The word “feudalism” is little more than a rough generalisation or formula under which we try to include such conditions, economic, social, and governmental, as are found to be common and uniform throughout the lands and peoples which were once parts of the Western Roman Empire, in that obscure period of rapid change between the dismembering of the Carolingian Empire and the growth of national States.
In a period so long as this, when conditions were changing so rapidly, it is inevitable that many conflicting elements, forces, and tendencies should be found together at every stage of the development, and still greater differences between different historical stages of the growth even of a single common institution or idea.
It is fortunately not within the scope of this chapter to discuss the vexed and disputed questions of the origin of these varying elements or of their relative importance. From the establishment of the Frankish Empire a development may be clearly traced which in time superseded the regime of the personality of law resulting from the “wandering of the peoples”, and substituted for it the restored Roman idea of territoriality; and later, when the cohesive force of the Frankish Empire became weakened and that Empire again fell in pieces, these pieces retained the main characteristic they had acquired under their Frankish rulers, the principle of territoriality. The primitive Germanic conception of law as tribal custom was by no means obliterated, but it was now the law of peoples who had settled homes and determinate geographical boundaries, whose jurisdiction was complete over all the inhabitants within those boundaries, of whatever race, and limited only by those boundaries themselves. It was a period of the complete territoriality of law, in the absence more or less complete of all coercive central authority, a regime when small territories, each practically independent of all the rest and of all central authority, and each with its own customary law binding upon all within its boundaries, were the rule; and for a time the process of subdivision was making these little territorial units ever more numerous and more minute.
When this process of subdivision reached its limit, and the counter-process began of the gradual accretion of fiefs which was ultimately to develop into the great national States of Western Europe, the course and direction of that development were determined by the institutions and ideas which had become established within the scattered territorial units from which the later States were ultimately formed. Prominent among these institutions and ideas was that of law as the custom of the people within a territory, the more utentium, a ius non scriptum whose beginning was beyond memory and whose transmission was by oral tradition. Since the law was the usage of the people, it was the people alone who could know it. Hence, when concrete cases arose requiring the application of the law, it was the people of the district alone who could “find” it, and this became one of the chief functions of the “courts” of the district. As Gneist points out, however, it was an equally marked characteristic of all these assemblies or courts that there was in them no differentiation of functions, such as we know in modern times, and no conscious distinction between finding a law in general and administering it in an individual case. No doubt these general duties had been performed in earlier times by all, or at least by all who were regarded as qualified. But later there was a tendency everywhere to restrict these duties to a smaller number, as in the scabini on the Continent, or the reeve, the priest, and the four men from each township, as mentioned in English documents of the reign of Henry I. The finding and the administering of law alike were then both communal and territorial, and a survey of European procedure at this time shews how widely it differed from the Roman procedure with its normal trial by a single index. This difference is of fundamental importance and lies at the very roots of modem constitutionalism. The Roman index was a real judge in our modem sense, even though he was guided by the formula of a magistrate in his decision. He weighed both sides of the case, and pronounced a real judgment upon the weight of the evidence. The whole rationale of the judicial system of Western Europe in the feudal period was strikingly different. In imitation of Rome, the suitors who administered these courts might be called indices, as they are, for example, in the Leges Henrici Primi, in the case of England, early in the twelfth century; but their functions are in reality markedly different. They weigh no evidence, for properly speaking there is no evidence. They reach no judgment, for there is no place for any judgment. They merely “award the proof”. Judicial discretion and a rational system of weighing evidence are the marks of the matured judicial procedure of the Roman Empire, and judicial discretion may be exercised by a single iudex as well as by a number, if not better. But the cruder law of the feudal age knew no discretion, and very little rationalism. If ever there was “a government of laws and not of men,” it was at that time. It was a formal, rigid, one-sided procedure. Nothing was left to the discretion of any human judge, as is immediately disclosed by an inspection of the tariffs of compositions in such a “code” as the Lex Frisionum, or of the mechanical list of formal essonia, or lawful excuses for non-appearance at court, even as late as Bracton’s time. It was not the business of the members of these medieval courts to give a judgment. It was not their discretion that was wanted; it was their knowledge, the knowledge of the unwritten law of the district of which they alone were possessed, or the acquaintance with the local reputation of an accused man, which might affect the award of proof. That proof once awarded, whether it was a trial by reputation, as in compurgation, or some form of the Indicium Dei, as the ordeal or duel, the rest was mechanical. If the accused succeeded, he was free; if not, he was guilty. There was an equal lack of discretion whether the trial was civil or criminal, as we should say. Trial by witnesses, when possible, was not, as now, the admission of witnesses to inform an impartial arbiter; it was merely the introduction of persons who had been officially present as formal witnesses when the original transaction took place. And their introduction was as final and decisive as the result of an ordeal or of trial by battle. Such witnesses swore only a formal oath. They were never sworn to tell the truth on their consciences. They appeared to swear with the defendant. They could not possibly be introduced to swear against him
In this system the duties of the presiding officer were as mechanical as those of the members of the court over whom he kept order, and whose findings he pronounced. Not till a comparatively late period did he begin to acquire, mainly, I think, by delegation from the king, a discretionary power, which in time gradually developed into that of the Roman index or the modern judge.
The judicial work of these medieval courts was performed by the members of the community, or by a selected portion of them “representing” the community and necessarily fairly large in numbers. Had their duties required discretion, one “judge” might have been enough, but since instead they required knowledge—a knowledge of the customs and of the people of the district—a considerable number became necessary, and these had to be “representative” in the sense that they would be persons of the district who knew their neighbours and were acquainted with the customary law in force there from time immemorial, more utentium; an acquaintance, as Glanville says of the Grand Assize in England in the twelfth century, which they have gained from what they themselves have seen and heard, “vel per verba patrum suorum et per talia quibus fidem teneantur habere in propriis.”
The point is that the general business of these undifferentiated “courts” was everywhere such that it could be carried on only by those acquainted with the men and the customs of the country. Thus it was that when the inquisitio or inquest was in time introduced among the older forms, at the instance of the king in England, it retained the old communal basis. It still required, like the older procedure to which it was in many respects closely akin, knowledge rather than judgment, and a knowledge which could not safely be got from one but only from many. Though the true jury, when it came, came from above and not below, as Maitland shews, and though it implied an answer on oath to a question which unlike the older procedure might be either Yes or No, still it was, as its name implies, like its communal predecessors, a trial per patriam, per pais, by “the countryside.”
The striking contrast between all these pieces of medieval judicial machinery and the iudex of Rome lies in the fact that it was knowledge, not judgment, that a medieval court wanted; and that knowledge of the things needed for a decision required a considerable number of neighbours, while judgment may be safely exacted from a single individual regardless of his knowledge. Thus medieval procedure was based on a knowledge of the community by the community, and this could safely be found only from that community. When the practice arose of drawing this knowledge from a number selected from this community pro omnibus, the earliest foundations of modern representative institutions were laid. The great fact is that the procedure of the Middle Ages required a fairly considerable number of “representatives” of the community to make it really effective, under the ideas of law and of proof as they existed at that time.
Early in the eighth century the Lombard laws furnish an interesting illustration of these Germanic ideas of fixed customary law and of the struggle for the mastery between them and the Roman conception of the arbitrament of the iudex. Among the Lombards, it is recited in the laws— “alii per consuitutinem, alii per arbitrium iudicare aestimabant”; and the resulting uncertainty was so great that it was found necessary to call together the iudices et fideles in the fourteenth year of King Liutprand, “ut nullus error esse deberet, sed omnibus manifesta clariscere lex.” The Lombards, of course, were far in advance of most Germanic nations in their legal development at this time.
These general characteristics of medieval procedure are to be found in all parts of Western Europe at this time and in all kinds of courts, feudal, seignorial, communal, or royal. In some places the development of feudalism tended at times to turn communal courts into seignorial ones, and often also to shift the burden of attendance at the court from the community as a whole upon the tenants of definite pieces of land within it. But, in any case, that burden of suit remained, and in all the courts of whatever kind the procedure continued to be one requiring the concerted action of a considerable number of the men of the neighbourhood. Thus whether it was the custom of the manor or the feudal law of the fief that was to be found, that law would be ascertained from a sufficient number of men of the district who knew it.
Locally this required, in the court of the district, “representatives” from the community if they were not all present in person. The presence of these representatives in early times does not, of course, imply their “election” in our modern sense. Till a comparatively late date we know little of how they were chosen, but it is as likely, if not more likely, that they were appointed as that they were “elected”. Eligere is an elastic word in medieval documents, from which too much should not be inferred. Furthermore, these representatives of the community were chosen—however they were chosen—to perform a duty, to acquit their community of a burden. It was no privilege they enjoyed. Sometimes, indeed, this has been compared to modern representative institutions, and it has something in common with them. But this representing of the community was not then an honour. If it must be compared with something modern to which it has little practical resemblance, it would be fitter to compare it with our jury service than with membership in a modern legislative body. Nevertheless, burden though it was, it contained and it continued the practice, and even the theory, that lies at the roots of modern representative institutions—not the practice alone, but the theory as well. A proof of this exists in the wording of English official documents of the eleventh and early twelfth centuries. We know absolutely that at that time, in both the hundred and the county court, each township was “represented” by six persons at most. Yet, for both hundred and hundred court, there was used but one word, the word hundredus: while in like fashion a single word, comitatus, had to do duty alike for the shire and the shire court. In short, the hundredus was both the hundred and the hundred court— they were theoretically the same, though in actual fact widely different; and the comitatus meant equally the county and the county court, though but a small proportion of the whole county actually attended that court. Theoretically the county and the county court were the same. Actually they were not. The fiction of “representation” alone can explain this identity. There must have been in existence some theory of representation as well as the fact.
Possibly an even clearer indication of this may be seen in the statement made by the author of the Leges Henrici Primi written in the reign of Henry I of England. After a statement that a lord or his steward who has a right to do so may acquit the lord’s demesne lands in the hundred of the suit in the hundred court due from them, he goes on to say that if the lord or his steward is unable to be present, then “prepositus et sacerdos et IIII de melioribus ville assint pro omnibus qui nominatim non erunt ad placitum submoniti.”
