Copyright
Henry Offley Wakeman.

Essays introductory to the study of English constitutional history online

. (page 1 of 23)
Online LibraryHenry Offley WakemanEssays introductory to the study of English constitutional history → online text (page 1 of 23)
Font size
QR-code for this ebook


^\




ESSAYS



INTROniTTORY TO THE STUDY OF



ENGLISH CONSTITUTIONAL HISTORY



ESSAYS

INTRODUCTORY TO THE STUDY OF

ENGLISH CONSTITUTIONAL HISTORY

BV

RESIDENT MEMBERS OF THE UNIVERSITY OF OXFORD



EDITED BV

HENRY OFFLEY WAKEMAN, M.A.

\\

FELLOW OP ALL SOULS COLLEGE, TUTOR OP KKBLB COLLEGE
AND

ARTHUR HASSALL, M.A.

TUDEMT AND TCTUk OP CHK1ST CHUKCH



LONDON
LONGMANS, GREEN, & CO.

AND NEW YORK: 15 EAST 16* STREET
1894

[New Edition}



PREFACE.

THE writers of the Essays contained in this volume
do not pretend that it is the result of original research,
or that it will throw any additional light on the many
unsolved problems of English Constitutional History.
Their object is the much humbler one of trying to
arrange the well-ascertained facts connected with the
growth of our institutions in such a way as may
make the study of them more intelligible, and more
attractive to beginners. Each Essay attempts to
bring into strong relief the central principle of con-
stitutional development which is characteristic of the
period of which it treats ; and is complete in itself,
although a certain unity and chronological order is
preserved throughout.

The picture of the growth of the Constitution thus
presented is doubtless rather a photograph than a
portrait. The leading features are brought into ex-
ceptional prominence at the expense of due harmony,
and occasionally, perhaps, of fidelity of effect. Some
features are thrown too much into the background,
or are altogether obscured. In a work confessedly
introductory to a subject so difficult as Constitutional
History, it was thought worth while to run the risk
of much unevenness and inadequacy of treatment in



vi Preface.

order to gain, if possible, the compensating advan-
tages of clearness and simplicity. Whether the
experiment has succeeded it will be for the reader
to judge.

The Constitutional History of Dr. Stubbs has, with
his permission, been taken throughout as the founda-
tion of the work ; and references to it, therefore, have
not been inserted. To the kindness of Dr. Stubbs in
looking over the proofs of this volume, and to his
ready sympathy and help accorded to them in their
undertaking, the authors wish to express their deep
obligation. They are sensible how much of what
there may be of value in the following pages is due
to his suggestion and criticism.

OXFORD, September, 1886.



IN preparing a Second Edition for the press, little
alteration has been found necessary except in the
first Essay, on the subject of which a good deal of
light has been thrown by recent research. The wide
and accurate knowledge of the Rev. A. H. Johnson,
Tutor of Merton University and Trinity Colleges, has
been of great assistance in the revision of this part of
the work, and requires special recognition and thanks.

OXFORD, January, 1891.



CONTENTS



I. THE EARLY ENGLISH CONSTITUTION

H. HENSLEY HENSON, M.A., Fellow of All Souls College i



II. FEUDALISM

W. J. ASHLEY, M.A., Professor of Political Economy in
the University of Harvard, formerly Fellow of Lincoln
College 45

III. THE ANGLO-NORMAN AND ANGEVIN ADMINIS-
TRATIVE SYSTEM (1100-1265)
C. \V. C. OMAN, M.A., Fellow of All Souls College . . 113

IV. PARLIAMENT

DUDLEY JULIUS MEDLEY, M.A., Tutor of Keble

College 159

V. CONSTITUTIONAL KINGSHIP (1399-1486)

ARTHUR HASSALL, M.A., Student of Christ Church . . 224

VI. THE INFLUENCE OF THE CHURCH UPON THE
DEVELOPMENT OF THE STATE

HKNRY OFFLEY WAKEMAN, M.A., Fellow of All Soul

College 267



ESSAY I.

THE EARLY ENGLISH CONSTITUTION.

