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ism he aimed at substituting nationality ; for a polity of
feudal tenures, a polity of national estates ; for feudal
over-lordship, national monarchy ; for a feudal council of
tenants-in-chief, a council of national estates represented
in parliament. The nation so represented he meant to
take into his councils. That " what concerned all ought
to be approved of all, the law of righteousness so requir-
ing, and that common dangers must be met by measures
concerted in common," was his solemn declaration and
the rule of his dealings with his subjects. At the same
time, he meant to keep supreme power in his own hands,
as the circumstances of a time in which there was little
of enlightenment or of general aptitude for politics re-
quired. He had also in his mind the unification of the
island, and he moved in that direction when occasion
served. The real founder of parliamentary government
he was ; and, had he lived, or not been thwarted by the
malice of fortune, he would in all probability have been
the founder of British union. Having to deal as he had
with mutinous nobles, anti-national ecclesiastics, and a
people ignorant of the necessities of state, we cannot


wonder if he sometimes halted in his course of liberalism
or even drew back, gave way to his heat of temper, and
angrily grasping his sceptre did for a moment that which
has exposed him, the founder of constitutional govern-
ment, to the charge of clinging to arbitrary power.

From a conflict with revolution most kings have come
out reactionists. Edward came out a reorganizer enlight-
ened by experience. It seems, indeed, that something
like the instrument used by De Montfort for the purpose
of bringing national opinion to bear in his own favour
had been at once adopted by his antagonist for the pur-
pose of quenching the embers of civil war. Soon after
his accession, at all events, Edward moved in this direc-
tion, seeking always to carry his people with him, and
acting on his principle that in matters of common con-
cernment there should be common counsels. He called
inchoate and tentative parliaments ; provincial parlia-
ments ; parliaments of particular interests, the commer-
cial interest, for example ; parliaments for particular
objects, in one case for the purpose of giving publicity
and solemnity to the trial of a state criminal. But in
1295 1295 he called, for the general business of the kingdom,
a true and essentially perfect parliament, the archetype of
all parliaments to come, consisting of the three estates of
the realm ; the lords, temporal and spiritual, the bishops
and mitred abbots being lords in right of their fiefs ;
the commons, represented by two knights elected by each
county and two burghers elected by each borough ; and
the body of the clergy, represented by their elected proc-
tors. This, afterwards confirmed, disciplined, and devel-
oped by centuries of interaction among its component
forces, especially between the House of Commons and


the crown, is the institution which has extended itself
over the civilized world ; for even where, as in the United
States and in France, the hereditary principle has been
discarded, the essence of parliamentary government has
been preserved. The three estates, lords, commons, and
spiritualty, are the three great contributory bodies or
interests of the realm. It seemed at one time as if there
might also be an estate of merchants taxable in its own
way. Taxation was the chief original function of parlia-
ment as well as its key to power. For advice in govern-
ment the council of magnates continues to exist, but with
declining authority, since the holders of the purse could
enforce attention to their advice.

Parliamentary government in England was not a
solitary birth. National assemblies under the different
names of Parliament, States General, Cortes, Diet, were
elsewhere taking form. Nationality had become con-
scious ; political life was awakening ; great interests,
notably that of commerce, were assuming a definite form ;
kings were learning to lean on the support of their people
in their conflict with the nobility. Of all the seeds thus
sown at the same time, why did one alone take root,
spring up, and become a mighty tree, overshadowing the
nations? Something was due to national character and
to the circumstances under which national character is
formed ; not a little was due to the foster father by whom
in its infancy the institution was tended. But the chief
reason probably was the coalition in the Commons' House
of the representatives of the knights and rural free-holders
with those of the boroughs. The knights were the body of
landed gentlemen, who, in the civil troubles of the last
reign, had come forward to protest against the tardiness


