The History of England - a Study in Political Evolution

by A. F. Pollard

For the principles of heredity and primogeniture were among the strongest of feudal tendencies. Primogeniture had proved politically advantageous; and one of the best things in the Anglo-Saxon monarchy had been its avoidance of the practice, prevalent on the Continent, of kings dividing their dominions among their sons, instead of leaving all united to the eldest. But the principle of heredity, sound enough in national monarchy, was to prove very dangerous in the other spheres of politics. Office tended to become hereditary, and to be regarded as the private property of the family rather than a position of national trust, thus escaping national control and being prostituted for personal ends. The earldoms in England were so perverted; originally they were offices like the modern lords-lieutenancies of the shires; gradually they became hereditary titles. The only remedy the king had was to deprive the earls of their power, and entrust it to a nominal deputy, the sheriff. In France, the sheriff (vice-comes, vicomte) became hereditary in his turn, and a prolonged struggle over the same tendency was fought in England. Fortunately, the crown and country triumphed over the hereditary principle in this respect; the sheriff remained an official, and when viscounts were created later, in imitation of the French nobility, they received only a meaningless and comparatively innocuous title.

Some slight check, too, was retained upon the crown owing to a series of disputed successions to the throne. The Anglo-Saxon monarchy had always been in theory elective, and William had been careful to observe the form. His son, William II, had to obtain election in order to secure the throne against the claims of his elder brother Robert, and Henry I followed his example for similar reasons. Each had to make election promises in the form of a charter; and election promises, although they were seldom kept, had some value as reminders to kings of their duties and theoretical dependence upon the electors. Gradually, too, the kings began to look for support outside their Norman baronage, and to realize that even the submerged English might serve as a makeweight in a balance of opposing forces. Henry I bid for London's support by the grant of a notable charter; for, assisted by the order and communications with the Continent fostered by Norman rule, commerce was beginning to flourish and towns to grow. London was already distancing Winchester in their common ambition to be the capital of the kingdom, and the support of it and of other towns began to be worth buying by grants of local government, more especially as their encouragement provided another check on feudal magnates. Henry, too, made a great appeal to English sentiment by marrying Matilda, the granddaughter of Edmund Ironside, and by revenging the battle of Hastings through a conquest of Normandy from his brother Robert, effected partly by English troops.

But the order, which the three Norman sovereigns evolved out of chaos, was still due more to their personal vigour than to the strength of the administrative machinery which they sought to develop; and though that machinery continued to work during the anarchy which followed, it could not restrain the feudal barons, when the crown was disputed between Henry's daughter Matilda and his nephew Stephen. The barons, indeed, had been more successful in riveting their baronial yoke on the people than the kings had been in riveting a monarchical yoke on the barons; and nothing more vividly illustrates the utter subjection of Anglo- Saxons than the fact that the conquerors could afford to tear each other to pieces for nineteen years (1135-1154) without the least attempt on the part of their subjects to throw off their tyranny. There was no English nation yet; each feudal magnate did what he pleased with his own without fear of royal or popular vengeance, and for once in English history, at any rate, the lords vindicated their independence. The church was the only other body which profited by the strife; within its portals and its courts there was some law and order, some peace and refuge from the worldly welter; and it seized the opportunity to broaden its jurisdiction, magnify its law, exalt its privileges, and assert that to it belonged principally the right to elect and to depose sovereigns. Greater still would have been its services to civilization, had it been able to assert a power of putting down the barons from their castles and raising the peasantry from their bondage.

Deliverance could only come by royal power, and in Henry II, Matilda's son, Anjou gave England a greater king than Normandy had done in William the Bastard. Although a foreigner, who ruled a vast continental empire and spent but a fraction of his days on this side of the Channel, he stands second to none of England's makers. He fashioned the government which hammered together the framework of a national state. First, he gathered up such fragments of royal authority as survived the anarchy; then, with the conservative instincts and pretences of a radical, he looked about for precedents in the customs of his grandfather, proclaiming his intention of restoring good old laws. This reaction brought him up against the encroachments of the church, and the untoward incident of Becket's murder impaired the success of Henry's efforts to establish royal supremacy. But this supremacy must not be exaggerated. Henry did not usurp ecclesiastical jurisdiction; he wanted to see that the clerical courts did their duty; he claimed the power of moving them in this direction; and he hoped to make the crown the arbiter of disputes between the rival spiritual and temporal jurisdictions, realizing that the only alternative to this supreme authority was the arbitrament of war. He also contended that clergy who had been unfrocked in the clerical courts for murder or other crimes should be handed over as laymen to be further punished according to the law of the land, while Becket maintained that unfrocking was a sufficient penalty for the first offence, and that it required a second murder to hang a former priest.

Next, he sought to curb the barons. He instituted scutage, by which the great feudatories granted a money payment instead of bringing with them to the army hordes of their sub-tenants who might obey them rather than the king; this enabled the king to hire mercenaries who respected him but not the feudatories. He cashiered all the sheriffs at once, to explode their pretensions to hereditary tenure of their office. By the assize of arms he called the mass of Englishmen to redress the military balance between the barons and the crown. By other assizes he enabled the owners and possessors of property to appeal to the protection of the royal court of justice: instead of trial by battle they could submit their case to a jury of neighbours; and the weapons of the military expert were thus superseded by the verdicts of peaceful citizens.