When the courts began in England to feel the strong hand of the Norman kings and the process of administrative centralisation started, these germs of representation, instead of dying out, developed a stronger growth. The documents of this period prove that the kings retained the old communal courts of the hundred and shire of set purpose. They also began the process of unifying them, chiefly through the activity of the royally appointed sheriff and later through the justices in eyre. With the growth of the eyre system and largely through the increasing practice of drawing cases by royal writ from other courts to the King’s Court, it became increasingly necessary that these royal courts should be certified of the proceedings already taken in the other courts from which the cases were drawn away. The King’s Courts required a bringing up of the “record” from the court, whether manorial or communal, in which the case had begun. In the days before the proceedings of these courts were written, this “record” was only in the minds of the men of the court, not in writing. Hence the “bringing up of the record” was the bringing up of a man or men, not of a written document.
So section 4 of Henry II’s Assize of Clarendon, in 1166, prescribes that when the sheriff brings violators of the assize before the itinerant justices for trial, he shall bring along with them “from the hundred and the township where they were arrested ‘duos legales homines ad portandum recordationem comitatus et hundredi, quare capti fuerint’.” Professor G. B. Adams has pointed out a number of cases of the same practice in Bracton’s Note Book, one in 1226 where four discreet knights of the county and four of the king’s servientes were to come “ad certificandum Dominum Regem”; another in 1219 when the sheriff is directed to have before the royal justices the record “per quatuor milites de comitatu qui recordo illi interfuerunt”; another in 1220 when the knights are said to speak pro comitatu; one in 1230 where three knights are said to come pro toto comitatu; and several more. The number might easily be increased. “Here,” says Professor Adams, “was certainly a direct line of connexion between the county court and the king’s council, already established and in frequent use.” He sees in the first recorded appearance of the knights of the shire in parliament, in 1254, a repetition of this procedure in matters of parliamentary grant instead of in a trial, and he finds in these earlier judicial practices the precedent and the justification for the extra-feudal practice initiated in 1254 of summoning the representative knights as well as the tenants-in-chief to a parliament. This acute suggestion of Professor Adams, a suggestion amply supported by contemporary records, really enables us to trace a continuous development of the practice and the theory of representation in England from the end of the Anglo-Saxon period through the fundamental reforms of William I, Henry I, and Henry II, by which the royal administration was unified and extended, down to the period of the appearance of the first surviving record of a summons of representative knights of the shire to parliament in 1254. It is a matter of the greatest consequence.
This development, however, seems not to have been confined to the representative knights. It appears, though considerably later and much less clearly, in the representation of burgesses as well, long before the time of the Earl of Leicester’s parliament of 1265, when we have the first record of the appearance of representative burgesses in a parliament for the whole realm. In section 12 of John’s charter, after the promise that scutage and extraordinary aids should be imposed only with the common assent of the realm, provision is made that in case of aids from the city of London the procedure shall be simili modo. From the time of Sir Henry Spelman to the present, the meaning of simili modo has been an enigma. Spelman himself seemed to think the words implied representation in the king’s Curia, and was therefore surprised to find no appearance of any burgesses in the records of the years following I215. Professor Adams, on the other hand, believes that these words indicated merely that London and London alone of all English towns had a commune, and therefore an independent feudal status which placed it on a par feudally with the tenants-in-chief already mentioned in this section of the document, and that this of course implies the necessity of consent to aids, but apparently not necessarily any representative from the city in any Curia where the collective consent of the tenants-in-chief was obtained.
However this may be, the fact is that there is no surviving record of the presence of these borough representatives before the parliament of Simon de Montfort in 1265. But as in the case of the representative knights, there is a long local history behind this first known appearance of burgesses in a central assembly. For example, in 1231 the sheriff of Yorkshire is directed by writ to present before the justices itinerant on their coming into the county, not only the nobility and higher clergy, the knights and the free tenants of the county, but twelve legal burgesses from each borough and all others “who usually are and ought to be” there, to assist in the trial of the pleas of the Crown and others. Cases might be multiplied, and it is clear that the words of Stubbs applied to the knights of the shire are almost equally applicable to the townsmen as well: “a consolidated body of men trained by a century and a half of common interests and common work.”
In recent years a tendency has appeared in certain quarters to criticise the masterly account of these developments by Bishop Stubbs, on the ground that he understates the importance of the clergy in shaping their course and attaches “too much weight in comparison to the old communal institutions of England, such as the attendance of the four men and the reeve at hundred and shire court, and to the influence of the judicial procedure of Henry II.” The reductio ad absurdum of Professor Barker’s temperate thesis on this subject is found in a recent American study of representative government where it is baldly declared that: “The Church originated representative institutions; the State adopted them”. To make such a declaration one must either be totally ignorant of the meaning and significance of the striking and continuous series of evidences of representative ideas and institutions running back to the very Conquest in England and even beyond, or he must consider himself able to explain them as not really representative in character. One way of doing the latter is to attempt, as Dr Barker does, to distinguish between the mere representation “to give information” (ad recognoscendum) in the earlier English instances and the true representation “to take action” (ad faciendum), supposed to occur only at a later period and as the result of clerical ideas and institutions.
But against this view several serious objections may be urged. It implies a distinction between central and local institutions which is too sharp and too modern; it depends upon a sharp cleavage between the ideas of representation for information and representation for action, for which there is little contemporary evidence in the thirteenth century and before; and it is greatly weakened by the fact that there were no Dominicans in England before 1221, yet it is to the Dominicans that the institutions of representation are mainly attributed. It is true enough, as has been urged in support of this view, that our earliest surviving official record of the idea of representation on anything like a national scale, the writ of King John in 1213 for the return of “four discreet knights” from the counties of England, probably had no practical result, since we have no record of their actual meeting; but the writ itself nevertheless is evidence of the existence of the idea in 1213, some years before the development of the Dominican constitution or its transfer to England; and it is noteworthy that the four discreet knights were summoned not merely ad recognoscendum, but ad loquendum nobiscum de negotiis regni nostri. In local matters it is equally impossible to distinguish clearly between information and action in numberless cases, and the distinction between the local occurrence of representation and its use in a national assembly is one that strikes us as it does only because we know its later developments; to contemporaries it was insignificant and unimportant. The contemporary chroniclers give no attention whatever to the first English case of borough representation which we consider so epoch-making. To them it was only a slight modification of ideas and practices long familiar to them in the county court. Knights and burgesses had been co-operating for generations with the iusticiarii on their circuits throughout the counties of England, and these iusticiarii were in fact, if not in theory, members of the king’s central Curia. The clergy no doubt contributed a large part of the later development of representation; truly to assert that they “originated” it is impossible in face of the overwhelming evidence to the contrary.
In 1254 in England, for the first time so far as we have evidence surviving, these local practices and ideas were incorporated in the national assembly or Curia, and in order to understand the working of the “estates” that resulted, a brief review of the earlier history of the Curia itself is necessary.
Though in an earlier period the English national assembly—and the local assemblies as well—had in all probability been a real folc mote in the same sense and of much the same kind as the meetings of the warriors of the civitas or tribe as described in the Germania of Tacitus, long before the Norman Conquest it had turned into a select body of comparatively few magnates, elders, or sapientes, a witenagemot, in which the “wisdom” which constituted the supposed qualification for membership was coming more and more to consist in royal favour and wide estates. This body survived the Conquest and is frequently referred to in the gradually expiring “Anglo-Saxon Chronicle” by the old names of Witan or Mickelgemot. But its character was changed. Even before the Conquest, if we may accept the brilliant suggestions of Professor H. M. Chadwick, feudal tendencies had long been at work upon it, and the Conquest at a stroke completed the development. The drastic confiscation of the lands of the greater English lords and the wholesale transfer of these lands by the Conqueror to a completely new set of Norman tenants-in-chief are not only the beginning of the English land law; they mark the complete transformation of the English national assembly. It became completely feudalised. Tenure became the single basis of the vassals’ obligation which entitled the king as their feudal overlord to demand the services of such of them as he chose in the administration of the fief, and the fief was a kingdom; hence the court was the Curia Regis. The list from which he might choose in 1086 is the list of tenants-in-chief set forth in Domesday Book, as printed in Sir Henry Ellis’ Introduction. In fact, he chose few, and some of these, for practical reasons, he could not well omit. But the regularity of the summons to great officials, such as the Chancellor or Treasurer, is owing, not to any constitutional rule that gives them a “right” to be present, but only to the practical necessity of their presence with their records and seals in order to get business done. No one, in fact, had any right to attend. All tenants-in-chief were bound to do so. It was the king’s right to summon them all, and he summoned whom he would or whom practical necessity required.
The Barons and the Council
Thus the first and oldest medieval estate emerges in England. It is the estate of the barones or feudal tenants-in-chief, both spiritual and lay, a fraction of which, and not always the same fraction, was summoned by the king from time to time to his Councils. Thus it remained in general till the afforcement in 1254 by the introduction of representative knights of the shire. But it would be premature to attach the name “estate” to such a body in the Norman period. Such a term was not applied, and could hardly be applied to the body of tenants-in-chief in England, before that body began to act and to think collectively. In the eleventh and twelfth centuries these tenants are referred to simply as barones. That word is not found in the singular, nor is the collective noun baronagium or barnagium used as yet. Such barones were simply a number of persons who happened to be pares, because they held of the same lord and of the same fief, convassalli, and, at the same time, any one of them might hold other lands in other fiefs or of other lords and thus be a member of other courts and the “peer” of other bodies of men.
So long as these centrifugal tendencies remained unchecked, the conception of corporateness among the English tenants-in-chief was difficult to realise, and history shews little collective action of a permanent kind. The feudal diffidatio by which a vassal repudiated his lord was an individual thing, as were the original homage and fealty which it renounced. In certain senses feudalism in its unchanged form was extremely individualistic.
In England it was not till the thirteenth century that the barons began to act as a collective unit, but as early as the reign of John they are found doing so. It is in that reign that we find the first royal recognition of the baronial right collectively to coerce the king by force, in the final sections of Magna Carta. From that reign, too, comes the first known instance of a “parliamentary grant” to the king by the barons, acting in their collective capacity, and it is but a few years afterward, as Matthew Paris tells us, that totius Angliae nobilitas, when importuned by the king for money, took an oath each to the other that they would give the king no answer except a communis responsio1, an early instance of “collective bargaining.”