and narrowness of oligarchical reform. Their class com-
prised the lesser barons of the Great Charter, who were
summoned to council in a body through the sheriff, while
the greater barons were summoned personally by the king's
writ, though in all likelihood they rarely took advantage
of the summons. The coalition was natural, because the
knights of the shire and the burgesses in parliament were
alike representatives, while the lords appeared in their
own persons. Nor, in the happy absence of caste, could
there fail to be many ties between the town and the
neighbouring gentry, whose younger sons would find in
the town employment and sometimes wives. Combina-
tion with the landed and military gentry, whose repre-
sentatives were girt with the sword of knighthood, a form
long kept up in the election of knights of the shire, gave
to the representatives of the boroughs a leadership, a
strength, and a confidence, which they would otherwise
have lacked. In Spain, the free cities, unsupported in
the Cortes by such an alliance, after a period of preco-
cious liberty, sank under the despotism of Charles V. and
Philip II. In France, where all the gentry were noblesse
and formed an estate separate from the burghers or Tiers
Etat^ the States General succumbed to the absolute mon-
archy, and rose again in the form of the National As-
sembly only when the classes had been fused by the fire of

Knights of the shire were elected in the county court
by the whole body of freeholders, the sheriff presiding and
acting as returning officer. The burgesses were elected
by their fellow burghers. In the counties freedom of
election was, no doubt, modified as soon as the elec-
tions became important, by the influence of the sheriff.

vin EDWARD I 173

who was appointed by the crown, and of the local mag-
nates ; in the boroughs it would be modified by the
distribution of power among the burghers, which greatly
varied, municipal government being in a state of growth
and transition. Everywhere the process would be rough
and rudimentary. Edward did not omit to enjoin free-
dom of election.

Thirty-seven counties and a hundred and sixty-six
boroughs were represented in the parliament of 1295.
In the boroughs were included all those of royal domain,
and the principal among the ' rest ; the number of bor-
oughs being far greater in the better ordered and more
commercial south than in the wilder north, exposed to the
inroads of the Scotch. But the selection of the boroughs
was now and long afterwards in the hands of the crown,
which afterwards used the power for the purpose of pack-
ing the House of Commons. Hence partly came the
arbitrary and anomalous distribution of borough repre-
sentation which called for the Reform Bill of 1832.

The present constitution of the House of Lords, as well
as the creation of the House of Commons, is traceable to
this reign, and was no doubt connected with Edward's
general policy of merging feudal distinctions in the
nation. Tenancy-in-chief, as a title to a seat, was super-
seded by the king's writ, the hereditary right of the peer
to which was at the same time established. Thus the
House of Lords became what it now remains, a House of
Peers summoned to the council of the nation by heredi-
tary right, and owing their original creation to the
crown. It is an aristocracy of hereditary duty and privi-
lege rather than of birth. For mere birth, indeed, there
seems in the times of the first Edward to have been com-


paratively little regard. One of the king's daughters
married a commoner. All the children of peers have
remained commoners, subject to the common law, though
distinguished socially by titles of courtesy. The privi-
lege' of trial by their own order which the lords have
enjoyed is but the general ordinance of the Great Charter
that every man should be tried by his peers. Through
this institution of the writ issued to the hereditary head
of the house alone, England escaped a noblesse^ the curse
of France, Germany, and Spain. The only approach to
a noblesse was the exclusive use of coats of arms and of
crests by a military rather than a noble class, with the
heraldry and the College of Heralds by which that dis-
tinction was preserved. The king, it appears, chose the
barons who were to receive writs as he chose the boroughs
which were to send members, so that he was the creator
of the House of Lords.

