendency to isolation, to the dissolution of society and of power, which was the general course of things in Europe. It bound the Normans to one another, and united the Saxons among themselves; it brought them into presence of each other with mutual powers and rights, and thus effected, in a certain measure, an amalgamation of the two nations and of the two systems of institutions, under the sway of a strong central power. The Saxons retained their manners as well as their laws; their interests were for a long time interests of liberty, and they were able to defend them. This position, far more than the intrinsic character of Saxon institutions, led to the predominance of a system of free government in England.
Lecture IV.
The English Parliament in the earliest times of the
Anglo-Norman Monarchy.
Different names given to the King's Great Council.
Its characteristics.
Its constitution.
Opinions of Whigs and Tories on this subject.
Powers Which Rule Society.
You have already seen what was the influence of the Norman Conquest on the political destinies of England; and what was the position in which the two peoples were placed by it. They did not unite, nor did they mutually destroy one another. They lived in a state of national and political conflict, the one people being invested with a large power of government, while the other was far from being destitute of the means of resistance. We have now to enquire what were those institutions upon which this struggle was founded. We shall not concern ourselves with all the institutions which then existed in society: we are now looking for the sources of representative government, and are therefore at present only interested in those in which the germs of a representative system existed.
Division Of Powers In England.
In order to determine with some precision the object of our study, it will be necessary to form some idea of the different functions of the power which is applied to the government of society. In the foremost rank is presented the legislative power, which imposes rules and obligations on the entire mass of society and on the executive power itself. Next appears the executive power, which takes the daily oversight of the general business of society—war, peace, raising of men and of taxes. Then the judicial power, which adjusts matters of private interest according to laws previously established. Lastly, the administrative power, charged, under its own responsibility, with the duty of regulating matters which cannot be anticipated and provided for by any general laws.
During three centuries these powers have tended to centralization in France; so much so, that if we would study the government of the country we must attend to them all, for they were all united and limited to the same individuals. Richelieu, Louis XIV, the Revolution, Napoleon, though in different positions, seem to have inherited the same projects and moved in the same direction. Such has not been the case in England. The administrative power there, for example, is to the present time divided and subdivided; it belongs either to those who are themselves interested in its movements, or to local magistrates, independent of the central power of the State, and forming no corporation among themselves. The judicial power itself is divided. It was so to some extent, through another and stronger cause, in the earlier times of England's social life, as in all societies which have made but small advancement. Different powers are then not only distributed but commingled. The legislative power is no more central than others: its functions are continually usurped by local powers. Judicial power is almost entirely local. Centralization commences with the executive power properly so called, and this for a long time remains the only one in which any centralizing tendency is found. The proof of this is furnished by the feudal system, when almost all powers—those connected with justice, militia, taxes, &c.—were local, although the feudal hierarchy had at its head the king, and the assembly of the most important possessors of fiefs.
In this distribution and confusion of powers at the period we are considering, the institutions which we have especially to study in order to find the origin of representative government, are those which were central, that is to say, the Parliament and the king. On the Continent, centralization has resulted from an absolute power which has broken up and absorbed all local powers. In England, on the other hand, local powers have subsisted after a thousand vicissitudes, while they have increasingly regulated and defined their own action. A central government has emanated from them by degrees—it has progressively formed and extended itself. We shall trace this formation step by step, and shall only study local institutions as they relate to this one fact; and we shall see that this circumstance has been the principal cause of the establishment of a free government in England.
The Anglo-Norman Parliament.
