obtained who could unanimously decide one way or the other. In the course of time1 this smaller body became judges of the evidence for or against the accused, and thus the modern system of Trial by Jury was established about 1350.

These reforms had three important results: (1) they greatly diminished the power of the barons by taking the administration of justice, in large measure, out of their hands; (2) they established a more uniform system of law; (3) they brought large sums of money, in the way of court fees and fines, into the King's treasury, and so made him stronger than ever.

But meanwhile Henry was carrying on a still sharper battle in his attempt to bring the Church courts which William I had separated from the ordinary courts under control of the same system of justice. In these Church courts any person claiming to belong to the clergy had a right to be tried. Such courts had no power to inflict death, even for murder. In Stephen's reign many notorious criminals had managed to get themselves enrolled among the clergy, and had thus escaped the hanging they deserved. Henry was determined to have all men — - in the circle of clergy or out of it — stand equal before the law. Instead of two kinds of justice, he would have but one; this would not only secure a still higher uniformity of law, but it would sweep into the King's treasury many fat fees and fines which the Church courts were then getting for themselves.

By the laws entitled the "Constitutions of Clarendon,” 1164 (§ 165), the common courts were empowered to decide whether a man claiming to belong to the clergy should be tried by the Church courts or not. If they granted him the privilege of a Church-court trial, they kept a sharp watch on the progress of the case; if the accused was convicted, he must then be handed over to the judges of the ordinary courts, and they took especial pains to convince him of the Bible truth, that " the way of the transgressor is hard." For a time the Constitutions were rigidly enforced, but in the end Henry was forced to renounce them. Later, however, the principle he had endeavored to set up was fully established.2

The greatest result springing from Henry's efforts was the training of the people in public affairs, and the definitive establishment of that system of Common Law which regards the people as the supreme source of both law and government, and which is directly and vitally connected with the principle of representation and of trial by jury.3

9. Rise of Free Towns. While these important changes were taking place, the towns were growing in population and wealth (§ 183). But as

1 The date usually given is 1350; but as late as the reign of George I juries were accustomed to bring in verdicts determined partly by their own personal knowledge of the facts. See Taswell-Langmead (revised edition), p. 179.

2 Edward I limited the jurisdiction of the Church courts to purely spiritual cases, such as heresy and the like; but the work which he, following the example of Henry II, had undertaken was not fully accomplished until the fifteenth century.

3 See Green's "Henry II," in the English Statesmen Series.

CONSTITUTIONAL SUMMARY

ix

these towns occupied land belonging either directly to the King or to some baron, they were subject to the authority of one or the other, and so possessed no real freedom. In the reign of Richard I many towns purchased certain rights of self-government from the King.1 This power of controlling their own affairs greatly increased their prosperity, and in time, as we shall see, secured them a voice in the management of the affairs of the nation.

10. John's Loss of Normandy; Magna Carta. Up to John's reign many barons continued to hold large estates in Normandy, in addition to those they had acquired in England; hence their interests were divided between the two countries. Through war John lost his French possessions (§ 191). Henceforth the barons shut out from Normandy came to look upon England as their true home. From Henry II's reign the Normans and the English had been gradually mingling; from this time they became practically one people. John's tyranny and cruelty brought their union into sharp, decisive action. The result of his greed for money, and his defiance of all law, was a tremendous insurrection. Before this time the people had always taken the side of the King against the barons; now, with equal reason, they turned about and rose with the barons against the King.

Under the guidance of Archbishop Langton, barons, clergy, and people demanded reform. The Archbishop brought out the half-forgotten charter of Henry I (§ 135, note 1). This now furnished a model for Magna Carta, or the "Great Charter of the Liberties of England." 2

It contained nothing that was new in principle. It was simply a clearer, fuller, stronger statement of those "rights of Englishmen which were already old."

John, though wild with rage, did not dare refuse to affix his royal seal to the Great Charter of 1215. By doing so he solemnly guaranteed : (1) the rights of the Church; (2) those of the barons; (3) those of all freemen; (4) those of the villeins, or farm laborers. The value of this charter to the people at large is shown by the fact that nearly one third of its sixty-three articles were inserted in their behalf. Of these articles the most important was that which declared that no man should be deprived of liberty or property, or injured in body or estate, save by the judgment of his equals or by the law of the land.

