THE OXFORD DEBATE ON FOREIGN SERVICE (1197)

Great importance is rightly assigned to the first instances of 'a constitutional opposition to a royal demand for money',[¹] of which the two alleged earliest cases are 'the opposition of St Thomas to the king's manipulation of the danegeld [1163], and the refusal by St Hugh of Lincoln to furnish money for Richard's war in France [1197]'.[²] These two precedents are always classed together: Dr Stubbs writes of St Hugh's action:

The only formal resistance to the king in the national council proceeds from St Hugh of Lincoln and Bishop Herbert of Salisbury, who refuse to consent to grant him an aid in knights and money for his foreign warfare ... an act which stands out prominently by the side of St Thomas's protest against Henry's proposal to appropriate the sheriff's share of danegeld.[³]

And Mr Freeman repeats the parallel:

Thomas ... withstands, and withstands successfully, the levying of a danegeld.... As Thomas of London had withstood the demands of the father, Hugh of Avalon withstood the demands of the son. In a great council ... [he] spoke up for the laws and rights of Englishmen ... no men or money were they bound to contribute for undertakings beyond the sea.[⁴]

Having already discussed the earlier instance,[⁵] and advanced the view that the Woodstock debate [1163] did not relate to danegeld at all, but to an attempt of the king to seize for himself the auxilium vicecomitis (a local levy) I now approach the later instance.

'This occasion,' we read, 'is a memorable one':[⁶] it is that of an 'event of great importance',[⁷] of 'a landmark in constitutional history'.[⁸] No apology, therefore, is needed for endeavouring to throw some further light on an event of such cardinal importance. But, to clear the ground, let us first define what we mean by 'opposition to a royal demand for money'. However autocratic the king may have been—and on this point there is not only a difference of opinion but a difference in fact corresponding with his strength at any given period—there were limits set by law or custom (or, should we rather say, limits, both written and unwritten?) beyond which he could not pass. 'Domesday', for instance, was a written limit: if the king claimed from a Manor assessed at ten hides the danegeld due from twenty, the tenant need only appeal to 'Domesday' (poneret se super rotulum Winton'). Or, again, if from a feudal tenant owing the forty days' service the king were to claim eighty days, he would be transgressing unwritten custom as binding as a written record. But outside these limits there lay a debatable ground where that elastic term auxilium proved conveniently expansive. It was here that the crown could increase its demands, and here that a conflict would arise as to where the limit should be placed, a conflict to be determined not by law, but by a trial of strength between the crown and its opponents. We have, then, to decide to which of these spheres the action of St Hugh should be assigned, whether to that of the lawyer appealing to the letter of the bond, or to that of the popular leader opposing the demands of the king, though they did not contravene the law. If one may use the terms, for convenience sake, it was a question of law or a question of politics; and only if it was the latter had it a true constitutional importance.

The two chief accounts of the Oxford debate are found in Roger Hoveden and the Magna Vita St Hugonis. As they are both printed in Select Charters, I need not repeat them here. There is, however, an independent version in the Vita of Giraldus Cambrensis, which it may be desirable to add:

In Anglicanam coepit [rex] ecclesiam duris exactionibus debacchari. Unde collecto in unum regni clero, habitoque contra insolitum et tam urgens incommodum districtiore consilio, verbum ad importunas pariter et importabiles impositiones contradictionis et cleri totius pro ecclesiastica libertate responsionis, in ore Lincolnensis tanquam personae prae ceteris approbatae religionis authenticae magis communi omnium desiderio est assignatum (vii. 103-4).

Gerald's editor impugns the correctness of these statements, on the grounds that the assembly was not clerical merely and that the bishop did not speak on behalf of the whole church. But the passage seems to me to refer to a meeting of the clergy in which it was decided that St Hugh should be their spokesman at the council. Of the other objection I shall treat below.

According to Hoveden, Richard asked for either (1) three hundred knights who would serve him, at their own costs, for a year, or (2) a sum sufficient to enable him to hire three hundred knights for a year at the rate of three shillings a day. The Magna Vita, however, implies that the former alternative alone was laid before the council. The grounds on which St Hugh protested are thus given by our two authorities:

Respondit pro se, quod ipse in hoc voluntati regis nequaquam adquiesceret, tum quia processu temporis in ecclesiae suae detrimentum redundaret, tum quia successores sui dicerent, 'Patres nostri comederunt uvam acerbam, et dentes filiorum obstupescunt' (Hoveden).