THE Constitutional History of the English General
differs essentially from that of the other Euro- iendfnf y

towards

pean nations. It differs, yet it is not without feudalism.
points of resemblance. In England before the
Conquest, as in the other countries of Europe,
there was a tendency towards that state of
society and government which we call feudalism ;
and that tendency was neither weak nor in-
effective. It worked with such energy as to
convert a constitution founded on personal re-
lations into one permeated from pinnacle to
base with territorialism. And yet, although
this was so, between the England of the eleventh
century and the France of the eleventh century
there existed an essential difference. For in
England there were certain forces hostile to
feudalism which, owing to the circumstances
of early English history, retained their vitality,
and operated as a check on the triumphant
tendency of the age. The deep divisions of the



2 The Early English Constitution.

English, stereotyped, so to say, by the circum-
stances of the conquest of Britain, manifested
themselves in perpetual inter-tribal wars, in
continuous struggles against the supremacy of
any one kingdom, in the local isolation which
handed the country over as a prey to the
northern invaders. The northern invaders them-
selves projected into a half-feudalized society,
a society kindred, indeed, but more primitive,
personal, and free. Beneath all and through all
the Teutonic spirit worked with unique purity,
with unique liberty. These are the great forces
antithetical to feudalism, which operated as such
in the first six centuries of English history.
They are not the dominant forces. The trium-
phant tendency of the age is towards feudalism ;
but they act as checks on that tendency. The
feudalism which is developed naturally on
English soil, the feudalism which the Norman
knights and lawyers remodel into a more
ordered form, is a half-feudalism, a feudalism
awkwardly elevated on a sub-structure of free
institutions and immemorial customs.
The Early The machinery by which a barbarous tribe
governs itself is necessarily of a very simple
description. It involves an anachronism to
bestow on such primitive arrangements the
name of a constitution. It is only when the



TJu Early English Constitution. 3

social state has become complicated, and the
tribe has expanded into a nation, that the need
arises for that careful adjustment of political
power between various classes which we connect
with the idea of a constitution. This general
observation is perhaps less true in the case of
the primitive Germans than of most barbarians ;
for the system described by Tacitus in the
Germania is not without a certain order and
beauty of its own ; yet it would argue ignorance
or folly to credit the primitive Germans with the
constitutional theories of modern times, although
they may truly be regarded as the unconscious
exponents of the same.

At the basis of the Teutonic system lay the Ranks.
threefold division of ranks, (i) The blood-
noble eorl distinguished by the higher pecu-
niary value attached to his life (wergild}, and
by the higher legal value of his oath ; entitled,
doubtless, to a greater share in the conquered
land on account of his nobility, but without
special political rights. (2) The freeman ceorl
possessed of full political rights, his place in
the host and in the folk-moot assured to him, as
also his share in the conquered land, his alod.
(3) The dependent last not fully free, yet not
a slave, with no political rights, but yet personally
free, a cultivator of the land of another the man



4 TJte Early English Constitution.

of a class half-way between freedom and slavery,
and recruited from both, destined, perhaps, with
various modifications, to become the villein of
the Middle Ages. These are the three classes of
the nation. Below them is the slave, the chattel
theow with no rights, until the Church suc-
ceeds in persuading men of his humanity.

Allotment The English, thus divided into ranks, migrated
into Britain, and there planted themselves, re-
producing, we may be sure, the combinations of
their former life, as far as was possible under the

The new conditions of migration and conquest. The
s allotment of the conquered land, which followed
the victory of the tribe, settled the kindred free-
men in free village communities to carry on
agriculture, at first probably on a system of
common cultivation, which, however, in most
cases speedily gave way before the principle of
individual ownership. On the larger allotments
of the kings and eorls the Icets were likewise
grouped in dependent communities, similar in
organization, but owing rent and services to a
lord. And here the system of common cultivation
known as the three-field system long survived in
the later manor. Under this system the arable
land was divided into three common fields : two
were sown with crops every year, and one was
left fallow. The Britons who survived the cata-



T/u Early English Constitution. 5

strophe which robbed them of their land were
probably settled in dependent villages on the
estates of the king and nobles, and on the unal-
lotted land which formed the national property. 1

The townships were grouped into hundreds, The
in combinations which possibly reproduced in
fact as well as in name the existing divisions of
the tribe in its military aspect. More probably,
however, the hundred had already lost its ori-
ginal connection with the host. 8 Each of these
divisions township and hundred possessed its

1 The question as to the origin of the Anglo-Saxon
village or township, and as to the character of the early
system of agriculture, is at the present moment a subject
of much controversy. Those who wish to pursue the
matter further should consult Stubbs, " Constitutional
History," vol. i. ch. iii. 24; ch. v. 39; Maine, "Vil-
lage Communities," lect. iii. ; G. L. von Maurer, " Ges-
chichte der Markenverfassung ;" Fustel de Coulanges,
"Recherches sur quelques Problemes d'Histoire," pp.
145-186, 262, 320-326; Seebohm, " English Village Com-
munity," chs. iv. v. viii. ix. x. xl ; Denman Ross,
"Early History of Land-owning among the Germans;"
Pollock, "Land Laws" (Citizen Series), ch. ii. and
Appendix A ; Vinogradoff, " Early English Land Tenure,*
Clarendon Press ; Earle, " Land Charters," introduction.