It is easily presumed that, in such a state of society, no other central institution, properly so called, existed for a long time, except royalty. There are certain maxims, certain habits of central political action, but no constant rule: the facts are varied and contradictory. Men of considerable influence, almost sovereigns in their own domains, are much less desirous of any participation in the central power; they rather attempt to defend themselves from it as often as it infringes upon their interests, than endeavour at all to control it beforehand, and to act upon it in a general manner. As in France, at the end of the Carlovingian dynasty, a king can hardly be met with, so in England, under the first Norman kings, a Parliament can hardly be found. That which existed bearing any resemblance to one differs but little from the Saxon Wittenagemot in the form which belonged to it immediately before the Conquest, or from the Council of Barons in Normandy. We find in the works of historians, and in charters, the following names: Curia de more, Curia regis, Concilium, Magnum Concilium, Commune Concilium, Concilium regni. But these are to be regarded only as vague expressions which designate assemblies, without giving any clue by which to determine their constitution and their power. Hale sees in them "a Parliament as complete and as real as has ever been held in England." Carte and Brady see in them only tribunals, privy councils dependent upon the king, or pompous gatherings for the celebration of certain solemnities. It will be better for us to examine each of these words, and seek for the actual facts which correspond to them in the period to which our attention is directed.
According to the Tories in general, the words Curia de more, or Concilium, Curia regis, Magnum or Commune Concilium, represent different assemblies. Concilium is a privy council composed of men chosen by the king to serve him in the government. This Concilium was at the same time Curia regis, a tribunal to judge of matters brought before the king, and presided over by him, or, in his absence, by the chief justice. It was called also Curia de more, because its assemblies were held, according to ancient usage, three times in the course of the year, at Easter, Whitsuntide, and Christmas, and was even adjourned regularly from one period to another, as is done to the present day by the Courts at Westminster.
According to the Whigs, all these words originally designated, and continued to the reign of Henry II. (1154-1189) to designate the general assembly of the nobles of the kingdom, who necessarily assembled before the king in order to try cases, to make laws, and to give their concurrence to the government.
The first of these opinions puts too great a restraint upon the meaning of the words; the second generalizes too much on isolated facts, and assigns to them an importance which does not belong to them.
The Curia De More.
Curia de more, Curia regis, signified originally neither the merely privy council of the king nor his tribunal; it was evidently a grand assembly at which all the nobles of the kingdom were present, either to treat of the affairs of State, or to assist the king in the administration of justice. "The king," says the Saxon Chronicle, "was wont to wear his crown three times a year—at Easter in Winchester; at Whitsuntide in Westminster; at Christmas in Gloucester; and then there were present with him all the great men of all England, archbishops and bishops, abbots and counts, thanes and knights."—"A royal edict," says William of Malmesbury, "called to the Curia de more all the nobles of every grade, in order that those sent from foreign countries might be struck with the magnificence of the company, and with the splendour of the festivities."—"Under William Rufus," says Eadmer, "all the nobles of the kingdom came, according to usage, to the king's court, on the day of our Saviour's nativity." Anselm, Archbishop of Canterbury, having presented himself ad Curiam pro more, "was received with joy by the king and all the nobility of the kingdom." In 1109, at Christmas, "the kingdom of England assembled at London, at the court of the king, according to custom."
The Curia Regis.
Curia regis designates generally the place of the king's residence, and by an extension of meaning the assembly held in that place; this assembly was general, and not a mere gathering of permanent judges. William I., summoning the Dukes of Norfolk and Hereford to attend and receive judgment in Curia regis, "convoked," says Ordericus Vitalis, "all the nobility to his court." Several judicial assemblies held under William Rufus, are called ferme totius regni nobilitas, totius regni adunatio. Facts and expressions of the same kind are to be found in documents of the time of Stephen. Even under Henry II., when the Court of King's Bench had already become a distinct tribunal, the expression Curia regis is applied to the general assembly collected for the transaction of public business. Henry convoked his Curia at Bermondsey, cum principibus suis de statû regni et pace reformandâ tractans. The second of the Constitutions of Clarendon orders all the immediate vassals of the crown interesse judiciis curiæ regis. The great Council of Northampton, which passed judgment in the complaints of the crown against Becket, is called Curia regis; it comprised not only the bishops, counts and barons, but besides these, the sheriffs and the barons secundæ dignitatis. Lastly, under Richard I., the general assembly of the nobles of the kingdom is still called Curia regis in the trial of the Archbishop of York: "On this occasion there were present the Earl of Morton and almost all the bishops, earls and barons of the kingdom."