An indication of the absence of any idea of a definite corporate character in the baronage may possibly be seen in section 14 of Magna Carta, in which it is promised that an assessment of a scutage or extraordinary aid shall bind all tenants-in-chief who have been summoned, even if all these have not appeared, provided it is agreed to by those who are present. The tacit exception here made of those who had not been summoned seems to indicate that assent is still several rather than joint, though it is given when all are assembled together instead of separately. Probably one not summoned was not bound by their action. This provision as to summons had not been demanded by the barons in their Articles; and it, together with the whole of the provisions of 1215 concerning aids, was entirely omitted from all later reissues of the Charter, while scutage was by the terms of the second reissue of 1217 to be thereafter imposed as was the custom in the time of Henry II.
Professor Powicke has shown how John’s loss of Normandy had resulted in the surrender of their Norman lands by the barons of England, who were thus for the first time left “free to devote themselves to English affairs.” There can be no doubt that this was a great impetus to the growth among the English barons, not only of a feeling of nationality, but of their corporate character as a real baronage or estate of the realm of England. John was one of the first kings regularly to style himself Rex Angliae instead of Rex Anglorum, in a few years we find the contemporary chronicler speaking of his barons also as nobilitas Angliae.
It is a commonplace that the units of political or legal thought in the later Middle Ages are groups rather than individuals. When the barons then began in practice to have common interests, aims, and actions, it was natural that they should be regarded, first rather loosely, later much more definitely, as a universitas or commune; and as such we may consider them as the first of the communes which in time combined to form the English Parliament.
Up to 1254 the commune of these barons or royal tenants-in-chief constituted the only element in the national assembly, and up to the end of the first quarter of the fourteenth century the only invariable and essential element. The basis of the membership was military tenure tempered by royal summons. The greater barons were entitled to a special summons, the lesser ones, whom Round has shewn not to be the same as mere knights, must attend if merely summoned generally by the sheriff’. Thus they assisted in the general business of the Curia, which was at once consultative, administrative, and judicial; and it included the promulgation of administrative assizes as well as the issuing of original writs in judicial matters—until the increasingly onerous and technical burden of the last of these was gradually delegated to the chancellor alone—and the trial of such cases as found their way, on account of difficulty or importance, to the whole Council for determination. On feudal principles, these members collectively also gave judgment in cases involving any of their own number, and each of them was entitled to such a indicium parium suorum in his own case. The growing definition of the feudal incidents in feudal custom had made certain of these incidents a matter of course which the lord might levy without consent when occasion arose, but in all other or extraordinary cases no assessment of aids could be made under feudal custom without the assent of the body of tenants upon whom it would directly fall. This was as true of the tenants-in-chief of the English king as it was of the vassals of any lord, and it was the meetings of these tenants in the royal Curia and their consent to such aids, beginning on a national scale apparently in 1207 in England, that must be considered the source of the later parliamentary grants which played so large a part in the development of English constitutionalism. The barons in 1215 formally demanded that all such extraordinary aids as well as scutages should be imposed only “per commune consilium regni”—with the common assent of the realm—and in conceding this demand the king promised in addition that all the tenants-in-chief should be summoned to a meeting for the purpose, and that those there present should be able to decide the matter even in the absence of the rest who had not obeyed the summons. These provisions, their wording, and other documents of this period, warrant us in assuming that the barons are by this time in a sense acting as an estate of the realm and that their assent alone is referred to as the assent of the realm; and elsewhere in documents and chronicles of this time they are frequently spoken of and speak of themselves and themselves alone as the populus. This is the more significant when we remember that by this time the role of the Roman populus as the ultimate source of the authority of Roman law was known in England through the law books of Justinian, as is shewn clearly by statements made in the preface of Glanville’s treatise on the laws of England, written before the end of the twelfth century, and repeated by Bracton. The meaning of populus was understood and the baronage was as yet the whole populus, it was the only estate of the realm; its consent alone was the commune consilium regni. It was, however, an estate in which there existed no representation in any definite constitutional sense.
To such a meeting “for obtaining the common assent of the realm” all the individuals to whom that assent directly applied were summoned; all barons upon whom the burden of the aids or scutage there assessed directly fell were actually present or had an opportunity to be present. The body thus represented no one. Their decision was their own, it directly affected none but themselves, and they alone were considered competent to make it.
It may even be assumed that a baron, had he been omitted from the summons, would not have been bound by their action; and we have some additional evidence that this was the rule. But this is only the formal or legal aspect of the matter. Though a baron who had failed to receive a summons was probably not bound by the action of the rest, one who had received a summons and ignored it certainly was, and this in itself is a striking evidence of the growing idea of corporateness. Furthermore, though these barons alone were the whole populus whose assent would be enough to conclude all others, at least for assessments whose original incidence fell upon them alone, there was a vague sense in which even in these matters they did act for the classes below them upon whom they were constantly shifting the actual burden of these exactions.
An illustration of this is found on the Close Rolls of Henry III in 1237, in which the fact is recited that a colloquium had met at Westminster composed of “the archbishops, bishops, abbots, priors, earls, and barons of our whole realm,” and apparently none beyond these; yet there follows immediately the statement that “the same archbishops, bishops, abbots, priors, and ecclesiastics holding lands which do not belong to their churches, earls, barons, knights, and free men, for themselves and their villani” had granted to the king in aid a thirtieth of their movables.
And a time was to come, and that before long, after the milites or “country gentry” had gradually grown to sufficient importance, strength, and political self-consciousness, when the uneasiness aroused by these conditions would force the barons to begin to doubt their own unaided ability, if not their right, to consent to burdens whose chief weight must fall in the last instance upon estates lower in the feudal hierarchy, and even to suggest to the king that the estate of the knights should be consulted as well as their own in the imposition of such burdens.
An interesting example of such doubts on the part of the magnates occurs in 1290 in the case of an aid for the marriage of the king’s daughter. The lords did, it is true, profess to make the grant “for themselves and for the community of the whole realm,” but their growing doubts of their own unaided ability to do so appear in the phrase immediately following: “quantum in ipsis est.” As a result of these doubts the king summoned representative knights of the shire to consult on this matter, and in the writs he distinctly says that he is issuing them at the special request of the magnates.
In like manner the “lords spiritual” were becoming less certain of their ability by their assent alone to bind all the clergy. Thus the assembly of the clergy which met at the king’s command at Northampton in 1282 to make a grant to the king, though it contained proctors from the cathedral chapters, alleged, as a cause of its failure to make any grant, the lack of consent by the parochial clergy. As a result, in 1283 the writs to the archbishop to a second meeting remedied this defect by directing that proctors of the parochial clergy should be summoned, and the reason given was that at the previous convocation, “partly through the absence of the greater part of the clergy who according to the usual practice at that time prevailing had not been summoned, partly for other reasons, ad plenum non potuit responderi.”
Thus it is evident that the monopoly of the barones, both ecclesiastical and lay, as the sole element in the populus, was gradually wearing away, and that strong tendencies were at work which were widening the basis of the State and rapidly creating the necessity for the emergence of additional “estates” as sharers at least in the burdens imposed by the increasing demands of the king. Later, a sharing of burdens must of necessity lead to a sharing in other things as well.
Thus new elements were in time added to the older Curia, but the Curia itself remained through all the changes. This has been well expressed by M. Pasquet when he says, speaking of the House of Commons: “That convocation is in short merely the extension to some of the new classes of society—the bourgeoisie of the towns and the class of free tenants of the country—of ‘the service of the court’ which had hitherto been demanded by the king only from his barons. The delegates of the communautés then came to take their place in an organisation already in existence; for an understanding of the real significance of the innovations which were made in the reign of Henry III and of Edward I, it is necessary to recall the essential features of that organisation.”
The real motives behind these “innovations” of Henry III and more especially of Edward I, and their immediate causes, have been the occasion of considerable discussion in recent years. The traditional view, still generally held, and admirably set forth in detail by Bishop Stubbs, attributes these new developments almost solely to the increasing demands of the king for money, and the participation of these additional “estates” in the parliamentary grants which resulted. In recent years, several other alternative explanations have been offered. In 1888 Ludwig Riess, the author of the history of English parliamentary elections in the Middle Ages, contended that the chief purpose of Edward I was not so much this, as the better control and oversight of the county administration in the hands of the sheriffs, and the centralisation of a system employing the aid of the knights of the shire in local administration including the local assessment and collection of aids. M. Pasquet, while admitting the existence of all these causes, would find the principal motive of Edward I in calling new estates to his councils in his determination not only to be the suzerain of his vassals, but the king of all his subjects; and he connects the king’s summoning of these new elements with his inquests quo warranto and the statute of Quia Emptores, as all parts of a general design of destroying the distinction existing in feudal custom between his tenants-in-chief and the mesne lords or arrière-vassaux. Professor Pollard sees in the fact that in so many of Edward’s parliaments no financial supply was granted or asked for, a proof that it was its judicial and not its financial activity that must furnish the explanation at least of the frequency of its meetings, and he believes this frequency to be due less to the king than to his subjects.
A famous case of such a demand by the barons for reasons largely judicial occurs in the twenty-ninth ordinance of the “Lords’ Ordinances” in 1311, where a parliament is required once a year or oftener, and the reason given is that defendants had alleged that they were bound to reply only coram Rege, and that the king’s ministers had been guilty of acts of oppression against law, for which there was no redress without a parliament. It was therefore ordained that a parliament should meet at least once a year where these delayed cases might be terminated, as well as those in which the justices were of conflicting opinions, and final action taken on bills brought into parliament according to law and reason. But these circumstances were to say the least exceptional, if not to be termed revolutionary.
