costs of asserting and administering justice and the incomings and outgoings of the Exchequer were but different aspects of the same fundamental concerns of state.[7] The justices of the Curia who held court on circuit throughout the realm and the sheriffs who came up twice a year to render to the barons of the Exchequer an account of the sums due from the shires served as the real and tangible agencies through which the central and local governments were knit together. As will appear, it was from the Norman Curia that, in the course of time, there sprang immediately those diversified departments of administration whose heads comprise the actual executive of the British nation to-day.
8. King and Great Council.—Untrammelled by constitutional restrictions, the Conqueror and his earlier successors recognized such limitations only upon the royal authority as were imposed by powerful and turbulent subjects. Associated with the king, however, was from the first a body known as the Commune Concilium, the Common, or Great, Council. "Thrice a year," the Saxon Chronicle tells us, "King William wore his crown every year he was in England; at Easter he wore it at Winchester; at Pentecost, at Westminster; and at Christmas, at Gloucester; and at these times all the men of England were with him—archbishops, bishops and abbots, earls, thegns and knights." By the phrase "all the men of England" is to be understood only the great ecclesiastics, the principal officers of state, and the king's tenants-in-chief—in truth, only such of the more important of these as were summoned individually to the sovereign's presence. At least in theory, however, the Norman kings were accustomed to consult this gathering of magnates, very much as their predecessors had been accustomed to consult the witenagemot, upon all important questions of legislation, finance, and public policy. It may, indeed, be said that it is the development of this Council that comprises the central subject of English constitutional history; for, "out of it, directly or indirectly, by one process or another, have been evolved Parliament, the Cabinet, and the courts of law."[8]
9. The Plantagenet Monarchy.—During the century and a half following the death of the Conqueror the vigor of the monarchy varied enormously, but not until the days of King John can there be said to have been any loss of power or independence which amounted to more than a passing circumstance. In a charter granted at the beginning of his reign, in 1100, Henry I. confirmed the liberties of his subjects and promised to respect the laws of Edward the Confessor; but the new sovereign did not propose, and no one imagined that he intended to propose, to relax any of the essential and legitimate power which had been transmitted to him by his father and brother. The reign of Stephen (1135–1154) was an epoch of anarchy happily unparalleled in the history of the nation. During the course of it the royal authority sank to its lowest ebb since the days of the Danish incursions. But the able and wonderfully energetic Henry II. (1154–1189) recovered all that had been lost and added not a little of his own account. "Henry II.," it has been said, "found a nation wearied out with the miseries of anarchy, and the nation found in Henry II. a king with a passion for administration."[9] With the fundamental purpose of reducing all of his subjects to equality before an identical system of law, the great Plantagenet sovereign waged determined warfare upon both the rebellious nobility and the independent clergy. He was not entirely successful, especially in his conflict with the clergy; but he effectually prevented a reversion of the nation to feudal chaos, and he invested the king's law with a sanction which it had known hardly even in the days of the Conqueror. The reign of Henry II. has been declared, indeed, to "initiate the rule of law."[10] By reviving and placing upon a permanent basis the provincial visitations of the royal justices, for both judicial and fiscal purposes, and by extending in the local administration of justice and finance the principle of the jury, Henry contributed fundamentally to the development of the English Common Law, the jury, and the modern hierarchy of courts. By appointing as sheriffs lawyers or soldiers, rather than great barons, he fostered the influence of the central government in local affairs. By commuting military service for a money payment (scutage), and by a revival of the ancient militia system (the fyrd), he brought the control of the armed forces of the nation effectually under royal control. By the frequent summons of the Great Council and the systematic reference to it of business of moment he contributed to the importance of an institution through whose amplification a century later Parliament was destined to be brought into existence.
10. The Great Charter, 1215.—The period of Richard I. (1189–1199) was, in constitutional matters, a continuation of that of Henry II. Richard was absent from the kingdom throughout almost the whole of the reign, but under the guidance of officials trained by Henry the machinery of government operated substantially as before. Under John (1199–1216) came a breakdown, occasioned principally by the sovereign's persistence in evading certain limitations upon the royal authority which already had assumed the character of established rules of the constitution. One of these forbade that the king should impose fresh taxation except with the advice and consent of the Great Council. Another enjoined that a man should not be fined or otherwise despoiled of his property except in virtue of judicial sentence. These and other principles John habitually disregarded, with the consequence that in time he found himself without a party and driven to the alternative of deposition or acceptance of the guarantee of liberties which the barons, the Church, and the people were united in demanding of him. The upshot was the promulgation, June 15, 1215, of Magna Carta.
No instrument in the annals of any nation exceeds in importance the Great Charter. The whole of English constitutional history, once remarked Bishop Stubbs, is but one long commentary upon it. The significance of the Charter arises not simply from the fact that it was wrested from an unwilling sovereign by concerted action of the various orders of society (action such as in France and other continental countries never, in mediæval times, became possible), but principally from the remarkable summary which it embodies of the fundamental principles of English government in so far as those principles had ripened by the thirteenth century. The Charter contained little or nothing that was new. Its authors, the barons, sought merely to gather up within a reasonably brief document those principles and customs which the better kings of England had been wont to observe, but which in the evil days of Richard and John had been persistently evaded. There was no thought of a new form of government, or of a new code of laws, but rather of the redress of present and practical grievances. Not a new constitution, but good government in conformity with the old one, was the essential object. Naturally enough, therefore, the instrument was based, in most of its important provisions, upon the charter granted by Henry I. in 1100, even as that instrument was based, in the main, upon the righteous laws of Edward the Confessor. After like manner, the Charter of 1215 became, in its turn, the foundation to which reassertions of constitutional liberty in subsequent times were apt to return; and, under greater or lesser pressure, the Charter itself was "confirmed" by numerous sovereigns who proved themselves none too much disposed to observe its principles.
In effect the Charter was a treaty between the king and his dissatisfied subjects. It was essentially a feudal document, and the majority of its provisions relate primarily to the privileges and rights of the barons. None the less, it contains clauses that affected all classes of society, and it is especially noteworthy that the barons and clergy pledged themselves in it to extend to their dependents the same customs and liberties which they were themselves demanding of the crown. Taking the Charter as a whole, it guaranteed the freedom of the Church, defined afresh and in precise terms surviving feudal incidents and customs, placed safeguards about the liberties of the boroughs, pledged security of property and of trade, and stipulated important regulations respecting government and law, notably that whenever the king should propose the assessment of scutages or of unusual aids he should take the advice of the General Council, composed of the tenants-in-chief summoned individually in the case of the greater ones and through the sheriffs in the case of those of lesser importance. Certain general clauses, e.g., that pledging that justice should neither be bought nor sold, and that prescribing that a freeman might not be imprisoned, outlawed, or dispossessed of his property save by the judgment of his peers or by the law of the land, meant in effect considerably less than they sometimes have been interpreted to mean.[11] Yet even they served to emphasize the fundamental principle upon which the political and legal structure was intended to be grounded, that, namely, of impartial and unvarying justice.[12]
IV.
