by Will Durant
The Great Charter deserves its fame as the foundation of the liberties today enjoyed by the English-speaking world. It was indeed limited; it defined the rights of the nobles and the clergy far more than of the whole people; no arrangements were made to implement the pious gesture of Article 60; the Charter was a victory for feudalism rather than for democracy. But it defined and safeguarded basic rights; it established habeas corpus and trial by jury; it gave to an incipient Parliament a power of the purse that would later arm the nation against tyranny; it transformed absolute into limited and constitutional monarchy.
John, however, had no idea that he had immortalized himself by surrendering his despotic powers or claims. He signed under duress; and on the morrow he plotted to annul the Charter. He appealed to the Pope; and Innocent III, whose policy now required the support of England against France, came to the defense of his humiliated vassal by proclaiming the Charter void, and forbidding John to obey, or the nobles to enforce, its terms. The barons ignored the decree. Innocent excommunicated them and the citizens of London and the Five Ports; but Stephen Langton, who had led in formulating the Charter, refused to publish the edict. Papal legates in England suspended Langton, promulgated the decree, raised an army of mercenaries in Flanders and France, and with it ravaged the English nobility with fire and sword, plunder, murder, and rape. Apparently the nobles had no dependable public support; instead of resisting with their own feudal levies they invited Louis, son of the French King, to invade England, defend them, and take the English throne as his reward; had the plan succeeded, England might have become part of France. Papal legates forbade Louis to cross the Channel, and excommunicated him and all his followers when he persisted. Louis, arriving in London, received the homage and fealty of the barons. Everywhere outside of mercantile London John was victorious, and merciless. Then, amid the energy and fury of his triumph, he was struck down by dysentery, made his way painfully to a monastery, died at Newark in the forty-ninth year of his age.
A papal legate crowned John’s six-year-old son as Henry III (1216–72); a regency was formed with the earl of Pembroke at its head; encouraged by this elevation of one of their number, the nobles went over to Henry, and sent Louis back to France. Henry grew into an artist-king, a connoisseur of beauty, the inspiration and financier for the building of Westminster Abbey. He thought the Charter a disintegrating force, and tried to abrogate it, but failed. He taxed the nobles within an inch of revolution, always swearing that the latest levy would be the last. The popes needed money, too, and, with the King’s consent, drew tithes from English parishes to support the wars of the papacy against Frederick II. The memory of these exactions prepared the revolts of Wycliffe and Henry VIII.
Edward I (1272–1307) was less a scholar than his father, and more a king; ambitious, strong of will, tenacious in war, subtle in policy, rich in stratagems and spoils, yet capable of moderation and caution, and of farseeing purposes that made his reign one of the most successful in English history. He reorganized the army, trained a large force of archers in the use of the longbow, and established a national militia by ordering every able-bodied Englishman to possess, and learn the use of, arms; unwittingly, he created a military basis for democracy. So strengthened, he conquered Wales, won and lost Scotland, refused to pay the tribute that John had promised the popes, and abolished the papal suzerainty over England. But the greatest event of his reign was the development of Parliament. Perhaps without willing it, Edward became the central figure in England’s finest achievement—the reconciliation, in government and character, of liberty and law.
4. The Growth of the Law
It was in this period—from the Norman Conquest to Edward II—that the law and government of England took the forms which they maintained till the nineteenth century. Through the superimposition of Norman feudal upon Anglo-Saxon local law, English law for the first time became national—no longer the law of Essex or Mercia or the Danelaw, but “the law and custom of the realm”; we can hardly realize now what a legal revolution was implied when Ranulf de Glanville (d. 1190) used this phrase.43 Under the stimulus of Henry II, and the guidance of his justiciar Glanville, English law and courts acquired such repute for expedition and equity (tempered with corruption) that rival kings in Spain submitted their dispute to the royal court of England.44 Glanville may have been the author of a Treatise on Laws (Tractatus de le gibus) traditionally ascribed to him; in any case it is our oldest textbook of English law. Half a century later (1250–6) Henry de Bracton achieved the first systematic digest in his five-volume classic On the Laws and Customs of England (De legibus et consuetudinibus Angliae).