Without doubt there is much to be said for each of these factors, and this modern discussion has considerably widened and deepened our understanding of the development of parliament. If we confine ourselves to the beginnings of these innovations, while Henry III was still alive, the contemporary evidence is strongly in favour of Bishop Stubbs’ view that the original motive behind the beginning of these changes was almost entirely fiscal. But the reigns of Edward I and Edward II are a period of almost bewildering development, and new forces, unknown or latent before, then began to operate. Certainly before 1327, the representative knights who had originally come to parliament only to grant, were remaining to do much more, and a part of this transformation must be placed in Edward I’s reign if not attributed to his initiative. The Rolls of Parliament, which have by this time begun, prove the activity of the representative estates in framing petitions, and in 1322 the well-known statute of York provides that enactments touching the estate of the whole realm must have their participation. In 1290, when the statute of Quia Emptores was enacted, this had probably not been so, and this rapid change may have been owing in part at least to Edward’s policy of advancing the arrière-vassaux, or his attempts to consolidate the local administration with the central. It seems probable that most of these great changes were in the beginning at least the result of the king’s initiative—occasionally but only in exceptional circumstances the barons’—rather than of the desires of the new classes represented; but, even admitting this, the effect of the changes upon those classes is not far different from what it would have been had they originated with themselves. These classes do now in time gradually grow to be an integral part of parliament, the parliament to which Fleta referred when he said, “The king has his court in his council in his parliaments.” And they are becoming something more than a mere addendum to the Curia as they seemed to be at first, summoned only to participate in an aid demanded by the king and then summarily sent home; they are now remaining to do many important things beyond the granting of supply, though they continue to be in many things subordinate to the lords. Edward I’s famous dictum of 1295, “quod omnes tangit ab omnibus approbetur,” applied to them, and it cannot be wholly waved aside as the unimportant verbiage of some minor official, as is sometimes done; but it originally included only grants and nothing more. By 1322, however, it had come in effect to include enactment as well as grant, and possibly in practice much besides. Whatever then may have been the true proximate cause or causes of the beginning of this important development, its remoter causes lie far back in the earlier history, and the main features of the system of representation thus established are fairly clear.
In the first recorded instance of a summons of knights to a parliament, in 1254, election in the county court is clearly referred to, as well as precise instructions, and the clear principle that these representatives both act for and can bind the whole body of the county; and it may safely be inferred that these ideas and practices were already thoroughly familiar through long usage in local matters in these courts. For certain specific things election was employed at least as early as 1215. Chapter 18 of John’s charter had prescribed the assistance of four knights elected per comitatum in the assizes of novel disseisin and more d’ancestor, and chapter 48 had provided even more definitely that the twelve knights who were to investigate the wrongdoing of the king’s foresters “ought to be elected by the good men” in the county court. It is true, as M. Pasquet has pointed out, that the expedients of 1254 in one respect fall far short of our modern complete idea of representation. The representatives are not empowered by their constituents to represent them for a long period, and have no authority to bind them in any matter that may happen in future to come before them; they are definitely restricted to the matter of which the county court has received notice in the king’s writ. As representatives, in their consent in parliament they are confined ad hoc. This, however, does not mean that they have no discretion, for they have power ad tractandum. The limits of their discretion are probably fixed in their instructions, and on this they are to have power to answer praecise, but within these limits they are left free. This is, as M. Pasquet says, a system of procuration rather than one truly and entirely representative in our modern sense, but many of the essentials of modern representation are there, and of the others a beginning may be seen. The representatives bind their constituents, they have a “mandate,” they have some discretionary power, and before long they acquire a greater permanence. Medieval English parliaments never lasted longer than a few weeks at the most, but we may easily see slight but more and more definite indications of the growth of a more general delegation of power, and for a longer time, in the writs of summons that we find from time to time in the later years of the thirteenth century; and in the next century these delegations of power become more extensive still, though it was hardly before the Tudor period, with its parliaments occasionally lasting several years and divided into several sessions, that the full modern idea can be said to have become completely established.
Space will not permit of a detailed examination of the growth of the different estates of the knights, burgesses, cathedral and parochial clergy. When summoned to parliament, the knights of one county in one writ of summons are directed to treat with the representatives of the other counties upon the matters on which the magnates shall have agreed. The matter thus agreed upon was of course a grant, and the writ implies that all the knights were to deliberate together upon it, and do so separately from the magnates, and there is other full evidence that this was the practice. When burgesses were summoned, they too deliberated together, but apart from the other estates, and the same was true of the “communes” of the cathedral and the parish clergy, whether these were present in person or by proctors, in the few cases of their presence in English parliaments of the late thirteenth century.
Thus the new representative element in the parliaments of that period really consisted of several collective units or universitates, each consisting of representatives who acted for the class as a whole from which it was drawn, and no more. They were summoned ad tractandum, but the “treating” was only in common with their fellow-representatives from the same estate. Hence the answers of these several estates to the king’s request for supply might be and usually were different. In the same parliament the knights collectively might agree to grant a tenth, while the parochial clergy might promise only a thirteenth, and so on. The lower clergy in a few years disappeared as an estate in parliament but continued till the seventeenth century to make grants in their convocations, a remarkable proof of the separation of clergy and laity in the later Middle Ages, since a similar tendency on the part of the merchants was successfully and permanently checked by the House of Commons about the middle of the fourteenth century. Thus the parliament in its deliberations upon the king’s requests was really not one body, and in the early period not two bodies, but often three, four, or even five, according as knights, burgesses, cathedral and parochial clergy were present or not. Ad tractandum it was strictly a combination of several separate communes or estates, deliberating apart from each other and often returning different answers to the king’s demands, and estates whose number actually varied widely from year to year. Before the reign of Edward III it would be more accurate to call the representative portion of the parliament a house of communes than a house of commons.
But there is another side to all this. As M. Pasquet says, the representatives are the delegates of separate communes, “but they come to take their place in an organisation already in existence.” They did not take this place at once. In the reign of Henry III, or even the early years of Edward I, when they participated in grants and nothing more, it is questionable whether they could properly be considered a part of that organisation; a few years later there can be no question. True, the various communes continue to deliberate apart, and for deliberation parliament remains a body of several almost distinct parts. But by the end of Edward’s reign these communes have taken their place as parts of one parliament. Organically it is one and they have become members of it. At the solemn opening of parliament, when the king’s demands are made known in the pronunciatio, the representatives are present with the lords in the same chamber to hear it. This was probably not the case so late as 1290; it becomes invariable in the fourteenth century. It is only for deliberation that parliament is now separated. For its formal acts it is one. Thus the estates continue, but they have become merged in one official body. In 1297 Edward I had recognised that new customs duties might be levied only with the assent of all the realm, and that in parliament, for this touched all. In 1322 it was established that common law as well as common grants needed the assent of “all,” and a statute which enacted a common law required the assent of “all,” including the representatives as well as the lords. By 1348 the Commons were able to assert their control even over grants that appeared to touch not all but particular classes only, and Edward III was compelled to desist from his attempts to treat for a grant with assemblies composed of the merchants.
The communes and the Commons
In the meantime, Convocation had gone its separate way, and the communes of the knights and the burgesses were gradually coalescing into a true “House of Commons,” a process that was almost complete by the middle of the fourteenth century. By 1365 a chief justice of England could say, “Everyone is considered to know what is done in parliament: for so soon as parliament has concluded anything, the law presumes that everybody has notice of it; for the parliament represents the body of all the realm.” The feudal estates have become the “body of all the realm.” Edward I’s design of being king rather than mere lord has largely been fulfilled. Modern political ideas are supplanting the medieval ones, and a national “House of Commons” is rapidly replacing the medieval house of communes.
The above sketch of the development of the English communes is brief and inadequate, but it was necessary to choose the growth of a single system as an illustration, in order to bring out the fact that these institutions everywhere were really the result of a gradual development, not of a sudden creation; and the English system is best adapted to that purpose on account of the greater richness of English records, especially of a local character, in the earlier period.
But developments somewhat like this were by no means confined to England. Almost everywhere in Western Europe, out of much the same original materials and ideas and under the stimulus of circumstances generally similar though often specifically different, a development not unlike this had taken place; and by the end of the thirteenth century we find all over the Continent conditions and ideas sometimes less developed than those of England, sometimes in some respects apparently even more developed. These ideas and institutions are neither of sudden occurrence nor the product of imitation to any great degree. They are everywhere the result of a slow growth which no doubt might be followed step by step elsewhere as we have tried briefly to follow it in England, if other countries were as fortunate as England in the preservation of the contemporary records of their earlier history. The universality of these institutions is the sufficient answer to any theory of their exclusively “Anglo-Saxon” origin and character. They are owing neither to English blood nor to English political genius, but rather to the common stock of institutions with which most of the Western nations started, and the operation of definite historic events upon the development of these, which was in its larger aspects much the same everywhere. The unique character of English constitutional development began far back in English history, but its most striking manifestations, as far as they are exclusively English, lie on this side of the thirteenth century rather than on the other, and even they must be attributed to definite historic conditions and events which demand only detailed knowledge to explain them; they are not the result of some mysterious quality in the blood of England. At the most, the factors are cultural rather than racial, but historical rather than either.
By the latter part of the thirteenth century, a development analogous to England’s had produced institutions and ideas not fundamentally different from hers in almost all parts of Christendom. From Scandinavia to the Adriatic they are found, and in the east of Europe as well as the west; in Hungary, Poland, and Bohemia, no less than in Italy, Spain, and the Low Countries. Those of Eastern Europe treated in other chapters in this work are not included in this sketch, but even in the West alone their wide distribution is sufficiently remarkable.
In France, the historic connexion of these remarkable constitutional developments with the earlier institutions of the Frankish monarchy is fairly clear. The tradition of the old Frankish regime, its royal power, its enactments, and its assemblies had remained; but in the tenth and eleventh centuries the powerlessness of the kings and the parcelling out of royal authority among great lords, whose dependence was little more than nominal, had gone so far as to make this scarcely more than a memory. With Louis VI, as Luchaire points out, this striking contradiction between the king’s great claims and his actual feebleness began to grow less, and a new tradition was founded which was ultimately gradually to grow into the absolutism of Louis XIV. In France, however, conditions were at first less favourable for its rapid development than in England. The twelfth century was in reality the critical period for both countries, and England was then able to lay the foundations of later constitutionalism in her national system of administration, while in France similar conditions were hardly approximated before the reign of Philip the Fair. These things gave to England and Normandy an administrative development in advance of France by more than a century, and that difference in time determined the difference between England’s subsequent constitutionalism and the absolutism of France. Otherwise, conditions were roughly much the same on both sides of the Channel. As in England, though more rarely than in England, the French king from time to time assembled in his Curia varying numbers of the great feudatories owing him suit, and by the reign of Louis VII their activity often resulted in administrative enactments or établissements of considerable importance. Such enactments, except in the crises of war or invasion, Beaumanoir says, must, however, be for sufficient cause, for the common profit, not against God and good customs; and they must be made par grant conseil.
