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The History Of England - A Study In Political Evolution
The Submergence Of England
by Pollard, A. F.


1066-1272

For nearly two centuries after the Norman Conquest there is no history of the English people. There is history enough of England, but it is the history of a foreign government. We may now feel pride in the strength of our conqueror or pretend claims to descent from William's companions. We may boast of the empire of Henry II and the prowess of Richard I, and we may celebrate the organized law and justice, the scholarship and the architecture, of the early Plantagenet period; but these things were no more English than the government of India to-day is Hindu. With Waltheof and Hereward English names disappear from English history, from the roll of sovereigns, ministers, bishops, earls, and sheriffs; and their place is taken by names beginning with "fitz" and distinguished by "de." No William, Thomas, Henry, Geoffrey, Gilbert, John, Stephen, Richard, or Robert had played any part in Anglo-Saxon affairs, but they fill the pages of England's history from the days of Harold to those of Edward I. The English language went underground, and became the patois of peasants; the thin trickle of Anglo-Saxon literature dried up, for there was no demand for Anglo- Saxon among an upper class which wrote Latin and spoke French. Foreigners ruled and owned the land, and "native" became synonymous with "serf."

Their common lot, however, gave birth to a common feeling. The Norman was more alien to the Mercian than had been Northumbrian or West-Saxon, and rival tribes at last discovered a bond of unity in the impartial rigour of their masters. The Norman, coming from outside and exempt from local prejudice, applied the same methods of government and exploitation to all parts of England, just as Englishmen bring the same ideas to bear upon all parts of India; and in both cases the steady pressure of a superimposed civilization tended to obliterate local and class divisions. Unwittingly Norman and Angevin despotism made an English nation out of Anglo-Saxon tribes, as English despotism has made a nation out of Irish septs, and will make another out of the hundred races and religions of our Indian empire. The more efficient a despotism, the sooner it makes itself impossible, and the greater the problems it stores up for the future, unless it can divest itself of its despotic attributes and make common cause with the nation it has created.

The provision of this even-handed tyranny was the great contribution of the Normans to the making of England. They had no written law of their own, but to secure themselves they had to enforce order upon their schismatic subjects; and they were able to enforce it because, as military experts, they had no equals in that age. They could not have stood against a nation in arms; but the increasing cost of equipment and the growth of poor and landless classes among the Anglo-Saxons had transferred the military business of the nation into the hands of large landowning specialists; and the Anglo-Saxon warrior was no match for his Norman rival, either individually or collectively. His burh was inferior to the Norman castle, his shield and battle-axe to the weapons of the mailed and mounted knight; and he had none of the coherence that was forced upon the conquerors by the iron hand of William and by their situation amid a hostile people.

The problem for William and his companions was how to organize this military superiority as a means of orderly government, and this problem wore a twofold aspect. William had to control his barons, and his barons had to control their vassals. Their methods have been summed up in the phrase, the "feudal system," which William is still popularly supposed to have introduced into England. On the other hand, it has been humourously suggested that the feudal system was really introduced into England by Sir Henry Spelman, a seventeenth-century scholar. Others have maintained that, so far from feudalism being introduced from Normandy into England, it would be truer to say that feudalism was introduced from England into Normandy, and thence spread throughout France. These speculations serve, at any rate, to show that feudalism was a very vague and elusive system, consisting of generalizations from a vast number of conflicting data. Spelman was the first to attempt to reduce these data to a system, and his successors tended to forget more and more the exceptions to his rules. It is now clear that much that we call feudal existed in England before the Norman Conquest; that much of it was not developed until after the Norman period; and that at no time did feudalism exist as a completely rounded and logical system outside historical and legal text-books.

The political and social arrangements summed up in the phrase related primarily to the land and the conditions of service upon which it was held. Commerce and manufactures, and the organization of towns which grew out of them, were always exceptions to the feudal system; the monarchy saved itself, its sheriffs, and the shires to some extent from feudal influence; and soon it set to work to redeem the administration of justice from its clutches. In all parts of the country, moreover, there was land, the tenure of which was never feudalized. Generally, however, the theory was applied that all land was held directly or indirectly from the king, who was the sole owner of it, that there was no land without a lord, and that from every acre of land some sort of service was due to some one or other. A great deal of it was held by military service; the tenant-in-chief of this land, who might be either a layman or an ecclesiastic, had to render this military service to the king, while the sub-tenants had to render it to the tenants-in-chief. When the tenant died his land reverted to the lord, who only granted it to the heir after the payment of a year's revenue, and on condition of the same service being rendered. If the heir were a minor, and thus incapable of rendering military service, the land was retained by the lord until the heir came of age; heiresses could only marry with the lord's leave some one who could perform his services. The tenant had further to attend the lord's court--whether the lord was his king or not--submit to his jurisdiction, and pay aids to the lord whenever he was captured and needed ransom, when his eldest son was made a knight, and when his eldest daughter married.

Other land was held by churchmen on condition of praying or singing for the soul of the lord, and the importance of this tenure was that it was subject to the church courts and not to those of the king. Some was held in what was called free socage, the terms of which varied; but its distinguishing feature seems to have been that the service, which was not military, was fixed, and that when it was performed the lord had no further hold on the tenant. The great mass of the population were, however, villeins, who were always at the beck and call of their lords, and had to do as much ploughing, sowing, and reaping of his land as he could make them. Theoretically they were his goods and chattels, who could obtain no redress against any one except in the lord's court, and none at all against him. They could not leave their land, nor marry, nor enter the church, nor go to school without his leave. All these forms of tenure and kinds of service, however, shaded off into one another, so that it is impossible to draw hard and fast lines between them. Any one, moreover, might hold different lands on different terms of service, so that there was little of caste in the English system; it was upon the land and not the person that the service was imposed; and William's Domesday Book was not a record of the ranks and classes of the people, but a survey of the land, detailing the rents and service due from every part.