In the plan of Edward's national assembly the clerical
estate was included with the other two, sending its
proctors to represent it as the counties sent their knights,
the towns their burgesses. But it shook itself free ; the
clergy preferred to be an estate apart, with an allegiance
divided between the king and the pope, taxing themselves
separately if they were to be taxed at all. Thus was
born the clerical Convocation, with its two houses, one of
bishops, the other of the lower clergy, which, when the
order lost the privilege of taxing itself and became sub-
ject to the taxing power of parliament, sank into insig-
nificance ; the result being a political ostracism of the
clergy, who as members of a separate estate were ex-
cluded from the House of Commons. Ecclesiastical
interests, however, were well represented by the bishops

viii EDWAKD I 175

and mitred abbots who had seats in the House of Lords,
not as heads of the churcli, but as great feudatories and
counsellors of the realm, balancing the lay element in
number. Churchmen, also, thanks to their superior edu-
cation, their superior aptitude for the business of peace,
and their greater devotion to the crown, continued to be
preferred to the high offices of state. Thus the chyrch
had her full share of power and was kept at the same
time in political union with the realm. The arch-diocese
o± York having asserted its independence of the arch-
diocese of Canterbury, each had its own convocation, and
the severance crippled the action of the church.

Outside the national polity still were the peasantry or
serfs, as in the sequel will be seen. Nor is it likely that
the common craftsmen of the towns would be allowed by
the burgher oligarchy much influence in elections. Of
these unrepresented classes, it should be remembered, the
king was still the only protector.

The local assemblies, those of the shire and the bor-
ough, in which the members of the House of Commons
were elected, form the basis of the system. They re-
tained their local powers, legislative and administrative,
upon an improved footing. Thus with the advantages
of centralization were combined those of a political life
diffused through the whole frame. Parliament at first
combined the representation of localities with that of
great interests or estates. As its power grew it assumed
more of the character of a common council of the whole

Government and the direction of legislation remained
where it was needful the}^ should be, in the king.
Edward, in the partnership between him and the nation,


meant to be the predominant partner. Of parliament
in its infancy the rights and functions were undefined.
The commons met to grant supplies, to give advice to
the king, to inform him about the state and wants of
their districts. In legislation they participated at first
only by way of petition. Their power of granting or
withholding supplies in time gave their petitions force.
By degrees it brought them general control, and at last
the supreme power. When taxation was connected with
representation and with liberty of giving advice or de-
manding redress, the foundation of the constitution had
been laid. Of the judicial power vested in the king and
his council of barons the commons received no share.

At the same time another authority, also national,
was taking definite shape, that of the king's council, the
privy council as it was afterwards named, consisting of
the chosen advisers of the king. This had begun to
acquire importance in the minority of Henry III.; in the
end it became to some extent a regular competitor with
parliament even for legislative power.

Edward's policy on military questions was connected
with his general policy of putting nationality in place of
feudalism. The feudal array of barons bound to service
for forty days and bringing their own retainers into the
field, he did not abolish. But by the statute of Win-
chester he infused new vigour into the organization of
the national militia, the old fyrd called out by the crown
through the sheriff, and under the direct command of the
king. He enforced the assize of arms, requiring every
freeman to be armed according to his means. His tactics,
which combined the action of the yeoman archer with the
feudal horseman, tended in the same direction. Distraint


of knighthood, whereby each holder of a certain number
of acres, no matter by what tenure, was compelled to put
a mailed horseman into the field, also had a tendency to
the creation of a national army in place of a feudal array.
Even the improvement of the navy for the protection of
the coast would, besides its direct object, contribute to
the creation of a force eminently national, the destined
bulwark and glory of the nation. Of mercenaries, under
a patriotic king, we hear no more.

To curb the local powers of lords of manors, and bring
all jurisdictions under that of the royal and national
courts, went forth a commission of Quo Warranto^ calling 1280
upon feudal lords to produce their titles. Then feudal-
ism showed its teeth. Earl Warrenne produced to the
commission as his title a rusty sword, by which, he said,
his ancestors had won, and he meant to keep, his rights.
Earl Warrenne's pedigree as heir of a Norman conqueror
would hardly have borne inspection, and the sword of
Norman conquest was by this time rusty indeed.

The general policy seems to have pervaded the statute 1288
Quia Umptores, regulating subinfeudation. It was en-
acted that upon the alienation of a feudal estate the
dues and services of the purchaser should go not to the
alienor, but to the original grantor or lord paramount ;
the effect of which would be to multiply tenancies-in-
chief, and place more of the holders of land directly
under the crown. It is not so easy to connect with the
general policy the statute De Bonis Conditionalihus guard- 1285
ing against alienation of estates tail, which are the basis
of a hereditary nobility, unless it were that the preserva-
tion of the reversionary rights of the donor was deemed
to be in the interest of the crown.

