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CONSTITUTIONAL SUMMARY

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south of the Thames to join in common defense, under the leadership of Alfred, King of the West Saxons. By the Treaty of Wedmore, 878, the Danes were compelled to give up Southwestern England, but they retained the whole of the Northeast. About the middle of the tenth century, one of Alfred's grandsons conquered the Danes, and took the title of "King of England."1 Later, the Danes, reënforced by fresh invasions of their countrymen, made themselves masters of the land; yet Canute, the most powerful of these Danish kings, ruled according to English methods. At length the great body of the people united in choosing Edward the Confessor king (1042-1066). He was English by birth, but Norman by education. Under him the unity of the English kingdom was, in name at least, fully restored.

5. Beginning of the Feudal System; its Results. Meantime a great change had taken place in England with respect to holding land (§§ 86, 150). We shall see clearly to what that change was tending if we look at the condition of France. There a system of government and of land tenure existed known as the Feudal System. Under it the King was regarded as the owner of the entire realm. He granted, with his royal protection, the use of portions of the land to his chief men or nobles, with the privilege of building castles and of establishing courts of justice on these estates. Such grants were made on two conditions: (1) that the tenants should take part in the King's Council; (2) that they should do military service in the King's behalf, and furnish besides a certain number of fully armed horsemen in proportion to the amount of land they had received. So long as they fulfilled these conditions — made under oath — they could retain their estates, and hand them down to their children; but if they failed to keep their oath, they forfeited the land to the King.

These great military barons or lords let out parts of their immense manors,2 or estates, on similar conditions, — namely (1) that their vassals or tenants should pay rent to them by doing military or other service; and (2) that they should agree that all questions concerning their rights and duties should be tried in the lord's private court. On the other hand, the lord of the manor pledged himself to protect his vassals.

On every manor there were usually three classes of these tenants: (1) those who discharged their rent by doing military duty; (2) those

1 Some authorities consider Edgar (959) as the first "King of all England." In 829 Egbert, King of the West Saxons, forced all the other Saxon Kings of Britain to acknowledge him as their "Overlord" (§ 49).

2 Manor (mǎn'or); see plan of a manor (Old French manoir, "a mansion ") on page 75, the estate of a feudal lord. Every manor had two courts. The most important of these was the "court baron." It was composed of all the free tenants of the manor, with the lord (or his representative) presiding. It dealt with civil cases only. The second court was the "court customary," which dealt with cases connected with villeinage. The manors held by the greater barons had a third court, the "court leet," which dealt with criminal cases, and could inflict the death penalty. In all cases the decisions of the manorial courts would be pretty sure to be in the lord's favor. In England, however, these courts never acquired the degree of power which they did on the Continent.

3 See note above, on the manor.

who paid by a certain fixed amount of labor — or, if they preferred, in produce or in money; (3) the villeins, or common laborers, who were bound to remain on the estate and work for the lord, and whose condition, although they were not wholly destitute of legal rights, was practically not very much above that of slaves (§ 113).

But there was another way by which men might enter the Feudal System; for while it was growing up there were many small free landholders, who owned their farms and owed no man any service whatever. In those times of constant civil war such men would be almost in daily peril of losing, not only their property, but their lives. To escape this danger, they would hasten to "commend" themselves to some powerful neighboring lord. To do this, they pledged themselves to become "his men,” surrendered their farms to him, and received them again as feudal vassals. That is, the lord bound himself to protect them against their enemies, and they bound themselves to do suit and service " 1 like the other tenants of the manor; for "suit and service" on the one side, and protection" on the other, made up the threefold foundation of the Feudal System.

Thus in time all classes of society became bound together. At the top stood the King, who was no man's tenant, but, in name at least, every man's master; at the bottom crouched the villein, who was no man's master, but was, in fact, the most servile and helpless of tenants.

Such was the condition of things in France. In England, however, this system of land tenure was not completely established until after the Norman Conquest, 1066; for in England the tie which bound men to the King and to each other was originally one of pure choice, and had nothing directly to do with land. Gradually, however, this changed; and by the time of Edward the Confessor land in England had come to be held on conditions so closely resembling those of France that one step more and that a very short one - would have made England a kingdom exhibiting all the most dangerous features of French feudalism.