This method, which was extended to criminal as well as civil cases, of ascertaining the truth and deciding disputes by means of juratores, men sworn to tell the truth impartially, involved a vast educational process. Hitherto men had regarded the ascertainment of truth as a supernatural task, and they had abandoned it to Providence or the priests. Each party to a dispute had been required to produce oath- helpers or compurgators and each compurgator's oath was valued according to his property, just as the number of a man's votes is still proportioned to some extent to his possessions. But if, as commonly happened, both parties produced the requisite oath-helpers, there was nothing for it but the ordeal by fire or water; the man who sank was innocent, he who floated guilty; and the only rational element in the ritual was its supervision by the priests, who knew something of their parishioners' character. Military tenants, however, preferred their privilege of trial by battle. Now Henry began to teach men to rely upon their judgment; and by degrees a distinction was even made between murder and homicide, which had hitherto been confounded because "the thought of man shall not be tried, for the devil himself knoweth not the thought of man."

In order to carry out his judicial reforms, Henry developed the curia regis, or royal court of justice. That court had simply been the court of the king's barons corresponding to the court of his tenants which every feudal lord possessed. Its financial aspect had already been specialized as the exchequer by the Norman kings, who had realized that finance is the first essential of efficient government. From finance Henry I had gone on to the administration of justice, because justitia magnum emolumentum, the administration of justice is a great source of profit. Henry II's zeal for justice sprang from similar motives: the more justice he could draw from the feudal courts to his own, the greater the revenue he would divert from his unruly barons into the royal exchequer. From the central stores of the curia regis he dispensed a justice that was cheaper, more expeditious, and more expert, than that provided by the local courts. He threw open its doors to all except villeins, he transformed it from an occasional assembly of warlike barons into a regular court of trained lawyers—mere servants of the royal household, the barons called them; and by means of justices in eyre he brought it into touch with all localities in the kingdom, and convinced his people that there was a king who meant to govern with their help.

These experts had a free hand as regards the law they administered. The old Anglo-Saxon customs which had done duty for law had degenerated into antiquated formalities, varying in almost every shire and hundred, which were perforce ignored by Henry's judges because they were incomprehensible. So much as they understood and approved they blended with principles drawn from the revived study of Roman law and with Frankish and Norman customs. The legal rules thus elaborated by the king's court were applied by the justices in eyre where-ever their circuits took them, and became in time the common law of England, common because it admitted no local bars and no provincial prejudices. One great stride had been taken in the making of the English nation, when the king's court, trespassing upon local popular and feudal jurisdiction, dumped upon the Anglo-Saxon market the following among other foreign legal concepts—assize, circuit, suit, plaintiff, defendant, maintenance, livery, possession, property, probate, recovery, trespass, treason, felony, fine, coroner, court, inquest, judge, jury, justice, verdict, taxation, charter, liberty, representation, parliament, and constitution. It is difficult to over- estimate the debt the English people owe to their powers of absorbing imports. The very watchwords of progress and catchwords of liberty, from the trial by jury which was ascribed to Alfred the Great to the charter extorted from John, were alien immigrants. We call them alien because they were alien to the Anglo-Saxons; but they are the warp and woof of English institutions, which are too great and too complex to have sprung from purely insular sources.

In spite of the fierce opposition of the barons, who rebelled in 1173, and of disputes with his fractious children which embittered his closing years, Henry II had laid the foundations of national monarchy. But in completing one part of the Norman Conquest, namely, the establishment of royal supremacy over disorderly feudatories, he had modified the other, the arbitrary rule of the barons over the subject people. William had only conquered the people by the help of his barons; Henry II only crushed the barons with the help of lower orders and of ministers raised from the ranks. It was left for his sons to alienate the support which he had enlisted, and to show that, if the first condition of progress was the restraint of the barons, the second was the curbing of the crown. Their reigns illustrate the ineradicable defect of arbitrary rule: a monarch of genius creates an efficient despotism, and is allowed to create it, to deal with evils that yield to no milder treatment. His successors proceed to use that machinery for personal ends. Richard I gilded his abuse of his father's power with the glory of his crusade, and the end afforded a plausible justification for the means he adopted. But John cloaked his tyranny with no specious pretences; his greed and violence spared no section of the community, and forced all into a coalition which extorted from him the Great Charter.

This famous document betrays its composite authorship; no section of the community entered the coalition without something to gain, and none went entirely unrewarded from Runnymede. But if Sir Henry Spelman introduced feudalism into England, his contemporary, Chief-justice Coke, invented Magna Carta: and in view of the profound misconceptions which prevail with regard to its character, it is necessary to insist rather upon its reactionary than upon its reforming elements. The great source of error lies in the change which is always insensibly, but sometimes completely, transforming the meaning of words. Generally the change has been from the concrete to the abstract, because in their earlier stages of education men find it very difficult to grasp anything which is not concrete. The word "liberty" affords a good illustration: in 1215 a "liberty" was the possession by a definite person or group of persons of very definite and tangible privileges, such as having a court of your own with its perquisites, or exemption from the duties of attending the public courts of the shire or hundred, of rendering the services or of paying the dues to which the majority were liable. The value of a "liberty" was that through its enjoyment you were not as other men; the barons would have eared little for liberties which they had to share with the common herd. To them liberty meant privilege and monopoly; it was not a general right to be enjoyed in common. Now Magna Carta is a charter not of "liberty," but of "liberties"; it guaranteed to each section of the coalition those special privileges which Henry II and his sons had threatened or taken away. Some of these liberties were dangerous obstacles to the common welfare—for instance the "liberty" of every lord of the manor to try all suits relating to property and possession in his own manorial court, or to be punished by his fellow-barons instead of by the judges of the king's court. This was what the barons meant by their famous demand in Magna Carta that every man should be judged by his peers; they insisted that the royal judges were not their peers, but only servants of the crown, and their demands in these respects were reactionary proposals which might have been fatal to liberty as we conceive it.