VOL. 1 — 12


That Edward did not all this alone but had able
men to assist him we may be sure, and in regard to his
legal improvements are expressly informed. But the
men were his choice, and the paramount purpose of super-
seding feudalism by nationality under a patriot king which
pervades the whole policy of the reign, bespeaks the action
of a single mind.

In extending the policy of nationalization to the
church and making it an estate of the realm, liable to
the national burdens, the king's way would be paved by
the unpopularity which the papacy had contracted during
his father's reign as an alien power of extortion ; as well
as by the diminished respect for the clerical and monastic
orders, the growing jealousy of their privileges, and the
increasing impatience of papal exactions which the people
were beginning to betray. Grosseteste and Twenge had
been pioneers of nationality as well as of reform.

The clerical estate as well as the feudal baronage was
to be taught its place and its duty to the nation. Edward
was religious, fully believed in the pope as the father of
Christendom holding the keys of heaven and hell, and
respected the spiritual jurisdiction. But he was not, like
his father, superstitious. When his mother told him that
a blind man had been miraculously restored to sight at
his father's tomb, his answer was that his father would
have been more likely to put out the vagabond's eyes
than to restore them. He could rebuke the pope himself
for setting Christian princes by the ears instead of unit-
ing them in the cause of Christendom. Like St. Louis,
he showed a firm front to papal encroachment, and per-
haps in both cases resolution might spring from the dis-
cerning confidence of sincere religion. Papal pretension

via EDWARD I 179

still towered high. It towered highest, its language did
at least, in Pope Boniface VIII. on the eve of a headlong
fall. Popes were usurping by different devices the nomi-
nation of archbishops of Canterbury, and would fain have
usurped those of the suffragan bishops also. In virtue of
John's surrender, they deemed themselves still sovereigns
of England ; and the crown, sharing with them the spoils
of the English church, was too ready to connive at their
encroachment. Through three archbishops in succession,
of whom the first two were papal nominees, the papacy
strove to dominate in England. Kilwardby, a Dominican
friar, the first member of a mendicant order who held a
place hardly compatible with the vow of poverty, and a
scholastic divine of eminence, proved too weak for his
patron's purpose ; he was made a cardinal and recalled to 1278
Rome. His successor, Peckham, a Franciscan and an 1279
ascetic, who kept six Lents in each year, set out with the
aspiration of playing Becket. As soon as he landed in
England, he held a synod at which he assumed an
aggressive attitude towards the state, and, as a manifesto
of the church's claim to her privileges, ordered copies of
the Great Charter to be hung up in churches. Edward,
backed by parliament, made him take them down again
and apologize for his intervention in secular affairs. It
was time likewise to put a limit to the al^sorption of land
by the church, who, always taking and never giving back,
would have engrossed the wealth of the kingdom, herself
at the same time growing plethoric and unfit for her
spiritual functions. The statute of Mortmain prohibited 1279
all grants of land to ecclesiastical corporations without a
royal license under pain of forfeiture to the lord of the
fief. By the ingenuity of ecclesiastical lawyers attempts