In regard to taxation, the Charter provided that, except the customary feudal 11 3 aids, none should be levied unless by the consent of the National Council. Finally, the Charter expressly provided that twentyfive barons — one of whom was mayor of London should be appointed

to compel the King to carry out his agreement.

II. Henry III and the Great Charter; the Forest Charter; Provisions of Oxford; Rise of the House of Commons; Important Land Laws. Under Henry III the Great Charter was reissued. But the important 1 See § 183. 2 Magna Carta: see §§ 195-202; and see Constitutional Documents, p. xxix.

8 For the three customary feudal aids, see § 150.

articles which forbade the King to levy taxes except by consent of the National Council, together with some others restricting his power to increase his revenue, were dropped, and never again restored.1

On the other hand, Henry was obliged to issue a Forest Charter, based on certain articles of Magna Carta, which declared that no man should lose life or limb for hunting in the royal forests.

Though the Great Charter was now shorn of some of its safeguards to liberty, yet it was still so highly prized that its confirmation was purchased at a high price from successive sovereigns. Down to the second year of Henry VI's reign (1423) we find that it had been confirmed no less than thirty-seven times.

Notwithstanding his solemn oath (§ 210), the vain and worthless Henry III deliberately violated the provisions of the Charter, in order to raise money to waste in his foolish foreign wars or on his court circle of French favorites.

Finally (1258), a body of armed barons, led by Simon de Montfort, Earl of Leicester, forced the King to summon a Parliament at Oxford. There a scheme of reform, called the "Provisions of Oxford," was . adopted (§ 209). By these Provisions, which Henry swore to observe, the government was practically taken out of the King's hands, - at least as far as he had power to do mischief, and entrusted to certain councils or committees of state.

A few years later, Henry refused to abide by the Provisions of Oxford, and civil war broke out. De Montfort, Earl of Leicester, gained a decisive victory at Lewes, and captured the King. The Earl then summoned a National Council, made up of those who favored his policy of reform (§ 213). This was the famous Parliament of 1265. To it De Montfort summoned: (1) a small number of barons; (2) a large number of the higher clergy; (3) two knights, or country gentlemen, from each shire; (4) two burghers, or citizens, from every town.

The knights of the shire had been summoned to Parliament before; 2 but this was the first time that the towns had been invited to send representatives. By that act the Earl set the example of giving the people at large a fuller share in the government than they had yet had. To De Montfort, therefore, justly belongs the glory of being "the founder of the House of Commons." His work, however, was defective (§ 213); and owing, perhaps, to his death shortly afterwards at the battle of Evesham (1265), the regular and continuous representation of the towns did not begin until thirty years later.

Meanwhile, 1279-1290, three land laws of great importance were enacted. The first limited the acquisition of landed property by the Church; the second encouraged the transmission of land by will to the

3

1 See Stubbs's "Select Charters" (Edward I), p. 484; but compare note 1, p. 443.

2 They were first summoned by John in 1213.

3 Statute of Mortmain (1279): see § 226; it was especially directed against the acquisition of land by monasteries.

CONSTITUTIONAL SUMMARY

xi

eldest son, thus keeping estates together instead of breaking them up among several heirs;1 the third made purchasers of estates the direct feudal tenants of the King. The object of these three laws was to prevent landholders from evading their feudal obligations; hence they decidedly strengthened the royal power.3

12. Edward I's "Model Parliament"; Confirmation of the Charters. In 1295 Edward I, one of the ablest men that ever sat on the English throne, adopted De Montfort's scheme of representation. The King was greatly pressed for money, and his object was to get the help of the towns, and thus secure a system of taxation which should include all classes. With the significant words, "That which toucheth all should be approved by all,” he summoned to Westminster the first really complete or Model Parliament " (§. 217),* consisting of King, Lords (temporal and spiritual), and Commons.5 The form Parliament then received it has kept substantially ever since. We shall see how from this time the Commons gradually grew in influence, though with periods of relapse, until at length they have become the controlling power in legislation.