1 The origin of the hundred, by some attributed to
a later date, is a matter of much controversy. The
following authorities may be consulted : Stubbs, " Consti-
tutional History," vol. i. ch. ii. 16-18 ; ch. v. 45-47 ;
Stubbs, "Select Charters," p. 68; Fustel de Coulanges,
" Institutions de 1'Ancienne France," vol. ii. p. 195, fl,
224, ft



6 The Early English Constitution.

own court, presided over by its own elected
officers.

The Folk- Above the hundred court stood the Folk-
moot i the popular assembly of the tribe, in
which every freeman had a voice ; while sur-
rounding the king himself stood the assembly
of the Wise Men the Witenagemot.

But as the process of consolidation advanced,
changes took place in the primitive organi-
zation :

(1) The Folk-moot of the once independent

tribe shrank into the shire court of
later times with less extensive powers
4 and a more definite sphere of work

mainly judicial.

(2) The Witenagemot of the smaller nation

became absorbed in that of the conquer-
ing race circling round the victorious
king.

(3) The Folk-moot, or popular assembly of

the rapidly growing nation, lost its
vitality, meeting only from time to time
on some great occasions such as the
coronation of a king when by its shouts
it expressed its approval of that which
had already been decided by the more
aristocratic assembly of the Witan.
ThtKing. Kingship may have been created by the



The Early English Constitution. 7

Conquest; it may have been a more primitive
possession of the race. The statement of
Tacitus, that some German tribes had no kings^
seems to be definitely attached to those tribes
which conquered Britain, by the description
which Beda 1 gives of the old Saxons, and by the
curious return to the earlier form of government
in Wessex, which is recorded to have followed
the death of Cenwalh. 9 But the antiquity of the
institution is of little importance. It is certain
that as soon as they appear in the light of
history the tribes which planted themselves in
Britain without exception were ruled by kings.

The king of the earliest English history is
bound to his people by personal ties. As his
name implies, he is the head of the race, the kin ;
he represents, symbolizes, embodies in a concrete
form the unity of the race. He is both the rex
and the dux of Tacitus, because perhaps he is
always, as Hengest, first dux (heretoga) and
then rex (cyning). 8 Descent from Woden is
claimed by every English king, but it is not his
sacred character so much as his function of
leader in war that forms the basis of his subse-

1 u Hist EccL," v. 10, p. 309, ed. Moberly.
1 Ibid., lib. iv. c. 12.

8 See Anglo-Saxon Chron., sub anno 448 and 455 (Rolls
Edition, voL i. p. 21).



8 Tlie Early English Constitution.

quent power. The early years of the life in
Britain were necessarily years of unceasing war.
The hereditary general exercised habitually his
extraordinary powers. His special privilege,
the possession of a comitatus, now was most
valuable. War multiplied the comites (gesiths) ;
war utilized them ; war gave their lord the power
to reward them. As conquest extended the
borders of his kingdom, the king's power in-
creased. He emancipated himself from close
contact with his subjects and lived remote.
Surrounded with his court of sworn dependents,
guarded by their swords, more and more sepa-
rated from the daily life of his people, beheld by
them from an ever-growing distance, his figure
dilated before their eyes, he became more
terrible and more sacred.

Two events in particular involved a great
development of the kingly power the conversion
of the English, and the consolidation of the
kingdoms.

