Surely the point to strike us here is that the clause in Stephen's charter contains just that which is omitted in Henry's, and omits just that which is contained in Henry's. Henry puts forward his relationship to his father and his brother as the sole explanation of his position as king. Stephen omits all mention of his relationship. Conversely, the election, etc., set forth by Stephen, finds no place in the charter of Henry. What can be more significant than this contrast? Again, the formula in Stephen's charter should be compared not only with that of Henry, but with that of his daughter the Empress. As the father had styled himself "Henricus filius Willelmi Regis," so his daughter invariably styled herself "Matildis ... Henrici regis [or regis Henrici] filia;" and so her son, in his time, is styled (1142), as we shall find in a charter quoted in this work, "Henricus filius filiæ regis Henrici." To the importance of this fact I shall recur below. Meanwhile, the point to bear in mind is, that Stephen's style contains no allusion to his parentage, though, strangely enough, in a charter which must have passed in the first year of his reign, he does adopt the curious style of "Ego Stephanus Willelmi Anglorum primi Regis nepos," etc.,[75] in which he hints, contrary to his practice, at a quasi-hereditary right.
Returning, however, to his Oxford charter, in which he did not venture to allude to such claim, we find him appealing (a) to his election, which, as we have seen, was informal enough; (b) to his anointing by the primate; (c) to his "confirmation" by the pope. It is impossible to read such a formula as this in any other light than that of an attempt to "make up a title" under difficulties. I do not know that it has ever been suggested, though the hypothesis would seem highly probable, that the stress laid by Stephen upon the ecclesiastical sanction to his succession may have been largely due, as I have said (p. 10), to the obstacle presented by the oath that had been sworn to the Empress. Of breaking that oath the Church, he held, had pronounced him not guilty.
Yet it is not so much on this significant style, as on the drift of the charter itself, that I depend for support of my thesis that Stephen was virtually king on sufferance, or, to anticipate a phrase of later times, "Quamdiu se bene gesserit." We have seen how in the four typical cases, (1) of the Londoners, (2) of Miles of Gloucester, (3) of Earl Robert, (4) of the bishops, Stephen had only secured their allegiance by submitting to that "original contract" which the political philosophers of a later age evolved from their inner consciousness. It was because his Oxford charter set the seal to this "contract" that Stephen, even then, chafed beneath its yoke, as evidenced by the striking saving clause—
"Hæc omnia concedo et confirmo salva regia et justa dignitate meâ."[76]
And, as we know, at the first opportunity, he hastened to break its bonds.[77]
The position of his opponents throughout his reign would seem to have rested on two assumptions. The first, that a breach, on his part, of the "contract" justified ipso facto revolt on theirs;[78] the second, that their allegiance to the king was a purely feudal relation, and, as such, could be thrown off at any moment by performing the famous diffidatio.[79]
This essential feature of continental feudalism had been rigidly excluded by the Conqueror. He had taken advantage, as is well known, of his position as an English king, to extort an allegiance from his Norman followers more absolute than he could have claimed as their feudal lord. It was to Stephen's peculiar position that was due the introduction for a time of this pernicious principle into England. We have seen it hinted at in that charter of Stephen in which he treats with Miles of Gloucester not merely as his king (rex), but also as his feudal lord (dominus). We shall find it acted on three years later (1139), when this same Miles, with his own dominus, the Earl of Gloucester, jointly "defy" Stephen before declaring for the Empress.[80]
Passing now to the other point, the existence of a rival claim, we approach a subject of great interest, the theory of the succession to the English Crown at what may be termed the crisis of transition from the principle of election (within the royal house) to that of hereditary right according to feudal rules.
For the right view on this subject, we turn, as ever, to Dr. Stubbs, who, with his usual sound judgment, writes thus of the Norman period:—
"The crown then continued to be elective.... But whilst the elective principle was maintained in its fulness where it was necessary or possible to maintain it, it is quite certain that the right of inheritance, and inheritance as primogeniture, was recognized as co-ordinate.... The measures taken by Henry I. for securing the crown to his own children, whilst they prove the acceptance of the hereditary principle, prove also the importance of strengthening it by the recognition of the elective theory.[81]