1154-1189.]

CONSTITUTIONS OF CLARENDON.

41

have left their traces on the constitution of the present day, they provided that all suits concerning the advowsons of churches, and all clerks accused of crime, should be prosecuted in the civil courts; and they mitigated the power of excommunication and prosecution in ecclesiastical courts, possessed by the clergy. They enacted that all appeals in spiritual cases should be carried, after their passage through the successive ecclesiastical courts, to the king; and should be carried no further, (in other words, to the Pope of Rome,) without his consent. They provided that the archbishops, bishops, and other spiritual dignitaries, should be regarded as barons of the realm, and be subjected to the duties belonging to their rank; and they were required, like other barons, to attend the Curia Regis, until the court exercising criminal jurisdiction should proceed to judgment of loss of limb, or death. They also provided that the revenue of vacant sees should belong to the king; that the chapter, or such of them as he pleased to summon, should sit in the king's chapel till they made a new election to supply a vacancy, with his consent; that the bishops elect should do homage to the Crown; that the clergy should no longer pretend to the right of enforcing payment of debts contracted by oath or promise; and should leave their lawsuits, equally with others, to the civil courts.1

Notwithstanding Henry's subsequent difficulties with the Pope and his legates, which arose out of the murder of Thomas à Becket, he contrived to maintain the Constitutions of Clarendon in force during his life; and, with the advice or assistance of his justiciary Glanvil, he made many new laws, by which he modified or changed the AngloSaxon jurisprudence, and acquired the reputation of being the founder of the Common Law. He enacted severe laws. against robbery, murder, false coining, and arson; and ordained that these crimes should be punished by amputation of the right foot. Pecuniary commutation for crimes

1 Brady's History of England (1685), Appendix, p. 382. Hume's History, vol. i. ch. 8.

was thus in effect abolished; and Henry discouraged, although he did not supersede, trials by ordeal, and duel or battle, which had been introduced by the Conqueror. He admitted the accused to challenge a trial by an assize or jury of twelve freeholders. He divided the kingdom into four circuits or districts, and appointed itinerant justices to travel the circuits, and to hold courts within them for the decision of suits. These justices were invested with great power and authority; they determined pleas of the crown, and common pleas, in like manner as the justices of the Curia Regis; they also assessed tallages and aids upon the king's demesnes. To curb the oppressions of the barons, and to remove the obstacles which they opposed to the administration of justice, the King caused their castles to be demolished. He also made a very important change in military tenures, by commuting the military service of the barons for money; which, under the names of escuage, scutage, or shield-money, was levied on the baronies and knights'-fees, in lieu of the render of knights and men. He took advantage of the zeal for the Crusades to levy a tax on the movable or personal property of his subjects, nobles as well as commoners, and clergy as well as laity ;and thus laid down a precedent of equal taxation, which became a fundamental principle of the constitution.3

This prince subdued Ireland, and annexed it to the English crown, his title being confirmed by grant from the Pope. So dreaded was the power of the Pope to excommunicate princes, that even this high-spirited monarch, for the

1 66 Although Henry II. was not, in strictness, the inventor of the legal constitution which succeeded to the Anglo-Saxon polity, yet 'trial by the country' owes its stability, if not its origin, to his jurisprudence." (Palgrave's Commonwealth, vol. i. p. 243.) Lord Littleton writes, "The first introduction of trial by jury, in causes relating to the title of land, which before had been tried by duel, is ascribed to Henry II., and may well be esteemed a principal glory of his reign." (Life of Henry II., vol. iii. p. 234.)

2 Madox's Exchequer, vol. i. pp. 122-125.

3 Brady's History, p. 344. Hume's History, vol..i. ch. 9.

1154-1189.]

RICHARD I.