Influence That Christianity elevated the royal power
Chunk. was tne resu lt not f th e Church's self-abasement,
but of her lofty conception of duty. The great
service she bestowed on the kingship was the
sense of responsibility. She destroyed the divine
descent and substituted the divine mission.
The prestige of a sacred origin was supplanted



The Early English Constitution. 9

by the prestige of a sacred function. In holding
out a lofty ideal of the kingly duty, the Church
wished to raise the kingly character. At the
same time she preached no servile obedience :
the deposition of the bad king was the natural
judgment of Heaven, and accepted as such by
the Church. " You see," wrote Alcuin to Ethel-
red of Northumbria, " how your ancestors, kings
and princes, perished because of their unright-
eousness and rapine and impurity. Fear you
their fate." But perhaps the Church worked in
favour of the crown less directly than indirectly.
In paving the way for national union by her
discipline, her doctrine, and her consolidation
and organization, by counteracting the disruptive
forces which were always threatening to break
up the not yet consolidated realm, far more
than by hedging round with the august rites of
unction and coronation the accession of a new
king, did the Church minister to the growth of
the royal power.

The conquest of Britain had been the work of C



many little kindred tribes, acting in complete kingdoms.
independence of one another; and when the
migration ceased, the eastern half of England
was dotted with small kingdoms, alike in polity
and nearly related in blood, but jealously in-
dependent of outside influences. The extension



io The Early English Constitution.

of the conquest, and the consequent expansion
of these little states over the country, soon
brought them into contact with one another ;
and that contact seems to have been invariably
of a violent nature. The slaves exported from
the island to the Roman market were no doubt
captives taken in these inter-tribal wars. The
tendency towards consolidation began to work.
The tribal kingdoms were grouped into seven or
eight larger kingdoms, forming what we call the
Heptarchy. One kingdom generally acquired
a shadowy supremacy over the others. Kent,
East Anglia, Northumbria, Mercia, Wessex, in
turn exercised some vague supremacy over the
other kingdoms. In the hands of the West-
Saxon kings this vague supremacy was changed
into a permanent dominion.

This process of consolidation no doubt had
its origin in the ambition of individual kings.
The union of the Heptarchic Churches in the
obedience of the Archbishop of Canterbury
led the way to the union of the Heptarchic
kingdoms in the obedience of the King of
Wessex. For long it was doubtful which
kingdom would obtain that supremacy. The
last to attempt the task was the kingdom
of Wessex ; and the supremacy of Wessex
alone became permanent. The rival kingdoms



T/t Early English Constitution. n

had had their day, and were on the decline. Yet
they were still powerful, independent, and irre-
concilably jealous of one another. Something
more than the efforts of Egbert were necessary
before, in any true sense, a kingdom of the
English could be said to exist Such a result
could be brought about by nothing less than
the destruction of the kingdoms, and the extinc-
tion of the local dynasties. The rough hand
of heathen conquest swept away every English
kingdom but one, and that one was Wessex.
Then remained the doubtful duel between the
Dane and the West-Saxon. The ability of the
house of Cerdic gave the victory to the latter.
The treaty of Wedmore (A.D. 879) may be
regarded as both the record of the unification
of the English, and the epitaph of the independ-
ence of the sub-kingdoms.

The northern invaders ministered to the
increase of the royal power in two ways. First,
as we have seen, by destroying possible rivals,
and giving the West-Saxon king the position of
the sole representative of the English race ; in
a word, by rendering* possible the union of the
English under a single rule. But they did more
than this ; they brought about a change in the
character as well as in the position of the king,
and in the extent of his realm. We have said



12 Tlie Early English Constitution.

that the early English king was bound to his
subjects by personal ties. He is emphatically
the head of the race. By what ties shall he
be bound to the alien Northmen whom he
conquers ? Obviously he is not connected with
them by blood-bonds. He is the conqueror of
their country, the lord of their land. That is
his title to their allegiance ; territorial, not
personal. From the time of Edward the Elder,
the king reigns over two classes of subjects by
a twofold title. He is king of the race to
some; he is lord of the land to others. His
position in respect of the one is personal ; in
respect of the other it is territorial.

This dualism contains within itself the seeds
of change. It is clear that one title or the
other will yield ; and the king will be united
to his subjects by an uniform tie ; and it is
equally clear that the title to yield will be the
personal one, because it is not transferable. By
no stretch of imagination can the man of the
Danelaw regard the English king as the head
of his race, of one blood with himself. The
personal title has no elsteticity. Moreover, it
is rapidly becoming obsolete, even among the
English, for even from the earliest times there
had been a notable exception to the general
rule amongst the English themselves. There