It was to the appearance of a great national emergency, together with the continuance of these earlier institutions and practices, that we must attribute the unusual developments in France in the time of Philip the Fair, which resulted in the first assembling of the feudal estates on a national scale; and the inclusion in these assemblies of the bourgeoisie was, in the first instance at least, due to the enfranchisement of so many of the communes during the thirteenth century, which thus brought them within the feudal hierarchy and imposed upon them the burden of the suit generally incident to feudal tenure whenever it was demanded of them by their feudal overlord, together with the other customary obligations of auxilium and military service. In common with the other vassals of the king they owed him counsel and they owed him aid, and these, or the second of them at least, had been demanded and received by the kings of the thirteenth century from their villes, in assemblies of which the great lords had formed no part. The rapid differentiation in the central administration of the latter part of the thirteenth century is no doubt an important cause of this separate action. The judicial function of the old Curia had already passed in large part to the Parlement, while consilium had become one of the chief functions of the king’s private council, though this was, as Viollet says, a matter of fact rather than of legal definition. When the communes were summoned, it was usually auxilium and that alone that was wanted, and before the opening of the fourteenth century, in all cases where it was demanded from them collectively, it was in assemblies to which no other feudatories were summoned. No doubt the reason why they had been summoned at all was the force of the feudal principle that all specific aids beyond the few accustomed ones could be assessed only with the consent of the vassals upon whom they fell. Instances of these separate assemblies of representatives of the villes are to be found a good while before the opening of the fourteenth century, and separate they might have remained much longer but for the great national questions brought up by the conflict between Pope Boniface VIII and Philip the Fair. For such a national emergency the old feudal revenues were inadequate. Feudalism was dying and its revenues drying up none the less surely, even if more gradually, than in England, and, as in England, the national power was rising and with it a national activity that required for its support a larger revenue than could be drawn from sources strictly feudal in character. The king was driven to treat on extra-feudal terms with his vassals, the barons and the enfranchised villes. Thus the estates are feudal, but they are extra-feudal also. Philip probably called to him in 1302 none who did not owe him feudal suit, but he did it in a way unprecedented in feudal custom. The departure from precedent might seem less striking in the occasional assemblées de notables to which none but great nobles lay or spiritual were summoned, but the greater assemblies of Philip the Fair were certainly an innovation, though their feudal basis is evident; and later meetings mark a far more radical departure from feudal institutions and ideas.
Early French representation
The first instance seems to have been in the year 1301 at an assembly held by Philip at Senlis, in which was demanded the counsel “clericorum et laicorum, doctorum et aliorum proborum virorum”, on the difficult question raised by the king proceeding against the Bishop of Pamiers for breach of faith and lèse-majesté.
But other differences arose between the Pope and the French King which finally became so serious that on 10 April 1302 Philip called a great meeting of the Estates at Paris. This assembly is usually regarded as the beginning of the States General, and the documents edited by the late M. Georges Picot enable us to draw with some confidence certain conclusions as to the character, powers, and activities of its members. The assembly was composed of tenants-in-chief of the king, lay and spiritual, as had long been the custom; and it also included arrière-vassaux, “representatives” of enfranchised villes. All these arrière-vassaux were bound in a general way by the fealty they owed their liege lord, but direct negotiations with them were an addition to feudal custom which could be made regular only by the assent of their overlords who held of the king in capite. In England, an aid had already been asked of the mesne lords, as we have seen, but “at the instance” of their feudal superiors. This was now done for France by Philip in 1302, and it illustrates the gradually widening basis of the State on both sides of the Channel, a process observable earlier in England than in France. In both, fealty is gradually becoming wider, more national, and less feudal, as wealth, power, and political self-consciousness diffuse themselves beyond the circle of the greater land-holders. But the development is a gradual one which proceeds without any distinct break with feudal custom. The mesne lords—a term including communes outside the royal demesne—are now summoned, but it is on account of an obligation which may be called as much feudal as national, and the innovation of summoning the is softened by obtaining the assent of the direct vassals who had hitherto concluded their tenants by their own unassisted decisions. This assent was forthcoming no doubt because the participation which was now first extended beyond the immediate circle of the king’s tenants-in-chief was not a privilege to be guarded, but rather a burden which might be borne more easily when more widely shared.
Changing economic and social conditions were making increasingly difficult the older shifting of the incidence of the burden of auxilia sanctioned by regular feudal custom. The consent of the tenants-in-chief was necessary if such a change was to be made, but it was a consent probably not hard to obtain in view of the crisis which faced the nation in 1302. Thus it is clear that the basis of the membership of the first Estates was obligation and not right, an obligation arising out of fealty; while the growing forces of nationalism were now imposing upon it the necessity of direct negotiations between the king and his arrière-vassaux, hitherto unnecessary but now accepted by the chief tenants in the prospect of unusually heavy demands for aid in the impending struggle with the Pope, and accepted the more willingly no doubt because of their decreasing confidence in their ability longer to shift these burdens from their own shoulders to those of their tenants. That the real basis of the summons was obligation rather than right is made plain by the surviving summonses to the Estates themselves. In the very first of these, addressed by the king to the seneschal of Beaucaire on 15 February 1302, the purpose of the meeting is set forth in language which echoes the famous phrase of Edward I of England seven years before—“quod omnes tangit ab omnibus approbetur”. Since on “many difficult matters” which touch in no small degree the status and liberty of himself and his realm no less than of the churches, ecclesiastics, nobles, secular persons, and all and singular the inhabitants of the said realm, the king wishes to “treat and deliberate” with his prelates, barons, and others the subjects and lieges of him and of the said realm, he commands to be summoned under their obligation of fealty and any other obligation whatsoever by which they are bound to him to appear at Paris on 8 April then next ensuing, the “consules et universitates civitatum et villarum praedictarum” (in this case seven villes) through two or three “de maioribus et pericioribus singularum universitatum predictarum” who are to have full power from the aforesaid consuls and communes among other things “to hear, receive, and carry out, and to consent to everything ordained by the king in this regard without the excuse of a referendum,” their presence being for the purpose “of treating and deliberating upon these matters, of hearing, receiving, and carrying out” all of them, and of giving their assent “in the name of the consuls and communes aforesaid” to all those things ordained by the king in the premises or connected therewith. The document here summarised clearly indicates that this summons grew out of the obligations incident to fealty. There appear also the instructions to “representatives” such as are to be found a generation earlier in England, but there is no definite reference to any election.
But an important question arises at the outset in regard to those things which touch the status and liberty of all the inhabitants of the realm. Must all actually approve of what touches all? Whom must the king include when he asks assent in matters thus touching all? How far beyond the prelates and barons does the obligation of fealty extend; or the additional phrase quocumque vinculo? How much of this “representation” is only “virtual”? Shall we translate the important words “aliis nostris et eiusdem regni fidelibus et subjectis” with M. Picot, as “les autres sujets du royaume,” or with the late Professor Esinein, as “d’autres fidèles sujets du royaume”, thus including among the “others” none beyond the inhabitants of enfranchised villes? How far is this important experiment of Philip “national” and novel, how far is it merely feudal and traditional? It is a difficult question. There can be no doubt that there was a great development of these matters between 1300 and the great meeting of the Estates in 1484 for which Masselin’s journal gives us such detailed information, but on the whole, though the paucity of documents for the first meeting makes certain conclusions impossible in regard to it, if we may judge from the history of earlier assemblies in France and elsewhere, the more conservative interpretation of Esmein seems to offer an explanation of these important transactions more in accordance with the facts and the political habits and ideas of the time than the “consequences exagerées” of M. Picot. It is important, however, to bear in mind that this applies wholly only to the earliest meetings of the Estates.
Several times in 1303, at Paris, Montpellier, Nimes and Carcassonne, and again in 1308 in the struggle with the Templars, the Estates were called together; and many of the documents have survived from which some conclusions may be drawn as to the general character of the assemblies in the early fourteenth century. They met again in 1314, in 1356, when there were two assemblies, one for the South at Toulouse and one for the North at Paris; in 1413, and in 1484, and several times between; often in times of national defeat and civil disorder which make their actions seem more revolutionary than constitutional. The last meeting before the fateful one of 1789 was in 1614.
In the beginning the prelates and barons were required to appear in person, and such of the members of these assemblies as were ordered to come and gave their assent only nomine consulum et universitatum doubtless lacked many of the powers characteristic of the more fully developed representatives of modern times. The attendance of both classes was sub debito fidelitatis and under threat of punishment for failure. But even the prelates and barons owing personal attendance might find it impossible to answer the summons in person, and in such cases they might appear by attorney, as was possible in all the royal courts at this time in both England and France, provided the royal licence could be had. The reasons given for these procurations or letters of attorney issued by the clergy for the meeting in Paris in 1303—here suspiciously numerous—which M. Picot has printed, shew conclusively that this appearance by attorney was at the time of that meeting regarded as an exception to be admitted only when sufficient cause was shewn. So one abbot prays this privilege “propter infirmitatem”, the Prior of Saint-Leon of Sens is prevented from coming “gravi proprii corporis infirmitate”. “We have started on our journey,” says another, “though very weak, but are not strong enough to appear in person, as God is our witness, without grave danger to our health.” Another is so poor and so burdened with his duties at home that he begs to be excused. Another has got as far as Troyes but the journey is too much for a man of almost eighty, wherefore he begs “vestre regie maiestati quatenus super hoc pro excusato dignemini me habere.” Another is so ill that he is not able to ride. The Abbot of Chantoin cannot come because his monastery is so poor that he must come afoot, which he could not do without grave danger to his health. Another has broken his leg, “as is well known in the whole neighbourhood”. Another is deaf. In these exceptional cases, the attorney was usually given power first of all to present the excuses of his principal, which were probably not always acceptable—“full power to excuse our absence from your presence for the reasons aforesaid, and to take oath on the excuse given”, as in one instance. This was accompanied by a grant of authority to the attorney to conclude his principal as fully as though he himself were present in person, sometimes in all the king’s demands, but quite as often with important reservations; “salva fide”, in the case of the Abbot of Longuay, and in another instance only so far as the acts agreed to should be done “de iure”, and even then with the proviso that they must be referred to the principal for ratification. One letter limits the attorney’s consent to those things alone to which the majority of the prelates shall have agreed. Sometimes the attorneys are empowered to consent, “if necessary”, or “to consent” and if necessary “to affix their seals.” Others are only to give assent subject to ratification by the superior of the Order to which the monastery belongs. In one case power is given merely to excuse and to take oath that the excuse is genuine, but no power whatever to act. The Bishop of Rodez expressly delegates authority to join in all acts against Boniface, “quondam papam octavum,” while the Abbot of Villemagne and the Prior of Sainte-Énimie are careful to except always the status, honour, and revenue of the Holy See. The persons designated in these letters of procuration are usually referred to as “procurator ac nuncius specialis”, “exhibitor presencium nostrum”, “latores presencium”, “excusator specialis”; and in some cases several are appointed, in others a single individual. When several are chosen, usually any one of them may act for the whole. Most of the appointments of these proctors were made directly by abbots or priors, but in one case it was by a chapter, in another by the dean and chapter, and in another, where the abbot of the monastery was absent, it was authorised by the prior and monks.