43

part he took in the murder of Thomas à Becket, did penance by walking barefoot to the tomb of the "holy martyr," at Canterbury, there submitting to be whipped on his bare back by the monks. But under his temporal government England prospered: it recovered from the shock of the Norman conquest, its commerce revived, the people became more obedient to the law, and the lower orders, particularly the inhabitants of cities and boroughs, increased in wealth and importance.1

RICHARD I., surnamed Cœur de Lion, succeeded his father, Henry, in 1189: he became infatuated by the Crusades, and he devoted all his power and energy to raise money for his expedition to the Holy Land. The nation was not, in his reign, benefited by any advance in constitutional government; but its prosperity was increased by the diffusion of property, as he supplied his wants, to a large extent, by the sale of crown lands, and by grants of property and privileges to many cities and boroughs. Municipal Charters began to be granted in his reign, giving the borough, often with adjacent lands, in perpetuity to the inhabitants as burgesses; and freedom from tallage or taxation in exchange for a perpetual fee-farm rent to the king or lord. These charters, however, did not incorporate the boroughs as municipal corporations, in the modern sense, of giving them a perpetual name and existence, with various legal powers; no such charter of municipal incorporation having been granted before the reign of Henry VI.;2 but they produced a combination and common interest in the

1 Peers' Report, vol. i. p.52. Sir H.Spelman says, "But there happened about this time a notable alteration in the commonwealth: lords and owners of towns, which before manured their lands by tenants-at-will, began now to grant their estates in fee, and thereby to make a great multitude of freeholders more than had been, who, by reason of their several interests, and being not so absolutely tied to their lords as in former times, began to be of a more eminent part in the commonwealth, and more to be respected therefore in making laws to bind them and their inheritance." (Spelman on Parliaments.)

2 Merewether on Boroughs, vol. i., introduction.

inhabitants, which led to self-government, and gave them the means for protecting themselves, not only against the encroachments of the lord, but against interference with their trade; and it was not long before the boroughs obtained public influence and importance, that could not have been acquired by individual residents in the boroughs.

Monasteries greatly increased during the reigns of Henry I., Stephen, and Henry II. The author of the "Notitia Monastica" computes the number at not less than 300; more monasteries and religious houses being founded in the kingdom in these reigns than in five hundred years before. The lands with which they were endowed were held by the tenure of frankalmoigne, or free alms.2

The absence of the King during the greater part of his reign withdrew all attention from state affairs; but the prosperity of the nation was silently advancing. Property, by the course of natural events,—by marriages and deaths, by the division of lands among female coheirs, by subinfeudation and sales (the latter greatly stimulated by the desire of promoting the Crusades), by forfeitures and escheats and regrants from the Crown,-became divided and diffused, and the lands of the kingdom passed into numerous hands. The industry of the boroughs, and the application of it to manufactures, produced or greatly extended personal property; and the increase and diffusion of wealth prepared and prompted the nation to demand the changes which will be described in the next chapter.3

1 Littleton's Henry II., vol. ii. p. 329. 2 Ellis's Domesday Book, p. 252.

3 Peers' Report, vol. i. p. 32.

John's Accession contrary to Primogeniture.-Loss of Normandy.-His Vassalage to the Pope.-Combination of the Barons.—Demand of a Charter.-John gains over the Pope.-War declared.-Conference.Magna Charta.-Its Form and Scope.-Liberties to the Church.The Feudal Lords and Vassals.-To Towns and Trade.-For the Administration of Justice.-To Freemen.-Its Constitutional Principles of Government.-Security for its Observance.-Charter of the Forest, -John's Death.-Confirmations by Henry III.-Religious Ceremony. -Edward I.-Confirmatio Chartarum.-Articuli super Chartas.-Statutes of Confirmation.

JOHN, on the death of his brother Richard, possessed himself of the duchy of Normandy, and afterwards of the crown of England, to the prejudice of Arthur, Duke of Bretagne, the son of his elder brother, Geoffrey,—a proof that the law of primogeniture in the descent of the crown had not taken strong hold of the nation, or a design so flagitious would not have been successful.

The foreign provinces held with the duchy of Normandy were more influenced by the law of feudal descent. They espoused the right of Arthur, and called on Philip Augustus, King of France, as their paramount lord, to support the rightful heir. A war followed between John and Philip, but