Scio equidem ad militare servitium domino regi, sed in hac terra solummodo exhibendum, Lincolniensem ecclesiam teneri; extra metas vero Angliae nil tale ab ea deberi. Unde mihi consultius arbitror ad natale solum repedare ... quam hic pontificatum gerere et ecclesiam mihi commissam, antiquas immunitates perdendo, insolitis angariis subjugare (Magna Vita).

Two points stand out clearly—one that St Hugh took his stand on the prescriptive rights of his church, rights infringed by the king's demand; the other, that he spoke for himself alone, not for the church, still less for the barons, and least of all for the nation. Our authorities, however, are so vague that they leave in doubt the precise point 'taken' by the saintly prelate. Mr Freeman, we have seen, confidently assumes that he 'spoke up for the laws and rights of Englishmen'; Miss Norgate holds that he took up the position of Thomas and Anselm as 'a champion of constitutional liberty',[⁹] whatever that may mean; even Dr Stubbs claims that he 'acted on behalf of the nation to which he had joined himself'.[¹⁰]

I venture to think that the clue to the enigma is to be found in quite another quarter. In the chronicle of Jocelin de Brakelond we find a most instructive passage, which refers, it cannot be doubted, to the same episode. The story is told somewhat differently, but the point raised is the same. King Richard, we are told, demanded that knights should be sent him from England, in the proportion of one from every ten due by the church 'baronies'. The servitium debitum of St Edmund's being forty, the abbot was called upon to send four.[¹¹] That the principle of joint equipment, which had been adopted under Henry II in 1157,[¹²] and again I think by Longchamp in 1191,[¹³] was resorted to on this occasion is the more probable because a few years later (1205) we find King John similarly demanding 'quod novem milites per totam Angliam invenirent decimum militem, bene paratum equis et armis, ad defensionem regni nostri'. I admit, however, that it is not mentioned in the other versions of our episode, and Jocelin speaks only of the demand upon the church fiefs. But the point is that when the abbot consulted his tenants as to sending the four knights required, they protested that they were liable to pay scutage, but not to serve out of England.[¹⁴] Now this is a locus classicus on the institution of scutage. Its bearing I shall examine below, after finishing the story. The abbot, we read, finding himself in a strait, crossed the sea in search of the king, who told him that a fine would not avail; he wanted men, not money.[¹⁵]

Surely we have here the key to the position taken by St Hugh. When he claimed that his fief was not bound 'ad servitium militare ... extra metas Angliae' he cannot have referred to the payment of scutage, for that had been paid by his predecessors and himself without infringing the liberties of their church.[¹⁶] He must, therefore, have referred not to 'money', but to personal service outside the realm. But was this exemption peculiar to the church of Lincoln? If we find the same privilege existing at St Edmund's and at Salisbury, may we not infer that the church contingents were only bound to serve in person for 'defence, not defiance',[¹⁷] and that we have here the perfect explanation of the fact that scutage, as commutation for service, is an institution, when it first appears, peculiar to church fiefs? The mediaeval dread of creating a precedent preyed on the abbot as on the saint. From the council of Lillebonne to the Bedford auxilium (1224) it was always the same cry:

Creiment k'il seit en feu tornez

Et en costume seit tenu

Et par costume seit rendu.

It was in this spirit that Hugh of Avalon, I take it, made his stand: other prelates might waive the point, in consideration of the king's necessities, but he, at least, would never allow a standing exemption to be broken through and thus impaired for all time.

His attitude, we are told, proved fatal to the scheme, compelling the king and his ministers to abandon it in impotent wrath. But perhaps his biographer exaggerates the defeat, for the Bishop of Salisbury, we know, had to purchase the king's pardon for his action by a heavy fine, while the Abbot of St Edmund's had to compromise the matter by the payment of a large sum.[¹⁸] It seems probable that similar compromises would be arranged in other cases where the request was not complied with.