The King’s rising need for money and troops forced the expansion of the Anglo-Saxon Witenagemot into the English Parliament. Impatient to raise more funds than the lords would vote him, Henry III summoned two knights from each county to join the barons and prelates in the Great Council of 1254. When Simon de Montfort, son of a famous Albigensian crusader, led a revolt of the nobles against Henry III in 1264, he tried to win the middle classes to his cause by asking not only two knights from each county, but also two leading citizens from each borough or town, to join the barons in a national assembly. The towns were growing, the merchants had money; it was worth while consulting these men if they would pay as well as talk. Edward I profited from Simon’s example. Caught in the toils of simultaneous wars with Scotland, Wales, and France, he was constrained to seek the support and funds of all ranks. In 1295 he summoned the “Model Parliament,” the first complete Parliament in English history. “What touches all,” his writ of summons read, “should be approved by all, and … common dangers should be met by measures agreed upon in common.”45 So Edward invited two burgesses “from every city, borough, and leading town” to attend the Great Council at Westminster. These men were chosen by the more substantial citizens in each locality; no one dreamed of universal suffrage in a society where only a minority could read. In the “Model Parliament” itself the “commons” did not at once hold equal powers with the aristocracy. There was as yet no annual Parliament, meeting at its own will as the sole source of law. But by 1295 the principle was accepted that no statute passed by Parliament could be abrogated except by Parliament; and in 1297 it was further agreed that no taxes were to be levied without Parliament’s consent. Such were the modest beginnings from which grew the most democratic government in history.
The clergy only reluctantly attended this enlarged Parliament. They sat apart, and refused to vote supplies except in their provincial assemblies. Ecclesiastical courts continued to try all cases involving canon law, and most cases involving any member of the clergy. Clerics accused of felonies might be tried by secular authorities; but those convicted of crimes short of high treason were, through “benefit of clergy,” handed over to an ecclesiastical court, which alone could punish them. Moreover, most judges in secular tribunals were ecclesiastics, for education in law was largely confined to the clergy. Under Edward I the secular courts became more secular. When the clergy refused to join in voting supplies, Edward I, arguing that those who were protected by the state should share its burdens, directed his courts to hear no cause in which a churchman was plaintiff, but to try every suit in which a cleric was defendant.46 In further retaliation Edward’s Council of 1279, by the Statute of Mortmain, forbade the grant of lands to ecclesiastical bodies without the royal consent.
Despite this divided jurisdiction, English law developed rapidly under William I, Henry II, John, and Edward I. It was a thoroughly feudal law, and bore down heavily on the serf; crimes of freemen against serfs were usually amerced by fines. The law allowed women to own, inherit, or bequeath property, make contracts, sue and be sued, and gave the wife a dower right of one third in her husband’s real property; but all the movable property that she brought to her marriage, or acquired during it, belonged to her husband.47 Legally all land belonged to the king, and was held from him in fief. Normally the whole estate of a feudal lord was bequeathed to the eldest s
on, not only to keep the property intact, but to protect the feudal suzerain from a division of vassal responsibility in dues and war. Among the free peasantry no such rule of primogeniture obtained.
In so feudal a code the law of contract remained immature. An Assize of Measures (1197) standardized weights, measures, and coins, and provided state supervision of their use. Enlightened commercial legislation in England began with the Statute of Merchants (1283) and the Merchants’ Charter (Carta mercatoria, 1303)—two more achievements of Edward I’s creative reign.
Legal procedure slowly improved. To enforce the laws every ward had a “watch,” every borough a constable, every shire a shire-reeve, or sheriff. All men were bound to raise a “hue and cry” on perceiving a violation of the law, and to join in pursuing the offender. Bail was admitted. It is a major credit to English law that torture was not used in examining suspects or witnesses. When Edward II was induced by Philip IV of France to arrest the English Templars, he could find no evidence by which to convict them. Thereupon Pope Clement V, doubtless constrained by Philip, wrote to Edward: “We hear that you forbid torture as contrary to the laws of your land. But no state law can override canon law, our law. Therefore I command you at once to submit those men to torture.”48 Edward yielded; but torture was not again used in English legal procedure till the reign of “Bloody” Mary (1553–8).