For, notwithstanding certain advantages,2 feudalism had this great evil: that the chief nobles often became in time more powerful than the King. This danger now menaced England. For convenience Canute the Dane had divided the realm into four earldoms. The holders of these vast estates had grown so mighty that they scorned royal authority. Edward the Confessor did not dare resist them. The ambition of each carl was to get the supreme mastery. This threatened to bring on civil war, and to split the kingdom into fragments. Fortunately for the welfare of the nation, William, Duke of Normandy, by his invasion and conquest of England, 1066, put an effectual stop to the selfish schemes of these four rival nobles.

1 That is, they pledged themselves to do suit in the lord's private court, and to do service in his army.

2 On the Advantages of Feudalism, see § 87.

CONSTITUTIONAL SUMMARY

6. William the Conqueror and his Work. After William's victory at Hastings and march on London (§§ 74, 107), the National Council chose him sovereign, — they would not have dared to refuse, — and he was crowned by the Archbishop of York in Westminster Abbey. This coronation made him the legal successor of the line of English kings. In form, therefore, there was no break in the order of government; for though William had forced himself upon the throne, he had done so according to law and custom, and not directly by the sword.

Great changes followed the conquest, but they were not violent. The King abolished the four great earldoms (§ 64), and restored national unity. He gradually dispossessed the chief English landholders of their lands, and bestowed them, under strict feudal laws, on his Norman followers. He likewise gave all the highest positions in the Church to Norman bishops and abbots. The National Council now changed its character. It became simply a body of Norman barons, who were bound by feudal custom to meet with the King. But they did not restrain his authority; for William would brook no interference with his will from any one, not even from the Pope himself (§ 118).

But though the Conqueror had a tyrant's power, he rarely used it like a tyrant. We have seen1 that the great excellence of the early English government lay in the fact that the towns, hundreds, and shires were self-governing in all local matters; the drawback to this system was its lack of unity and of a strong central power that could make itself respected and obeyed. William supplied this power, without which there could be no true national strength, — yet at the same time he was careful to encourage the local system of self-government. He gave London a liberal charter to protect its rights and liberties (§ 107). He began the organization of a royal court of justice; he checked the rapacious Norman barons in their efforts to get control of the people's courts.

Furthermore, side by side with the feudal cavalry army, he maintained the old English county militia of foot soldiers, in which every freeman was bound to serve. He used this militia, when necessary, to prevent the barons from getting the upper hand, and so destroying those liberties which were protected by the Crown as its own best safeguard against the plots of the nobles.

Next, William had a census, survey, and valuation made of all the estates in the kingdom outside London which were worth examination. The result of this great work was recorded in Domesday Book (§ 120). By means of that book—still preserved the King knew what no English ruler had known before him; that was, the property-holding population and resources of the kingdom. Thus a solid foundation was laid on which to establish the feudal revenue and the military power of the Crown.

1 See §§ 2, 3 of this Summary.

Finally, just before his death, the Conqueror completed the organization of his government. Hitherto the vassals of the great barons had been bound to them alone. They were sworn to fight for their masters, even if those masters rose in open rebellion against the sovereign. William changed all that. At a meeting held at Salisbury, 1086, he compelled every landholder in England, from the greatest to the smallest, sixty thousand, it is said, to swear to be "faithful to him against all others" (§ 121). By that oath he "broke the neck of the Feudal System" as a form of government, though he retained and developed the principle of feudal land tenure. Thus at one stroke he made the Crown the supreme power in England; had he not done so, the nation would soon have fallen a prey to civil war.

7. William's Norman Successors. William Rufus has a bad name in history, and he fully deserves it. But he had this merit: he held the Norman barons in check with a stiff hand, and so, in one way, gave the country comparative peace.