were made to elude the statute, but the legislature chased
evasion through these devices, and henceforth no land
could be acquired by an ecclesiastical corporation with-
out a license in mortmain from the crown. An attempt
to extend the jurisdiction of the church courts over
ecclesiastical patronage and the personal property of
clergymen brought on another collision which ended in
the limitation of ecclesiastical jurisdiction by the statute
1285 or ordinance of Circumspecte Agatis. Church courts,
though they affected to deal with spiritual cases in a
spiritual way, became not less secular in their methods
than the lay courts ; not less vexatious and costly to the
suitor ; not less liable to technical iniquity and chicane.
Henceforth the ecclesiastical courts were to hold pleas only
on matters spiritual, offences for which penance was due,
tithes, mortuaries or death dues, churches and church-
yards, injuries done to clerks, perjury and defamation.
Peckham helped the king by quarrelling with his own
suffragans, and by persecuting the saint and patriot
Thomas Cantelupe, Bishop of Hereford, the friend of
De Montfort, for whom Edward, to prove his liberal senti-
ments, sought the honour of canonization. But the tug
of war came with Winchelsey, a prelate full of the spirit
of his master, Pope Boniface, who proclaimed himself set
by God over all kings and kingdoms. Edward, pressed
by necessities of state, demanded a contribution from the
clergy. The pope had launched a Bull forbidding the
clergy to pay any taxes to the lay power. The high
church theory was that the clergy in every realm, with
their property, were a province apart, belonging to the
dominion of the pope ; that national law was the church's
trustee, national government her executioner. The lay


power, however, in the person of Edward met the pre-
tension of the clergy to be beyond the domain of secular
government in a logical way by putting them out of the
pale of law. The primate's courage, when he was thus 1296
confronted, failed him. He allowed his clergy to pay,
and whatever might be their theory, they never again
practically refused to share the burdens of the state.
The principle had been established that the church in
England was not a dominion apart, but an estate of the
English realm, though with a spiritual head at Rome.
Thus the ecclesiastical polity of England before the con-
quest was almost restored. Edward bore himself through
the struggle with decency, showing nothing of the vio-
lence of Rufus.

This is a memorable era in the history of law. What
had been begun in England under Henry II. is greatly
advanced now. From mere recognition and declaration
of custom, or occasional edicts of kings, we have passed
to legislation in the proper sense of the term ; we come to
a higher stage of civilization, life under fixed law. In
France we have the Estahlissements of St. Louis ; in
Spain, the Siete Partidas of Alphonso the Wise ; in the
kingdom of the Sicilies, Frederick II. and his minister,
Peter De Vineis, have codified the Norman law. If the
baronage of England repelled the Roman law, instinct as
it was with imperialism, her jurists had profited by
its science. It is by Coke, the author of the Insti-
tutes, that Edward I. is called the English Justinian. In
importance as a law-giver he may deserve the name,
though in spirit he was far different from the Byzantine
autocrat. His Tribonian was his chancellor, Burnell,
unlike his master in character if he was licentious and


covetous, but faithful as a public servant, and master of
his craft. Edward had also at his side Francisco Accursi,
son of the great Italian jurist. His own judges would
give him the common law. " Never," says Sir Matthew
Hale, " did the laws in any one age receive so great and
sudden advancement." Not all the ages since, he avers,
have done so much in settling the justice of the kingdom
as was done in the short compass of this reign. Black-
stone concludes an imposing catalogue of Edward's legal
reforms and improvements by observing that " the very
scheme and model of the administration of common jus-
tice between party and party was settled by this king."
From this epoch legal precedent runs. Whatever Accursi
may have contributed in the way of form, in substance
the law of England remained English and not Roman.
The common law held its ground and remained a
strong though uncouth bulwark of personal right and
liberty. What it had received into itself of Roman law
seems to have operated as a sort of vaccination.

With the improvement in the law went improvements
in the judiciary. More regularity was given to the cir-
1285 cuits of the justices in eyre, and their office was made
more properly judicial and less fiscal. In the fiscal part
of their office as collectors of crown revenue by the exac-
tion of dues and fines they had brought on themselves the
suspicion of the people. Like other rulers in those times,
Edward had to contend with corruption in his judges, his
sheriffs, and all officers who handled money.

Now also a lasting form was given to the set of legal
writs which will henceforth be the basis of common law
procedure and learning. Now is born a professional bar,
with promotion from the bar to the bench, and ecclesias-


tics are succeeded as judges by laymen learned in the

The statute of Merchants shows the king's anxiety to 1283,


foster commerce, which besides adding to the wealth of

Online LibraryGoldwin SmithThe United kingdom; a political history → online text (page 13 of 84)