In July 1303 an assembly was held at Montpellier which marks some notable developments in representation beyond those of a few months before. The summons addressed to the viguier of Beziers prescribes the attendance of all prelates and barons of the district, together with chapter’s, collegia, the conventus as well as the priors of important collegiate and conventual as well as cathedral churches, together with “syndicos et universitates civitatum et castrorum aliarumque villarum insignium”. Of these the prelates, barons, priors, and consults must appear in person, the rest by suitable proctors with adequate power and instructions. The notices of the choice of proctors in the cities, chateaux, and villes are particularly interesting. In one, the Chateau d’Aimargues near Nimes, the universitas of the men of the Chateau were summoned by the trumpet and the public crier, and they or a majority of them “as appears and is declared,” “nobles as well as non-noble,” “representing that universitas,” proceeded to elect (fecerunt, constituerunt, et elegerunt) four men, two noble, two non-noble, to act “on behalf of the universitas and everyone of the said universitas,” its authority inhering in all or each of the proctors in such way that anything begun by one or more of them might lawfully be carried on and determined by the others, one or more; an authority, too, which extended far beyond the narrow mandates earlier in the year, to include generaliter everything the universitas could do, say, treat of, and accomplish, if all its members were present in person. Even where the election was the act of the consoles alone, as in the Château de Capdenac, the representative was sometimes “general” as well as special, and was empowered to do not only the things specified but “all others.” The procuratores are in one mandate designated as “our certain general and special proctors”, in others authority to prosecute and defend legal actions against the commune is specifically mentioned. At Lunel “the people of the university of the men” of the ville, three hundred and thirty-six in number, were called together by crier and trumpet in the churchyard where it was the custom of the people to assemble, and there, “all and singular and each of them” appointed four proctors, with “full, general, and liberal power” to act, two of them noble, one a lawyer, and one a draper of Lunel. Later in the day fifty-three more of the inhabitants ratified the action already taken.
At Viviers “those men of the universitas who were present declaring that they constituted two parts and more of the men of that universitas, as seemed very probable”, proceeded in the name of the whole universitas to elect their two representatives and to promise ratification of their acts. At Lodève the assembled inhabitants, five hundred and forty-four in number, whose names are all set down, after hearing the letters of convocation translated for them, “as a universitas and in the name of the universitas of Lodève,” unanimously chose three syndics to represent them. Occasionally procuratores were empowered to substitute others for themselves, and there is at least one case in which this was actually done. In 1308, for the assembly at Tours, two proctors were to be chosen at Beaucaire, one “pro parte nobilium,” the other “pro parte popularium personarum,” and the election of the latter occurred in an assembly of the “burgenses et homines populares,” who chose a doctor of laws as the representative “pro popularibus personis et nomine universitatis earum.”
Such specific instances as these indicate far more clearly than any amount of detailed comment the nature and the extent of representative institutions and ideas in France at the opening of the fourteenth century. Several points seem clear. The attendance is not a right but a duty, and a duty imposed primarily by the obligation of fealty. Those summoned to appear in person must do so, at the beginning of the century at least, unless they have an excuse, of whose sufficiency the king will judge. With the king’s permission they may in such cases appear by an attorney. This Esmein considers exceptional and existing only in 1302. Normally, he says, they might appear by proctor if they chose. This was certainly not the case, however, at the first meeting in 1303, but obviously soon became the general practice. Such proctors when appointed were attorneys or mandatarii, and usually little more. They represented in most cases no one but their principal. They were his personal agents and bound none beyond him by their acts. “Each appeared in virtue of an obligation that was personal.” Collective bodies such as villes or chapters of necessity had to appear by a proctor or proctors, who were likewise regarded oftentimes as little more than mandatarii, as is indicated among other things by their being occasionally allowed to appoint substitutes, a power hardly consistent with the existence of the discretionary power necessarily incident to representation in any developed sense. But many cases go far beyond this. There were other proctors who were general as well as special, empowered in advance legally to bind their principals in any way whatsoever, and there were cases where several prelates or barons agreed to employ the same proctor in common, and one instance at least where several bishops of a single province are authorised to choose one of their own number “to act as representative in place of all and to have the full power of all.” In the villes the developments are particularly interesting. For purposes of representation they are conceived in the usual manner of the time as collective wholes, universitates or communes, and the proctors they chose represent the universitas. Apparently the franchise is wide, and the decision is sometimes made by the vote of a majority. This body of the ville usually includes nobles and non-nobles, but in one case in 1308 there are two communes in a single ville, the nobles and the populares personae, the second of which separately chose a proctor for their own universitas. Seemingly none but the inhabitants of the towns are represented in these assemblies of 1303 and 1308. The inhabitants of the open country are not mentioned till long afterward.
In fact, the most striking difference between France and England in the local representation at this time and before undoubtedly lies in the continuance of the old county court in England and the absence of anything comparable to it in France. Thanks to the circumstances of the Conquest, the vigour of William I and Henry I, and the obvious advantage to them in continuing the older system of the hundred and the shire, it became the settled policy of the Norman Kings of England to retain them. Thus in England the sheriff, the king’s chief local officer, remained a part of the court over which he presided. He remained the shire-reeve to the end, and though he was the king’s praepositus, his authority increasing in proportion to the increasing growth of royal power itself, yet he never became detached from his county or its court or independent of it. Its authority as a whole did not decline as his advanced, though his authority was partly gained at the expense of the old suitors of the court itself. And when in turn the sheriff’s authority gave way to that of the justices itinerant, the vigorous communal life of the shire was not affected. The justices were strong, but they were active in and through the machinery of the county court. In France, on the contrary, the praepositus, in developing into the prévôt as royal power increased, tended to lose touch with the community and become more a royal minister than a local officer, and the later baillis were even more markedly so. Neither the prévôté nor the bailliage ever came to be the full equivalent of the English county. The difference is profound, and it had results no less decisive on the development of the rural representative institutions in the two countries. In the early fourteenth century the only local representation in France is in the universitates of the villes. In England at the same time, and probably until the passage of the forty-shilling freehold act, the participation in elections of representatives extended to all the members of the county court, including much of the agricultural population of the open country, as seems the better opinion, supported by Homersham Cox, Riess, and Stubbs.
For the towns, on the other hand, though there is a vast practical difference between the frequent meetings of an English Parliament and the rare and exceptional assemblies of the French Estates, the theory and practice of representation in France certainly seems no less advanced than in England in the early fourteenth century; and in the period following, at times of great political excitement, it occasionally advanced far beyond the earlier precedents. In fact there were several significant changes whose results were of the greatest importance.
Gradually the nobles and the prelates ceased to attend the meetings of the Estates in person or to be required to do so. It became their practice, contrary to that of England, to appear only by deputy; and a further step of the greatest importance followed when the prelates and the nobility of a general district began regularly to elect a small number of proctors to represent them all. Equally important was the extension of the franchise to the people of the whole bailliage including the open country as well as the villes, as is found in 1484 at the meeting of the Estates at Tours. This was no doubt exceptional, but it seems to indicate the existence, temporarily at least, of conditions in some respects not greatly different from those in the English shire. Unlike England, however, the representatives of each order in the French districts were chosen, not by all the electors together as in the county court but separately, each of the orders, clergy, nobility, and “third estate” choosing deputies to represent none but their own order in the bailliage at the general meeting of the Estates. In 1484, in the case of the third estate, the suffrage for these elections seems to have been almost universal; but, taking the later Middle Ages in general, the basis remained on the whole municipal rather than general, though at times of crisis it was occasionally extended in theory at least to cover the whole bailliage. So, as Augustin Thierry says, however restricted may have been the representation of the third estate on account of its exclusively municipal character, it nevertheless had the merit of feeling itself charged with the duty of pleading the cause, “not of this or that fraction, nor of this or that class of the people, but the cause of the whole body of the non-nobles, of the people without distinction of free or serf, of bourgeois or peasant.”
There were thus in 1484 deputies for and from each order or estate, but all represented one “electoral district”; and the bailliage for which they all appeared included the villes and, theoretically at least, the campaniae as well. For electoral purposes these were not separate and distinct as were the boroughs and the counties in England. Jean Masselin speaks of the assembly of 1484 as disposed “per nationes et turmas,”and specifically mentions the representatives of Paris, Picardy, and Normandy, the “chief nations” of France in the University of Paris. In the famous oration given in the assembly by Philippe Pot, he speaks of “his nation”, by which he undoubtedly means Burgundy, in which there were nine bailliages, no doubt the turmae or subdivisions of that “nation”, from whom representatives were returned. As a general rule, says Masselin, each bailliage returned one deputy for each of its three estates, the Church, the nobility, and status plebeius, but occasionally from places of great size or dignity there were two or three and in rare cases fewer than one for each estate, though this he felt was inadequate. From the bailliage of Senlis there was but one, from a few others two. But this inequality is of less significance because the votes in the assembly were not by individuals but by the bailliages as collective units.