A little consideration will show us the inferences to be drawn from all these facts. At this period the legislative and judicial powers were not separated; both of them belonged to the assembly of the nobles, as they had previously belonged to the Wittenagemot of the Saxons. When deliberations with reference to a subject or personage of importance were required, this was the assembly that judged, as it interposed on all great occasions in the government. Thus all these different expressions denote originally the same assembly, composed of the nobles of the kingdom who were called to bear their share in the government.
How did they interpose? What power, what functions belonged to them?—these are questions which were futile at that time: for no one then had determinate functions, but everything was decided according to fact and necessity. The facts are these: "It was the ancient usage that the nobles of England should at Christmas time meet at the king's court, either to celebrate the festival, or to pay their respects to the king, or to deliberate concerning the affairs of the kingdom." We find that these assemblies were occupied in legislation, in ecclesiastical affairs, in questions of peace and war, in extraordinary taxes, in the succession of the crown, in the domestic affairs of the king, his marriage, the nuptials of his children, dissensions in the royal family, in one word, in all matters of government, says Florence of Worcester, whenever the king did not feel himself strong enough to settle them without the assistance of the general assembly, or when the mode in which he had settled them had excited complaints in sufficient number to admonish him of the necessity of taking the advice of others.
Tenure Of These Assemblies.
As to the holding of these assemblies, they were not regular: the Whigs have attached too much importance to the three periods mentioned as the times of their annual convocation: these gatherings were rather of the nature of solemnities, or festivals, than public assemblies. The king at that time considered it very important that he should exhibit himself surrounded by numerous and wealthy vassals, species multitudinis; his force and dignity were thereby displayed, just as that of every baron was exhibited in his own dominions. Besides, under Henry II. and Stephen, these three epochs ceased to be regularly observed. The Tories, on the other hand, not considering the gatherings called Curiæ de more and Curiæ regis as political assemblies, have represented them as extremely infrequent, which they were not; there is not a single reign, from the Conquest to the times of King John, in which several instances of them are not to be found; only there was nothing settled and fixed in this respect.
Constitution Of These Assemblies.
The question of the constitution of these assemblies remains. Historians and charters say nothing definite on this point: they speak of their members as magnates, proceres, barones, sometimes asmilites, servientes, liberi homines. There is every reason to suppose that the feudal principle was here applied, and that, as a matter of right, all the immediate vassals of the king owed to him service at court as well as in war. On the other hand, the number of the vassals attached to the crown under William I. exceeded 600; and there is no reason for believing that all these would present themselves at the assembly, nor are there any facts to indicate that they did so. It had already become, for the most part, rather an onerous service than a right; accordingly they only presented themselves in small numbers.
The word most frequently employed is barones: it would appear to have been originally applied to all the direct vassals of the crown, per servitium militare, by knightly service; we find that the use of the word was limited more and more till it was applied almost exclusively to those vassals of the crown who were sufficiently wealthy and large proprietors to have a court of justice established in the seat of their barony. It is even difficult to admit that this last principle was generally followed. The name of barones was finally applied only to those immediate vassals who were so powerful that the king felt himself obliged to convoke them. There was no primitive and constant rule to distinguish the barons from other vassals; but a class of vassals was gradually formed who were more rich, more important, more habitually occupied with the king in affairs of state, and who came at last to arrogate to themselves exclusively the title of barons.
The bishops and abbots also formed part of these assemblies, both as being heads of the clergy, and as immediate vassals of the king or of the barons.
No trace of election or of representation is to be found, either on the part of the king's vassals who did not present themselves at the assembly, or on the part of the towns. These last had in general suffered very greatly by the Norman Conquest. In York the number of houses was reduced from 1607 to 967; in Oxford from 721 to 243: in Derby from 243 to 140; in Chester from 487 to 282.