The Normans brought to England the old Frank system of inquisitio, or judicial inquiry by a jurata or sworn group of local citizens, into the fiscal and legal affairs of a district. The Assize of Clarendon (c. 1166) developed this “jury” plan by permitting litigants to submit the question of their veracity not to trial by combat but to “the country”—i.e., to a jury of twelve knights chosen from the local citizenry, in the presence of the court, by four knights named by the sheriff. This was the grand assize, or major sitting; in the petty assize, or minor session for the trial of ordinary cases, the sheriff himself chose twelve freemen from the neighborhood. Men shunned jury service then as now, and had no notion that the system would be one of the foundations of democracy. By the end of the thirteenth century verdict by a jury had almost everywhere in England replaced the old tests of barbarian law.
5. The English Scene
England in 1300 was ninety per cent rural, with a hundred towns whose modern successors would rank them as villages, and one city, London, boasting of 40,000 population49—four times more than any other town in England, but far inferior in wealth or beauty to Paris, Bruges, Venice, or Milan, not to speak of Constantinople, Palermo, or Rome. Houses were of wood, two or three stories high, with gabled roofs; often the upper story projected beyond the one beneath. City law forbade emptying the end products of kitchen, bedroom, or bath through the windows, but the tenants of upper stories often yielded to the convenience. Most of the slops from the houses found their way into the current of rain water that ran along the curbs. It was forbidden to cast feces, permissible to empty urinals, into this gutter stream.50 The municipal council did what it could to improve sanitation—ordered citizens to clean the streets before their homes, levied fines for negligence, and hired “rakers” to gather garbage and filth and cart these to dung boats on the Thames. Horses, cattle, pigs, and poultry were kept by many citizens; but this was no great evil, since there were many open spaces, and nearly every house had a garden. Here and there rose a structure of stone like the Temple Church, Westminster Abbey, or the Tower of London, which William the Conqueror had built to guard his capital and shelter distinguished prisoners. Londoners were already proud of their city; soon Froissart would say that “they are of more weight than all the rest of England, for they are the most mighty in wealth and men”; and the monk Thomas of Walsingham would describe them as “of all people almost the most proud, arrogant, and greedy, disbelieving in ancient customs, disbelieving in God.”51
Through these centuries the amalgamation of Norman, Anglo-Saxon, Danish, and Celtic stocks, speech, and ways produced the English nation, language, and character. As Normandy fell away from England, the Norman families in Britain forgot Normandy and learned to love their new land. The mystic and poetic qualities of the Celt remained, especially in the lower classes, but were tempered by Norman vigor and earthiness. Amid the strife of nations and classes, and the blows of famine and plague, the resultant Briton could still make what Henry of Huntingdon (1084?-1155) called Anglia plena iocis—Merry England—a nation of abounding energy, rude jests, boisterous games, good fellowship, a love of dancing, minstrelsy, and ale. From those virile loins and generations would come the hearty sensuality of Chaucer’s pilgrims, and the magnificent bombast of the cultured swashbucklers of the Elizabethan age.
IX. IRELAND—SCOTLAND—WALES: 1066–1318
In the year 1154 Henry II became King of England, and an Englishman, Nicholas Breakspear, became Pope Hadrian IV. A year later Henry sent John of Salisbury to Rome with a subtle message: Ireland was in a state of political chaos, literary decline, moral debasement, religious independence and decay; would not the Pope permit Henry to take possession of the individualistic isle and restore it to social order and papal obedience? If we may believe Giraldus Cambrensis, the Pope agreed, and by the bull Laudabiliter granted Ireland to Henry on condition of restoring orderly government there, bringing the Irish clergy into better co-operation with Rome, and arranging that a penny (83¢) should be paid yearly to the See of Peter for every house in Ireland.52 Henry was too busy at the time to take advantage of this nihil obstat; but he remained in a receptive mood.
