THE SUBMERGENCE OF ENGLAND
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.