If, then, I am right in the solution I offer, St Hugh must have taken the narrowest ground, and have acted on behalf of ecclesiastical privilege, and only incidentally even for that, his protest being limited to his own church.[¹⁹] And, further, it follows that, like St Thomas, he was acting strictly on the defensive. To say that his action affords 'the first clear case of the refusal of a money grant demanded directly by the crown, and a most valuable precedent, for later times',[²⁰] is, I submit with all respect, to set it in a quite erroneous light. In 1197, as in 1163, the crown was trying to infringe on well-established rights, and St Hugh like St Thomas, resisted that infringement, so far as his own rights were concerned, just as he would have resisted an attempt of the crown to deprive his see of a Manor, of feudal services, or of goods. The crown might take its pound of flesh, but more than that it should not have; never, through any action of his, should his church be deprived of its prescriptive rights.[²¹]

Here this article originally closed; but I am tempted to refer to one touching on the same subject which appeared a year later in the pages of the same review.[²²] Alluding to 'the question of foreign service' as a prominent grievance under John,[²³] I wrote:

Ralf of Coggeshall, and Walter of Coventry, assert that the northern barons denied their liability to foreign service in respect of lands held in England. John retorted that the principle had been admitted in the days of his father and his brother, and therefore claimed it tanquam debitum. This justifies the fears expressed sixteen years before by St Hugh of Lincoln, and explains what I termed, in examining his action, the mediaeval dread of creating a precedent.[²⁴]

The final loss of Normandy had, of course, altered the case, but even while it still formed part of an English King's possessions, there must always have been scope for argument as to feudal obligations. To quote once more from the same article:

The question must have been complicated by the growth of the king's dominions. Did the feudatories owe service to the king, as their lord, in whatever war he was engaged? Or were they only bound to follow him as King of England? Or were they, as holding a conquestu, only bound to serve in the dominions of the Conqueror who enfeoffed them, i.e. in England and Normandy?[²⁵]

On the death of the Conqueror, the question would arise for the King of the English and the Duke of the Normans were no longer one and the same. It comes to the front accordingly in a gathering of the barons at Winchester, which Mr Freeman assigns to Easter, 1090.[²⁶] Orderic, here his authority, places it under 1089, and although his chronology is not to be always blindly followed, there is no ground for supposing here that the date is wrong. When he is following out a story or carried on by allusion, Orderic, like other chroniclers, anticipates or wanders in his dates; but this gathering has no connection with what precedes or follows; there is, therefore, nothing to account for his placing it under 1089, if it really belonged to 1090.

But the point to which I would call attention is the nature and intention of this gathering. Orderic writes:

Confirmatus itaque in regno, turmas optimatum ascivit, et Guentoniæ congregatis, quæ intrinsecus ruminabat sic ore deprompsit.

Mr Freeman attaches to the speech that follows no small importance. Holding that the king 'was now ready to take the decisive step of crossing the sea himself or sending others to cross it', he pointed out that:

even William Rufus, in all his pride and self-confidence, knew that it did not depend wholly on himself to send either native or adopted Englishmen on such an errand. He had learned enough of English constitutional law not to think of venturing on a foreign war without the constitutional sanction of his kingdom. In a Gemot [sic] at Winchester, seemingly the Easter Gemot of the third year of his reign, he laid his schemes before the assembled Witan [sic], and obtained their consent to a war with the Duke of the Normans.[²⁷]

Of course, in reading Mr Freeman's works we must reconcile ourselves to 'Gemot' and 'Witan' being thrust upon us at every turn, however radically false a conception these words may convey. At the close of his dealing with this episode, he refers us, as a parallel, to the 'full Gemot' of 1047, in which 'the popular character of the assembly still', we learn, 'impresses itself on the language of history'. Now Orderic describes those who were summoned to our Winchester gathering as 'turmas optimatum'; he makes William begin his speech 'nostri egregii barones'; and he places in his mouth language essentially feudal and Norman:

Nunc igitur commoneo vos omnes, qui patris mei homines fuistis, et feudos vestros in Normannia et Anglia de illo tenuistis [²⁸] ... cœnobia quæ patres nostri construxerunt in Neustria ... Decet ergo ut, sicut nomen ejus [i.e. Willelmi] et diadema gero, sic ad defensionem patriæ inhæream ejus [i.e. Normanniæ] studio.