Two years after the meeting of the Model Parliament," in order to get money to carry on a war with France, Edward levied a tax on the barons, and seized a large quantity of wool belonging to the merchants. So determined was the resistance to these acts that civil war was threatened. In order to avert it, the King was obliged to summon a Parliament, 1297, and to sign a confirmation of all previous charters of liberties, including the Great Charter (§ 202). He furthermore bound himself in the most solemn manner not to tax his subjects or seize their goods without their consent. Henceforth Parliament alone was considered to hold control of the nation's purse; and although this principle was afterwards evaded, no king openly denied its binding force. Furthermore, in Edward's reign the House of Commons gained (1322), for the first time, a direct share in legislation. This step had results of supreme constitutional importance.

13. Division of Parliament into Two Houses; Growth of the Power of the Commons; Legislation by Statute; Impeachment; Power over the Purse. In Edward III's reign a great change occurred in Parliament. The knights of the shire (about 1343) joined the representatives

1 Statute De Donis Conditionalibus or Entail (Westminster II) (1285): see § 225. 2 Statute of Quia Emptores (1290): see $225.

3 During the same period the Statute of Winchester (1285) reorganized the national militia and the police system (§ 224).

4 De Montfort's Parliament was not wholly lawful and regular, because not voluntarily summoned by the King himself. Parliament must be summoned by the sovereign, opened by the sovereign (in person or by commission); all laws require the sovereign's signature to complete them; and, finally, Parliament can be suspended or dissolved by the sovereign only.

5 The lower clergy were summoned to send representatives to the Commons; but they came very irregularly, and in the fourteenth century ceased coming altogether. From that time they voted their supplies for the Crown in Convocation, until 1663, when Convocation ceased to meet. The higher clergy-bishops and abbots-met with the House of Lords.

from the towns, and began to sit apart from the Lords as a distinct House of Commons. This union gave that House a new character, and invested it with a power in Parliament which the representation from the towns alone could not have exerted. But though thus strengthened, the Commons did not venture to claim an equal part with the Lords in framing laws. Their attitude was that of humble petitioners. When they had voted the supplies of money which the King asked for, the Commons might then meekly beg for legislation. Even when the King and the Lords assented to their petitions, the Commons often found to their disappointment that the laws which had been promised did not correspond to those for which they had asked. Henry V pledged his word (1414) that the petitions, when accepted, should be made into laws without any alteration. But, as a matter of fact, this was not effectually done until near the close of the reign of Henry VI (about 1461). Then the Commons succeeded in obtaining the right to present proposed laws in the form of regular bills instead of petitions. These bills when enacted became statutes or acts of Parliament, as we know them to-day. This change was a most important one, since it made it impossible for the King with the Lords to fraudulently defeat the expressed will of the Commons after they had once assented to the legislation the Commons desired.

Meanwhile the Commons gained, for the first time (1376), the right of impeaching such ministers of the Crown as they had reason to believe were unfaithful to the interests of the people. This, of course, put an immense restraining power in their hands, since they could now make the ministers responsible, in great measure, for the King.1

Next (1406), the Commons insisted on having an account rendered of the money spent by the King; and at times they even limited 2 their appropriations of money to particular purposes. Finally, in 1407, the Commons took the most decided step of all. They boldly demanded and obtained the exclusive right of making all grants of money required by the Crown.3

In future the King, unless he violated the law, had to look to the Commons - that is, to the direct representation of the mass of the people for his chief supplies. This made the will of the Commons more powerful than it had ever been.

14. Religious Legislation; Emancipation of the Villeins; Disfranchisement of County Electors. The Parliament of Merton had already (1236) refused to introduce the canon or ecclesiastical law (§ 265). In the next century two very important statutes relating to the Church were enacted, — that of Provisors (1350)1 and the Great Act of Præmunire,

-

1 But after 1450 the Commons ceased to exercise the right of impeachment until 1621, when they impeached Lord Bacon and others.

2 The Commons dropped the right of appropriating money for specific objects, - except in a single instance under Henry VI,— and did not revive it until 1624.

3 This right the Commons never surrendered.

• Provisors: this was a law forbidding the Pope to provide any person (by anticipation) with a position in the English Church until the death of the incumbent.