The Estates in Parliament
In most national assemblies of the later Middle Ages a distinction should be noted more clearly than is sometimes done between their formal acts and the less formal proceedings of which the formal acts are often only the preliminary or the result, a distinction roughly analogous to the difference between a regular session of the House of Commons and a committee of the whole House in our own day. The difficulty in distinguishing the two was one cause of the momentous struggle with which the French Revolution opened. It was probably the chief cause of the series of conflicts between the two English Houses of Parliament in the seventeenth century. In more recent times it has led to serious misapprehension and frequent misstatement of the relations of the various parts of these medieval assemblies one to the other. Professor Pollard in his Evolution of Parliament has emphasised the fact, well known but often insufficiently attended to, that organically the English Parliament was a single body; only informally and for deliberation did it gradually become bicameral during the Middle Ages. In the formal sessions with which it opened and closed, the only ones in which the king was present in person or by deputy, the whole body was present in one room there to hear the formal pronunciatio in which the subjects were laid before them for their separate deliberation, or to learn at the end which of their decisions had obtained the royal favour and were to be made effective by the final sanction of the king. Not till the reign of Edward VI did the Commons have an official “House” set aside for their exclusive use in the Palace of St Stephen, and their journals begin only at the beginning of the same reign.
At the formal opening of parliament, while the Council sat on the woolsacks in the middle of the house and the Lords along the sides, the whole body of the Commons stood uncovered at the foot of the room below the bar, their speaker at their head. This over, the Commons withdrew for deliberation apart on this medieval “speech from the throne” to wherever they could find a suitable place, usually the chapter house of the Abbey across the street, and only returned when they were ready for the final formal ceremonies of the royal assent and dissolution.
The practice was somewhat the same in the early French assemblies. Masselin’s detailed description of the assembly chambers in 1484 shews that the third estate were segregated in the lower part of the room, though they were probably seated. The meeting was opened as in England by a speech of the Chancellor announcing the reasons for their summons and the action expected of them. Then the deliberation followed, all the Estates remaining at times where they were, as they seem to have done in 1467, contrary to the English practice; or sometimes separately, as is indicated at times in the Assembly of 1484, until a decision (conclusio) was reached on each part of the king’s demands, which seems then to have been reduced to writing. There was thus a considerable difference between the French practice in which the three estates at times deliberated together but never really fused, and the English, in which the knights of the shire and the burgesses regularly withdrew together and apart from the lords for common discussion.
The French Estates in times of crisis exercised unusual and enormous power, as in 1420, and Glasson believes that it was the very extravagance of their acts at such times that caused their later weakness. But the reasons for this weakness, and for the long intervals between their meetings as compared with the frequent parliaments in England, lie much deeper, and have their roots, some of them, in a past already distant in the fifteenth century. Some of the results of these same causes were clearly seen by Sir John Fortescue, and they are closely connected with the ones with which we are concerned. The French king, he says, has taken upon him “to sett tayles and other imposicions upon the commons without the assent of the III estates; but yet he wolde not sett any such charges, nor hath sette, uppon the nobles for fere of rebellion”. The growth of these impôts permanents which the king might take without consent is a sign of the increasing tendency toward absolutism in practice and theory; and this, together with the exemption of the nobility from such burdens, is at once a striking difference, noticeable to Fortescue between England and France in his day, and ail argument in favour of the more limited monarchy which he believed to exist at home. The great difference between the two countries in these two things, whether itself a cause or only the result of deeper differences, certainly was a practical factor of increasing importance in determining the future difference between parliamentary and constitutional England and the absolutism of eighteenth-century France. The Estates in 1484 struggled against this fatal tendency, but in vain. The theory insisted upon by the Estates survived in part in Bodin’s Six Livres de la Republique, but the practice became far otherwise. As Esmein sums it up: “In a word, the institution of the States General had proved abortive. They had no regular time of meeting but came into existence as the last resort of the royal government in times of crisis. As for their powers, the king demanded of them the vote of subsidies which he might impose without them, and the giving of counsel which he was free to disregard....But the absolute monarchy, with an instinct that was sure, mistrusted the States General even when so weakened: it had a sense of the existence in them of latent forces, which favouring events might well let loose. Hence, without abolishing the institution, it carefully refrained from calling them together. Their whole activity occurred under la monarchie temperée, between 1302 and 1614. The meeting of 1614 was the last before the Revolution.”
If the States General are the most interesting French parallel with English constitutional development, probably the history of the provincial estates would furnish the most interesting French analogy to the development of representative institutions in countries such as Germany and Italy, where the postponement of political unity to more modern times restricted the activity of their representative bodies to local affairs during the Middle Ages. These provincial estates were for single provinces what the States General were for the whole realm; and in general, where they were suffered to remain, they retained the form, the powers, and the general procedure found in the general estates of the fourteenth century. Varying in origin in the different provinces before their absorption in the Crown domains, some of these estates remained, particularly on the borders of the kingdom, long after the States General had fallen into abeyance; but since the ideas and practices to be found in them, as well as the general conditions out of which they grew, do not differ essentially from those already described for the realm as a whole, our limited space might better be employed by a brief consideration of representative institutions elsewhere in Western Europe.
In no country, not even excepting England and France, are these developments illustrated more clearly than in the Spanish peninsula. The remarkable development and maturity of representative institutions and ideas found in Spain, arising in the thirteenth century or before, reaching their climax in the fourteenth and fifteenth centuries, and declining during the late fifteenth century and the sixteenth, might well furnish the material for many volumes. These developments abundantly prove the careful statement of Professor Merriman: “The claim of the people to a share in the government was considerably more fully recognised, theoretically at least, in Spain than in England, at that stage of their development. The difficulty is to deal with so large and so important a subject in small compass. This difficulty is increased by the fact that the great constitutional age of Spain preceded the union of the crowns and must therefore be studied separately for Castile and Leon, and for the eastern kingdoms, while even among the latter there are often found differences that are fundamental. In such circumstances the only course open— though one rather unsatisfactory—is to choose the representative institutions of one kingdom for treatment and indicate the chief differences found in other kingdoms as variants from this. For this purpose the institutions of Catalonia will here be taken, because, as Professor Memman says, “the Cortes of Catalonia in this period resembled a modern legislative body perhaps more closely than any other in the peninsula”; and since the main purpose of this chapter is to make clear medieval representative institutions and ideas in general, rather than to trace their history in detail, it would seem better to choose as an illustration the more perfect forms of Catalonia rather than those of Castile, though the latter probably had an earlier beginning and certainly exercised a greater influence upon subsequent institutions and events. Catalonia is chosen instead of Aragon because the documentary history of its Cortes is now fully covered for our period in the Cortes... de Aragon y de Valencia, y Principado de Cataluña, whose magnificent volumes, still in process of publication by the Spanish Royal Academy of History, have not yet included any of the records of the kingdoms of Aragon and Valencia.
The assemblies in Christian Spain had come down from Visigothic times and were in their earlier development not unlike those of the same early period in England or France, especially in the fact that they included none beyond the nobles and the clergy. Conflicting statements have been made by Spanish historians early and modern as to the first appearance of representatives from the towns, but the first official mention of such representatives seems to have been in the decrees promulgated in the kingdom of Leon in 1188, where the presence of the archbishop, the bishops, and the magnates of the realm is noted—“cum electis civibus ex singulis civitatibus.” It is almost a century after this before certain indications are found of the appearance of such additional representatives in the other kingdoms, but by the end of the thirteenth century they are found in all.
Before the middle of the fourteenth century these representative institutions had assumed a form in Catalonia which is impressive in its definiteness and maturity, as well as in its completeness. In the case, for example, of the Cortes or Curia Generalis which met at Tortosa in 1331, we find summonses requiring the personal attendance of seven high secular ecclesiastics, of nineteen abbots, and of the Prior of the Order of Hospitallers in Catalonia, together with several members of the royal family and the King of Majorca. In addition to these, forty-three “nobiles” are summoned, thirty-eight of whom must appear in person and five are permitted to appear by proctor; forty-two “milites,” one of whom may appear by proctor. To six cities, Barcelona, Lerida, Tarragona, Gerona, Vich, and Manresa instructions are given to send syndics or proctors with full powers, and similar instructions are given in twelve towns to “probis hominibus ex universitate Cervarie,” as in the case of Cervera, or to “iuratis probis hominibus.”
There were three estates or brazos in the Cortes of Catalonia as in Castile, instead of four as in Aragon: the clergy, the “nobiles” and knights, and the proctors of the cities and towns. The nobles—in Castile usually called ricos hombres (richi homines)—corresponded rather closely to the barones in England (the word ricos as used here retaining its original meaning in all Indo-European languages, of “powerful”, “mighty”, “exalted”, “noble”, rather than our modern “rich”). The “milites” or caballeros, like the magnates, received individual summonses to appear in person, and when they did so, joined with the ricos hombres as one brag, or estate. This is a difference of great consequence from the practice at this time growing up in England by which the knights of the shire were associating themselves not with the barons but with the burgesses, in the discussion of the matters they were called together to treat. And even in Aragon, where there was a separate brazo de Caballeros, it never coalesced with the burgesses as in England.
The obligation of personal attendance in Catalonia, and apparently elsewhere in Spain, was as in England more lasting than in France. Though attendance in person was required in France by Philip the Fair, the magnates both lay and clerical were soon able to substitute an attendance by representatives, and regularly absented themselves, thus no doubt greatly weakening the influence of the Estates. In England this was avoided by the greater power of the king in the earlier period, and later by the greater importance of parliament, in which it gradually became an advantage and in time an honour to be present. In Catalonia it is clear that personal attendance was rigidly insisted upon except when a sufficient excuse could be given and sworn to. In the Cortes of 1331, for example, the king on learning that the Bishop of Barcelona intended to be represented by a proctor for reasons “non bene sufficientibus,” separately commanded him to appear in person, especially because he was “bound to take part in person” in the making of constitutions by the Cortes.