Mr Freeman expressed astonishment and delight at William's 'constitutional language', and declared that though, in its actual wording, the speech, of course, was Orderic's:

the constitutional doctrines which he has worked into his speech cannot fail to set forth the ordinary constitutional usage of the time. Even in the darkest hour in which England had any settled government at all, etc., etc.[²⁹]

And then follows the usual lament for 'the days of King Eadward', when it was not a 'cabinet', but a crowd, that dealt with the delicate question of peace or war.

Now even the late Professor's most ardent followers cannot represent my criticism here as 'trifling', or unimportant. Mr Freeman, I hold, had misconceived the matter altogether. The whole thing is sheer delusion. William's appeal, as set before us, was not the fruit of studies in English 'constitutional law': it was the appeal of a feudal lord to 'barons' holding by feudal tenure. Should there be any one who feels the slightest doubt upon the question, let him turn to Mr Freeman's own account of the great 'Assembly of Lillebonne'. He could not himself avoid a passing glance at the parallel, when he wrote that 'William the Red had as good reasons to give for an invasion of Normandy as his father had once had to give for an invasion of England'.[³⁰] Contrasting that Assembly (1066) with an English Gemot, he wrote that 'in William's Assembly we hear of none but barons'.[³¹] Precisely. But that remark is equally true of his son's Assembly at Winchester.[³²] And when we learn, a few years later, the composition of his Assembly, we find it admittedly restricted to tenants-in-chief.[³³] Of the two Assemblies, that of Lillebonne revealed a more active opposition, showed more 'parliamentary boldness', than that of Winchester.[³⁴] The latter merely applauded, we read, the King's appeal. Like his father, he appealed to his barons to follow him on foreign service; like him also, he pleaded his wrongs and the justice of his righteous cause.

Of the two, the father seems, as I have said, to have met with more opposition than the son. One might therefore produce an argument ad absurdum, and contend that, on Mr Freeman's showing, an English King was not less, but more, absolute than a Norman Duke. In any case we have now seen that the ideas about 'constitutional usage', and so forth, imported here by Mr Freeman, were nothing but a figment of his brain. The Assembly of Winchester no more resulted from 'English constitutional law' than did the Assembly of Lillebonne, convened for a similar purpose. William Rufus had to deal with barons who could not be anxious to invade Normandy merely to make him Duke of the Normans. If they had any preference in the matter, it would be rather for Robert than for William, for a weak rather than a strong ruler; but, apart from preference, the barons would be loth to engage in internecine warfare merely for the personal advantage of one brother or the other. This was seen in the peaceful close of the invasion by Duke Robert, as with that of Duke Henry half a century later. The question, in short, that arose in 1066, when a Duke of the Normans asked his barons to make him King of the English, arose once more in the days of his son, when a King of the English asked his barons to make him Duke of the Normans.

It was here no question of 'the laws and rights of Englishmen':[³⁵] it was to no folkmoot that William Rufus spoke. When we read of the King in his court, composed of his tenants-in-chief,[³⁶] as surrounded by 'no small part of the nation',[³⁷] when we hear of the mass of 'the Assembly ... crying Yea, yea';[³⁸] when we learn that 'a great numerical proportion, most likely a numerical majority, were natives',[³⁹] we are fairly prepared for the astounding statement that:

The wide fields which had seen the great review and the great homage in the days of the elder William, could alone hold the crowd which came together to share in the great court of doom which was holden by the younger.[⁴⁰]

For we see that in all these fantasies of a brain viewing plain facts through a mist of moots and 'witan', we have what can only be termed history in masquerade.

[¹] Stubbs' Const. Hist. (1874), i. 510.

[²] ibid., p. 577.

[³] Select Charters (1870), pp. 28-9. So too, preface to Rog. Hoveden (1871): 'It may be placed on a par with St Thomas's opposition to Henry II in 1163' (iv., pp. xci-xcii). So also Early Plantagenets (1876), p. 126, and Const. Hist., i. 510.

[⁴] Norm. Conq., v. 675, 695.

[⁵] See above, p. 377.

[⁶] Early Plantagenets, p. 126.

[⁷] Const. Hist., i. 509.

[⁸] ibid., p. 510, and pref. to Rog. Hoveden, iv., pp. xci-xcii.

[⁹] England under the Angevin Kings, ii. 350.

[¹⁰] Early Plantagenets, p. 126.