These, then, are the essential facts which we may gather with reference to the constitution and power of the King's Court, or general assembly of the nobles of the nation. We see how little influence must have been exerted by an assembly of so irregular a character; and we shall see this still more strikingly illustrated when we have brought it into comparison with the rights, the revenues, and all the powers which were at that time enjoyed by royalty.
Lecture V.
The Anglo-Norman royalty: its wealth and power.
Comparison of the relative forces of the Crown and of the
feudal aristocracy.
Progress of the royal power.
Spirit of association and resistance among the great barons.
Commencement of the struggle between these two political forces.
Wealth Of The King.
In order to judge accurately of the power and importance of royalty at the period we are considering, we must first ascertain its actual position and resources; and we shall see by the extent of these resources, and by the advantages of this position, how feeble in its action on the royal power must have been the influence of the assembly of barons.
The riches of the Norman king were independent of his subjects; he possessed an immense quantity of domains, 1,462 manors, and the principal towns of the kingdom. These domains were continually being augmented, either by confiscations, causes for which were of frequent occurrence, or by the failure of lawful heirs. The king gave lands on a free tenure to those cultivators who would pay for them a determinate rent (free socage tenure). This was the origin of most of the freeholders, whether in the king's domains or in those of his barons. The king, in his domains, imposed taxes at will; he also arbitrarily imposed custom-house regulations on the importation and exportation of merchandize; and he fixed the amount of fines and of the redemption money for crimes. He sold public offices, among others that of sheriff, which was a lucrative one on account of the share in fines which belonged to it. The county sometimes would pay for the right to nominate its sheriff, or to avoid a nomination already made. Lastly, the sale of royal protection and justice was a source of considerable revenue.
Duties Of The Royal Vassals.
As to the immediate vassals of the king, they owed him,
First, a military service of forty days whenever it was
required;
Secondly, pecuniary aid under three circumstances,—to
ransom the king when made prisoner, to arm his eldest son as a
knight, or to marry his eldest daughter. The amount of this aid
was undetermined up to the reign of Edward I.; it was then
fixed at twenty shillings for the fief of a knight, and as much
for every twenty pounds sterling value in land held in socage
tenure.
Thirdly, the king had a right to receive from his
vassals a relief or fine on the death of the possessor of a
fief; he was guardian if the heir were a minor, and enjoyed all
the revenues of the fief till the majority of the heir; he also
had a control over their marriages, that is to say, the vassal
of a king could not marry without his consent. All these rights
were indeterminate, and negotiations were substituted for them
in which the greater force always had the advantage.
Fourthly, the dispensation from feudal military service
gave rise to an impost termed escuage, a kind of
ransom-money fixed arbitrarily by the king, as representative
of a service to which he had a claim; and he even imposed it in
many cases on his vassals when they would have preferred to
serve in person. Henry II., by his purely arbitrary will,
levied five escuages in the course of his reign.
In addition to these taxes levied by the king, another must be mentioned called the danegeld, or tax paid for defence against the Danes; this tax was raised several times during this period on all lands throughout the kingdom. The last example of it is to be found in the twentieth year of the reign of Henry II.
By means of these independent revenues and arbitrary taxes, the Norman kings constantly kept up bodies of paid troops, who could enable them to exercise their power without restraint, which did not take place till a considerably later period on the Continent.
Lastly, from William the Conqueror till Henry II. the judicial power tended always to concentrate itself in the hands of the king. In this last reign the work was very nearly accomplished: how this came to pass, I will endeavour to show.
Originally the jurisdictions that co-existed were as follows:
1. The courts of hundred and the county-courts, or meetings of
the freeholders of these territorial subdivisions, under the
presidency of the sheriff:
2. The courts-baron, or feudal jurisdictions:
3. The grand court of the king, where the king and the
assembled barons administered justice to the barons in cases
between any of themselves, or in cases of appeal, which could
only take place when justice had been refused in the court of
the manor or county.