In 1166 Dermot MacMurrough, King of Leinster, was defeated in war by Tiernan O’Rourke, King of Brefni, whose wife he had seduced. Expelled by his subjects, he fled with his beautiful daughter Eva to England and France, and secured from Henry II a letter assuring royal good will to any of his subjects who should help Dermot to regain the Leinster throne. At Bristol Dermot received from Richard FitzGilbert, Earl of Pembroke in Wales, known as “Strongbow,” a pledge of military support in return for Eva’s hand in marriage, and the succession to Dermot’s kingdom. In 1169 Richard led a small force of Welshmen into Ireland, restored Dermot with the help of the Leinster clergy, and, on Dermot’s death (1171) inherited the kingdom. Rory O’Connor, then High King of Ireland, led an army against the Welsh invaders, and bottled them up in Dublin. The besieged made an heroic sortie, and the ill-trained and poorly equipped Irish fled. Summoned by Henry II, Strongbow crossed to Wales, met the King, and agreed to surrender to him Dublin and other Irish ports, and to hold the rest of Leinster in fief from the English crown. Henry landed near Waterford (1171) with 4000 men, won the support of the Irish clergy, and received the allegiance of all Ireland except Connaught and Ulster; the Welsh conquest was turned into a Norman-English conquest without a battle. A synod of Irish prelates declared their full submission to the Pope, and decreed that thereafter the ritual of the Irish Church should conform to that of England and Rome. Most of the Irish kings were allowed to keep their thrones, on condition of feudal fealty and annual tribute to the king of England.
Henry had accomplished his purpose with economy and skill, but he erred in thinking that the forces which he left behind him could sustain order and peace. His appointees fought one another for the spoils, and their aides and troops plundered the country with a minimum of restraint. The conquerors did their best to reduce the Irish to serfdom. The Irish resisted with guerrilla warfare, and the result was a century of turmoil and destruction. In 1315 some Irish chieftains offered Ireland to Scotland, where Robert Bruce had just defeated the English at Bannockburn. Robert’s brother Edward landed in Ireland with 6000 men; Pope John XXII pronounced excommunication upon all who should aid the Scots; but nearly all Irishmen rose at Edward’s call, and in 1316 they crowned him King. Two years later he was defeated and slain near Dundalk, and the revolt collapsed in poverty and despair.
The Scots, said Ranulf Higden, a fourteenth-century Briton, “be light of heart, strong and wild enough; but by mixing with Englishmen, they be much amended. Th
ey be cruel upon their enemies, and hate bondage most of anything, and hold it foul sloth if any man dieth in bed, and great worship if he die in the field.”53
Ireland remained Irish but lost its liberty; Scotland became British, but remained free. Angles, Saxons, and Normans multiplied in the lowlands, and reorganized agricultural life on a feudal plan. Malcolm III (1058–93) was a warrior who repeatedly invaded England; but his Queen Margaret was an Anglo-Saxon princess who, converted the Scottish court to the English language, brought in English-speaking clergy, and reared her sons in English ways. The last and strongest of them, David I (1124–53), made the Church his chosen instrument of rule, founded English-speaking monasteries at Kelso, Dryburgh, Melrose, and Holyrood, levied tithes (for the first time in Scotland) for the support of the Church, and gave so lavishly to bishops and abbots that people mistook him for a saint. Under David I Scotland, in all but its highlands, became an English state.54
But it was not the less independent. The English immigrants were transformed into patriotic Scots; from their number came the Stuarts and the Bruces. David I invaded and captured Northumberland; Malcolm IV (1153–65) lost it; William the Lion (1165–1214), trying to regain it, was taken prisoner by Henry II, and was freed only on pledging homage to the king of England for the Scottish crown (1174). Fifteen years later he bought release from this pledge by helping to finance Richard I in the Third Crusade, but the English kings continued to claim feudal suzerainty over Scotland. Alexander III (1249–86) recovered the Hebrides from Norway, maintained friendly relations with England, and gave Scotland a golden age of prosperity and peace.
At Alexander’s death Robert Bruce and John Balliol, descendants of David I, contested the succession. Edward I of England seized the opportunity; by his support Balliol was made King, but acknowledged the overlordship of England (1292). When, however, Edward ordered Balliol to raise troops to fight for England in France, the Scotch nobles and bishops rebelled, and bade Balliol make alliance with France against England (1295). Edward defeated the Scots at Dunbar (1296), received the submission of the aristocracy, dethroned Balliol, appointed three Englishmen to rule Scotland for him, and returned to England.