The local agency by which the Normans enforced these arrangements was the manor. The Anglo-Saxons had organized shires and hundreds, but the lowest unit, township or vill seems to have had no organization except, perhaps, for agricultural purposes. The Danegeld, which William imposed after the Domesday survey, was assessed on the hundreds, as though there were no smaller units from which it could be levied. But the hundred was found too cumbrous for the efficient control of local details; it was divided into manors, the Normans using for this purpose the germs of dependent townships which had long been growing up in England; and the agricultural organization of the township was dovetailed into the jurisdictional organization of the manor. The lord became the lord of all the land on the manor, the owner of a court which tried local disputes; but he rarely possessed that criminal jurisdiction in matters of life and death which was common in continental feudalism; and if he did, it was only by special royal grant, and he was gradually deprived of it by the development of royal courts of justice, which drew to themselves large parts of manorial jurisdiction.

These and other matters were reserved for the old courts of the shire and hundred, which the Norman kings found it advisable to encourage as a check upon their barons; for the more completely the natives and villagers were subjected to their lords, the more necessary was it for the king to maintain his hold upon their masters. For this reason William imposed the famous Salisbury oath. In France the sub-tenant was bound to follow and obey his immediate lord rather than the king. William was determined that every man's duty to the king should come first. Similarly, he separated church courts from the secular courts, in order that the former might be saved from the feudal influence of the latter; and he enforced the ecclesiastical reforms of Hildebrand, especially the prohibition of the marriage of the clergy, lest they should convert their benefices into hereditary fiefs for the benefit of their children.

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.

Nor is there anything about trial by jury or "no taxation without representation" in Magna Carta. What we mean by "trial by jury" was not developed till long after 1215; there was still no national, but only class taxation; and the great council, which was to give its assent to royal demands for money, represented nobody but the tenants-in-chief of whom it was composed. All that the barons meant by this clause was that they, as feudal tenants-in-chief, were not to pay more than the ordinary feudal dues. But they left to the king, and they reserved to themselves, the right to tallage their villeins as arbitrarily as they pleased; and even where they seem to be protecting the villeins, they are only preventing the king from levying such judicial fines from their villeins as would make it impossible for those villeins to render their services to the lords. It was to be no affair of the king or nation if a lord exacted the uttermost farthing from his own chattels; legally, the villeins, who were the bulk of the nation, remained after Magna Carta, as before, in the position of a man's ox or horse to-day, except that there was no law for the prevention of cruelty to animals. Finally, the provision that no one was to be arrested until he had been convicted would, if carried out, have made impossible the administration of justice.

On the other hand, the provisions for the fixing of the court of common pleas at Westminster, for standard weights and measures, for the administration of law by men acquainted with English customs, and some others were wholesome reforms. The first clause, guaranteeing that the church should be free from royal (not papal) encroachments, was sound enough when John was king, and the general restraint of his authority, even in the interests of the barons, was not an unmixed evil. But it is as absurd to think that John conceded modern liberty when he granted the charter of medieval liberties, as to think that he permitted some one to found a new religion when he licensed him to endow a new religious house (novam religionem); and to regard Magna Carta as a great popular achievement, when no vernacular version of it is known to have existed before the sixteenth century, and when it contains hardly a word or an idea of popular English origin, involves complete misunderstanding of its meaning and a serious antedating of English nationality.

At no time, indeed, did foreign influence appear more dominant in English politics than during the generation which saw Richard I surrender his kingdom to be held as a fief of the empire, and John surrender it to be held as a temporal fief of the papacy; or when, in the reign of Henry III, a papal legate, Gualo, administered England as a province of the Papal States; when a foreign freebooter was sheriff of six English shires; and when aliens held in their hands the castles and keys of the kingdom. It was a dark hour which preceded the dawn of English nationality, and so far there was no sign of English indignation at the bartering of England's independence. Resistance there was, but it came from men who were only a degree less alien than those whose domination they resented.

Yet a governing class, planted by Henry II, was striking root in English soil and drawing nourishment and inspiration from English feelings. It was reinforced by John's loss of Normandy, which compelled bi-national barons who held lands in both countries to choose between their French and English sovereigns; and those who preferred England became more English than they had been before. The French invasion of England, which followed John's repudiation of the charter, widened the cleavage; and there was something national, if little that was English, in the government of Hubert de Burgh, and still more in the naval victory which Hubert and the men of the Cinque Ports won over the French in the Straits of Dover in 1217. But not a vestige of national feeling animated Henry III; and for twenty-five wearisome years after he had attained his majority he strove to govern England by means of alien relatives and dependents.

The opposition offered by the great council was baronial rather than national; the revolt in which it ended was a revolt of the half-breeds rather than a revolt of the English; and the government they established in 1258 was merely a legalized form of baronial anarchy. But there was this difference between the anarchy of Stephen's reign and that of Henry III's: now, when the foreigners fell out, the English began to come by their own. A sort of "young England" party fell foul of both the barons and the king; Simon de Montfort detached himself from the baronial brethren with whom he had acted, and boldly placed himself at the head of a movement for securing England for the English. He summoned representatives from cities and boroughs to sit side by side with greater and lesser barons in the great council of the realm, which now became an English parliament; and for the first time since the Norman Conquest men of the subject race were called up to deliberate on national affairs. It does not matter whether this was the stroke of a statesman's genius or the lucky improvisation of a party- leader. Simon fell, but his work remained; Prince Edward, who copied his tactics at Evesham, copied his politics in 1275 and afterwards at Westminster; and under the first sovereign since the Norman Conquest who bore an English name, the English people received their national livery and the seisin of their inheritance.

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