The Early English Constitution. 13

had been one class of subjects, and that an
ever-growing class, bound to the king by ties
which were indeed personal, but were not ties
of blood. The right to keep a comitatns, origi- The comi-
nally enjoyed by the greater men of the tribe,
had come to be the peculiar privilege of the
English king. What was the comitatus? It
was a body-guard of volunteers bound by oath
to serve the lord of their choice. They formed
his companions (comites, gesiths) ; he bestowed
on them military equipment, maintenance, pro-
tection, and reward. They returned to him
service and allegiance, the means of gaining
power and of keeping it. The tie which united
the princeps to his comes, the ealdorman to his
gesith, was the oath of allegiance, not the blood-
bond. War has its effect in altering the position
of the comes. The reward of victory necessarily
takes the form of a grant of land. It is not a
beneficinm, although the holder owes military
service to a superior ; for the beneficium is given
as the condition of future work ; the gesith's
grant is given as the reward of past service.
Yet, clearly, the difference will wear away in
time ; and the service of the thegn will be
indistinguishable from that of the feudal knight
or vassal

The increase of the king's power modifies his



14 The Early English Constitution.

relation to his gesiths. They rise in power
absolutely, but relatively to their lord they
sink into a lower condition. No longer com-
panions (gesiths), they become soldiers (thegns].
This land-holding, service-owing thegnhood
constitutes a powerful territorial aristocracy,
which gradually absorbs the older nobility
6f blood, and develops into something almost
identical with the feudal baronage of later times.
Commen- The personal relation originally existing
between the king and his people had been
further undermined by the practice of com-
mendation, a practice which, in the stormy period
of war, was very common. By commendation
a freeman placed himself under the protection
of some powerful person, whom he acknowledged
as his lord, and from whom he received protec-
tion. The freemen were constantly on the
decrease. In a time of perpetual commotion
they had a strong inducement to surrender up
their alods into the hands of an over-lord, often
the king, and receive them back, laden, indeed,
with conditions of suit and service, but guarded
by his powerful protection.

Thus, perhaps, we can understand how easy
was the transition from the personal to the
territorial conception of kingship, how rapidly
the newer relation absorbed the older when



Tlie Early English Constitution. 15

once the commendation of the conquered Danes
had placed the two relations in opposition.
The legislation of the sons of Alfred marks the
transition. It is complete when Edmund (A.D.
943) exacts the oath of fealty from all his
subjects. The English king does not cease to
be the head of the race, but that is not his
most prominent function. The relation between
him and his people is identical with that
between a man and his lord, in a word, it
is a feudal relation. All are to be faithful to
Edmund, " Sicut liomo dcbct esse fidelis domino
suor

The changed position of the king is to be Develop-
traced in different directions : in legislation, in t ^ e r ^ a i
the maintenance of the peace, in the treatment t ffwer -
of the folk-land, the constitution of the Witan,
the assumption of imperial titles.

Alfred's legislation contains the first law of '(i) Treason.
treason ; * the law which separates " treason
against a lord " as the crime for which alone
no money bot could be taken. "If any on*
plot against tlie king's /iff, of himself, or by
harbouring of exiles, or of his men; let him
be liable in his life and all that he has"*
Edmund, as we have seen, asserts that the

1 " Select Charters," 4th edit., p. 62.
1 Ibid., p. 67.



1 6 Tlie Early English Constitution.

king is the lord of his people ; and a law of
Ethelred 1 seems to make absence from the fyrd,
or national levy, when the king in person con-
venes it, a treasonable offence ; the wife of one
hundred and twenty shillings suffices for ordi-
nary neglect of the fyrd. There can be little
doubt that the offence of treason assumed a
special importance in time of war ; and the
fact that the Danes were heathens invests the
English wars against them with a semi-sacred
character. Treason, perhaps, involved apostasy,
for it was an offence against the champion of
the faith.
(2) The Originally the peace, the unwritten covenant

km s > * on which society bases itself, was maintained
ptcue.

by the folk itself; the hundred and the shire
had their own "peace." But from the first
there had existed, side by side with this general
peace of the folk, a limited and special peace,
the grith or mund of the king. As the frith
of the folk was maintained by the national
officers, so the grith of the king was maintained
by the royal officers. The king's peace ex-
tended over the four Roman roads, over rivers
and navigable streams, which are the highways
of commerce. Three times a year, at the great
festivals of Christmas, Easter, and Whitsuntide,
1 " Select Charters,' p. 73.



The Early English Constitution, 17

the king proclaimed his peace over all the
land. The divisions of the shires were deter-


1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Online LibraryHenry Offley WakemanEssays introductory to the study of English constitutional history → online text (page 1 of 23)