[¹¹] 'Precepit rex Ricardus omnibus episcopis et abbatibus Angliae ut de suis baroniis novem milites facerent decimum, et sine dilacione venirent ad eum in Normanniam, cum equis et armis in auxilium contra Regem Franciae. Unde et abbatem oportuit respondere de iiii. militibus mittendis' (ed. Camden Soc, p. 63).

[¹²] 'Præparavit maximam expeditionem ita ut duo milites de tota Anglia tertium pararent ad opprimendum Gualenses.' Robert de Torigni.

[¹³] 'Tertium cum omnibus armis totius Angliae militem die nominato mandavit venire Wintoniam.' Ric. Devizes (Rolls Series), p. 409.

[¹⁴] 'Cumque summoneri fecisset omnes milites suos, et eos inde convenisset, responderunt feudos suos, quos de Sancto Ædmundo tenuerunt, hoc non debere, nec se nec patres eorum unquam Angliam exisse, set scutagium aliquando ad praeceptum regis dedisse' (ibid.).

[¹⁵] 'Abbas vero in arcto posito, hinc videns libertatem suorum militum periclitari, illinc timens ne amitteret saisinam baronie sue pro defectu servicii regis, sicut contigerat Episcopo Lundonensi [? Lincolnensi] et multis baronibus Angliæ, statim transfretavit, et ... in primis nullum potuit facere finem cum rege per denarios. Dicenti ergo se non indigere auro nec argento, sed quatuor milites instanter exigenti', etc. (ibid.).

[¹⁶] 'In quibis conservandis sive exhibendis hactenus fere per tredecim annos a rectis praedecessorum meorum vestigiis non recessi' (Magna Vita).

[¹⁷] 'Ad publicam rem tuendam' (Abingdon Cart., ii. 3).

[¹⁸] 'Quatuor milites stipendiarios optulit abbas. Quos cum rex recepisset, apud castellum de Hou misit. Abbas autem in instanti eis xxxvi. marcas dedit ad expensas xl. dierum. In crastino autem venerunt quidam familiares regis, consulentes abbati ut sibi caute provideret, dicentes werram posse durare per annum integrum vel amplius, et expensas militum excrescere et multiplicari in perpetuum dampnum ei et ecclesiae suae. Et ideo consulebant ut, antequam recederet de curia, finem faceret cum rege, unde posset quietus esse de militibus predictis post xl. dies. Abbas autem, sano usus consilio, centum libras regi dedit pro tali quietantia' (Jocelin, p. 63). It is noteworthy that thirty-six marcs would represent just three shillings a day (for forty days) for each knight, the very sum named by Hoveden. In 1205 the pay named in John's writ was two shillings a day (home service), but both these sums are largely in excess of the eight pence a day paid, as we have seen, under Henry II, the discrepancy being incomprehensible, unless the higher wage implied a larger following.

[¹⁹] Dr Stubbs held [1870] that he acted 'not on ecclesiastical but on constitutional grounds' (Select Charters, p. 28), though he subsequently [1871] doubted whether 'the grounds of the opposition' were 'ecclesiastical or constitutional' (Pref. to Hoveden, iv., p. xci), and even admitted that 'the opposition of St Hugh was based not on his right as a member of the national council, but on the immunities of the church' (Const. Hist., i. 578).

[²⁰] Hoveden, iv., xcii.

[²¹] 'Antiquas immunitates perdendo.'

[²²] 'An Unknown Charter of Liberties.' English Historical Review, viii. 288 et seq.

[²³] See Dr Stubbs' Pref. to W. Coventry, p. lxiv.

[²⁴] English Historical Review, viii. 293.

[²⁵] ibid.

[²⁶] Will. Rufus, i. 222.

[²⁷] ibid., i 222.

[²⁸] Mr Freeman quotes this passage and duly renders it in his text (i. 232).

[²⁹] ibid., i. 22.

[³⁰] ibid., i. 222.

[³¹] Norm. Conq., iii. 290.

[³²] 'Turmas optimatum'—'barones'. Cf. supra, pp. 247, 262.

[³³] Will. Rufus, ii. 56-7.

[³⁴] Norm. Conq., iii. 294-6, 298.

[³⁵] Supra, p. 398.

[³⁶] At Salisbury, January 13, 1096.

[³⁷] Will. Rufus, ii. 57.

[³⁸] ibid., 59.

[³⁹] ibid., 57.

[⁴⁰] ibid., 56.