His successor, Henry I, granted, 1100, a Charter of Liberties (§ 135, note 1) to his people, by which he recognized the sacredness of the old English laws for the protection of life and property. Somewhat more than a century later this document became, as we shall see, the basis of the most celebrated charter known in English history. Henry attempted important reforms in the administration of the laws, and laid the foundation of that system which his grandson, Henry II, was to develop and establish. By these measures he gained the title of the "Lion of Justice," who "made peace for both man and beast." Furthermore, in an important controversy with the Pope respecting the appointment of bishops (§ 136), Henry obtained the right (1107) to require that both bishops and abbots, after taking possession of their Church estates, should be obliged like the baron to furnish troops for the defense of the kingdom.

But in the next reign - that of Stephen the barons got the upper hand, and the King was powerless to control them. They built castles without royal license, and from these private fortresses they sallied forth to ravage, rob, and murder in all directions. Had that period of terror continued much longer, England would have been torn to pieces by a multitude of greedy tyrants.

8. Reforms of Henry II; Scutage; Assize of Clarendon; Juries; Constitutions of Clarendon. With Henry II the true reign of law begins. To carry out the reforms begun by his grandfather, Henry I, the King fought both barons and clergy. Over the first he won a complete and final victory; over the second he gained a partial one.

Henry began his work by pulling down the unlicensed castles built by the "robber barons in Stephen's reign. But, according to feudal usage, the King was dependent on these very barons for his cavalry, his chief armed force. He resolved to make himself independent of their reluctant aid. To do this he offered to release them from military

CONSTITUTIONAL SUMMARY

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service, providing they would pay a tax, called "scutage," or money" (1159).1 The barons gladly accepted the offer. With the money Henry was able to hire "mercenaries," or foreign troops, to fight for him abroad, and, if need be, in England as well. Thus he struck a great blow at the power of the barons, since they, through disuse of arms, grew weaker, while the King grew steadily stronger. To complete the work, Henry, many years later (1181), reorganized the old English national militia,2 and made it thoroughly effective for the defense of the royal authority. For just a hundred years (1074-1174) the barons had been trying to overthrow the government; under Henry II the long struggle came to an end, and the royal power triumphed.

But in getting the military control of the kingdom Henry had won only half of the victory he was seeking; to complete his supremacy over the powerful nobles, the King must obtain control of the administration of justice.

In order to do this more effectually, Henry issued the Assize of Clarendon (1166). It was the first true national code of law ever put forth by an English king, since previous codes had been little more than summaries of old "customs." The realm had already been divided into six circuits, having three judges for each circuit. The Assize of Clarendon gave these judges power not only to enter and preside over every county court, but also over every court held by a baron on his manor. This put a pretty decisive check to the hitherto uncontrolled baronial system of justice - — or injustice — with its private dungeons and its private gibbets. It brought everything under the eye of the King's judges, so that those who wished to appeal to them could now do so without the expense, trouble, and danger of a journey to the royal palace.

Again, it had been the practice among the Norman barons to settle disputes about land by the barbarous method of Trial by Battle (§ 148); Henry gave tenants the right to have the case decided by a body of twelve knights acquainted with the facts.

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In criminal cases a great change was likewise effected. Henceforth twelve men from each hundred, with four from each township, sixteen at least, acting as a grand jury, were to present all suspected criminals to the circuit judges. The judges sent them to the Ordeal (§ 91); if they failed to pass it, they were then punished by law as convicted felons; if they did pass it, they were banished from the kingdom as persons of evil repute. After the abolition of the Ordeal (1215), a petty jury of witnesses was allowed to testify in favor of the accused, and clear them if they could from the charges brought by the grand jury. If their testimony was not decisive, more witnesses were added until twelve were

1 Scutage: see § 161. The demand for scutage seems to show that the feudal tenure was now fully organized, and that the whole realm was by this time divided into knights' fees, that is, into portions of land yielding £20 annually, - each of which was obliged to furnish one fully armed, well-mounted knight to serve the King (if called on) for forty days annually. 2 National militia: see $$ 96, 150.

3 See the Assize of Clarendon (1166) in Stubbs's "Select Charters."

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