The representative element in the Cortes of Catalonia in 1331 consisted of syndics or procuratores chosen by the deans and chapters of the seven cathedral churches and the representatives from the cities and towns. Abbots were required to be present in person and were the sole representatives of their abbeys, since no summons issued for the attendance of monastic proctors. There was none for representatives of the parish clergy. Thus the practice in Catalonia in 1331 differed from that of the Estates in France to which monastic proctors were summoned, and from similar assemblies in England to which the parish clergy were summoned in the praemunientes clause in 1295 and occasionally thereafter until Convocation became separate from Parliament. But the most interesting and important feature of the Catalan and other Spanish Estates is in the representation of cities and towns—in 1331 respectively six and twelve in number in Catalonia—and in the peculiarities of this representation when compared with those of France and England in the same general period.
Mention of the presence of a third estate appears in Leon, as we have seen, as early as 1188, and about a century later references to the hombres buenos become common in all the kingdoms. “Many good men” of Barcelona are recorded as attending the Cortes in Catalonia as early as 1251, but, as it was to a meeting in Barcelona itself, and as no other burghers are mentioned, its significance might easily be overrated. By the year 1283, however, from two to four representatives were summoned from each of the cities and from “many” of the towns throughout Catalonia, and among the constitutions enacted and sealed by the king at that meeting, one provides that in future no general constitution for Catalonia shall be made by the king without the consent of the elves of Catalonia, as well as of the barons and knights, “vel maioris et sanioris partis eorundem.” Another provision promises that in future the king and his successors will convene a meeting of the Cortes in Catalonia once in every year in which to treat of the condition and reform of the country with the clergy secular and regular, with barons, knights, and “cum... civibus et hominibus villarum.”
Though “just cause” may often have been found for less frequent meetings, the latter of these provisions is remarkable, and it precedes by more than a quarter of a century the first similar enactment in England in the famous ordinances of 1311, assented to by the king only under compulsion. England can shew nothing comparable to the Catalan provision for the assent of the burgesses to new constitutions before the year 1322 in the well-known statute of York by which the ordinances of 1311 were repealed.
Thus from the opening of the fourteenth century and before, the regularity and the constitutional character of municipal representation is established by law in Catalonia, and all existing evidence seems to point to an actual practice conforming with the law. In 1300 it is distinctly stated that the ordinances made in the Cortes of that year are made with the counsel and assent and at the request not only of nobles and knights but of the citizens and men of the towns as well; it is further provided that no interpretation of the constitution should be made in future except with the help of jurists and in the presence of four ricos hombres and four citizens; and provision is made even for local committees consisting of one knight, one man of the law, and one citizen, to keep watch for breaches of the constitution.
In the summonses of this period in Catalonia, the procuradores of the towns are to have full power from their constituents, “tractandi, consenciendi, faciendi, et firmandi,” in all that shall be ordained there. In 1322 it is recorded that such differences of opinion arose in the Cortes that nothing could be agreed to, but nevertheless that the proctors of the cities and towns made a grant. It is this participation of the third estate alone in grants that marks one of the greatest of the differences between Spain and France on the one hand and England on the other, and this important difference played no small part in the great contrast between the continuance of representative institutions and the further development of constitutional principles in England a little later, at the same time that Spain and France, from beginnings often even more remarkable, were gradually lapsing into absolutism.
It seems clear from a general survey of the official documents of the Catalan Cortes of the fourteenth century that the representation of the cities and towns was very uniform from year to year. Thus the cities and the towns as well as the individual clergy, barons, and caballeros, obtained what might be called a prescriptive right to be summoned, a right which seems to have been respected by the king and prized by the burgesses. There is not in Catalonia at this time such a variation in the towns summoned as may be found in Castile or in England, where the king’s discretion alone seems to have determined what towns should send deputies. There is ample justification for Professor Merriman’s statement that the Catalan assemblies more nearly resembled a modern legislative body than any other in the Peninsula. One is tempted to substitute for “the Peninsula,” “the world.”
In definiteness of organisation and regularity of procedure neither the English Parliament nor the French Estates can compare with the Cortes of Catalonia at this time. Their nearest rival seems to have been in the sister kingdom of Aragon, in which a right of attendance similar to that in Catalonia was recognised by the king. A proof of this definiteness is found in the elaborateness of the procedure of habilitación, or determination of the qualification of members, which fills many pages of the records of the Cortes, in striking contrast with the Rolls of Parliament in England at the same period. Those summoned individually could substitute a proctor only in exceptional cases and for “just cause”; while chapters of churches and the universitates of towns, which of necessity appeared by deputy, were under obligation to see that their proctors were both idonei and entrusted with sufficient power to bind their principals in all the matters of which they were called together to treat, or for which their common consent, enactment, and confirmation were necessary. This formal determination of the poderes (credentials and instructions) of the members regularly preceded the principal business of the Cortes, and its importance and minuteness seem to prove that the representative constitution of the Catalan Cortes had no rival for definiteness in any national assembly outside the Spanish peninsula at this time. In the Cortes held at Perpignan in 1350 and 1351, for example, a committee of twelve was elected by the Cortes to examine the poderes of the members in conjunction with two jurists of the royal council, consisting of two bishops, two nobles, one abbot, one canon, two knights, a doctor of laws of Barcelona, another of Perpignan, and one citizen from each of the two cities of Lerida and Gerona.
It is true that this third estate in Catalonia, and in fact in all the Spanish kingdoms, seems to be in composition more closely allied to the third estate of France than to the “commons” of England. No Spanish procuradores represented such a body of constituents as we find in the English county court. They were all deputed as in France by the universitates of the cities and villes, and none came as in England from the body of a rural county. This difference is fundamental and its results are of great consequence. “There were two essential defects in the constitution of Castile, through which perhaps it was ultimately subverted,” says Hallam. “It wanted those two brilliants in the coronet of British liberty, the representation of freeholders among the commons, and trial by jury. The Cortes of Castile became a congress of deputies from a few cities, public-spirited indeed and intrepid, as we find them in bad times, to an eminent degree, but too much limited in number, and too unconnected with the territorial aristocracy, to maintain a just balance against the crown”. In Catalonia the cities represented were not so few in relation to the size of the realm as they became in Castile, but in neither is there anything like the English county court whose representatives were probably chosen by all the suitors in common whether they were knights or of lower status. While this is undoubtedly true and of an importance not easily overestimated, a part—though only a part—of the significance of this contrast loses its sharpness from the fact that the jurisdiction of the cities and villae of all the Spanish kingdoms, as in the banlieue of the towns in France, extended in most cases far into the campaniae beyond their walls, often including many hamlets as well as much open country. From such an extended jurisdiction it would be rash and probably incorrect to assume that the rural inhabitants had any such direct participation in elections as the members of an English county which included all the territory as far as the boundaries of the next shire. Many parts of the open country in Spain, as in France and unlike England, must have been wholly unrepresented. But there still remained considerable portions of it, within the jurisdiction of the greater towns, for which this was not the case, formally at least. And beginning early in the thirteenth century in Castile, the hombres buenos were often directed to appear por personeros de los concejos, not only de las ciudades et de las villas but de los lugares as well. What amount of actual participation the inhabitants of a lugar may have had the words of these formulae are far from making clear. It may have been very small, and was probably greater in the early fourteenth century than later. Colmeiro’s opinion that the choice of the town was construed as the act of all the inhabitants under its jurisdiction, which most of the French parallels seem to corroborate, may be accepted as the most probable explanation; but these expressions are not wholly without significance. In Catalonia, the ordinances of the Cortes of 1307 were made in an assembly that included none below the syndics of the cities and villae, but their ordinances were expressly extended not to these cities and towns alone, but “civitatibus et villis et locis nostris Chatalonie, et habitatoribus eorundem”; while in the Cortes of Barcelona in 1311 both the presence and the advice, as well as the approbation and consent to the ordinances made, extended to the syndics of the cities, the villae, “et locorum Chatalonie, qui ad nostram generalem curiam predictam pervenerunt.”
The procuradores from the Catalan towns varied in number, Barcelona usually having a larger deputation than any other, but as in the French Estates the voting units in the Cortes of Catalonia and the other Spanish kingdoms were towns and not individual proctors. There were of course many differences in the mode of electing these proctors between the cathedral chapters and the universitates of the cities and towns, and even among the latter alone. The actual power of the Cortes in the Spanish kingdoms in the great constitutional age were very great, and nowhere so great as in Aragon and Catalonia.
As in all representative bodies found in the developing national States of the West in this great constitutional period from the thirteenth to the fifteenth century, the ordinary powers of the Cortes in the Peninsula were exhibited most strikingly, on the one hand, in their control over enactments of law, less frequently in the necessity for their assent to measures of national policy; and on the other, in the great practical power involved in their theoretical right of making voluntary grants of supply in support of government. To these might be added an exceptional authority as in times of national crisis or of royal minority. No doubt it was largely this control over grants that brought about their control over enactment, and for a time the latter is found probably more explicitly recognised in Aragon and Catalonia than in any other Western State. Its gradual disappearance there, as in France in the later Middle Ages, is to be accounted for chiefly by the inability of the Cortes permanently to retain their earlier control over the national finances, and by the gradual growth of impôts permanents, which the kings were more and more collecting without their assent. Though the Cortes of the Peninsula at the height of their power were able to exact from their kings more striking formal recognition of their legal rights and powers than even England can show in this period, they were eventually stripped of these powers mainly because of their inability to make permanent the financial dependence of the Crown upon them, as the English Commons were able in the long run to do, chiefly on account of the continuous association of the gentry and burgesses in parliamentary grants from which all were exempt in Spain and France except the representatives of the towns. This fundamental difference in turn resulted mainly from the peculiar nature, extensive powers, and wider constituency of the county courts in England, which have no parallel on the Continent; a peculiarity which goes back in its historical causes to the character of the Norman Conquest of England itself, and the resulting consistent and astute policy of the strong Norman Kings and Henry II of retaining the old machinery of the county courts as a part of their scheme of establishing a vigorous and centralised royal administrative system at the expense of the power and jurisdiction of the feudal lords.
But if the powers of the Spanish Cortes were short-lived, they were impressive in their extent while they lasted. In Catalonia as well as in Aragon no laws were valid to which their assent had not been given, and they were able repeatedly to exact from their kings formal recognition of extensive popular rights of which even the concessions of Magna Carta fall short. To these they regularly required the king to promise his adherence under oath and seal, and this was done in Aragon and Catalonia, though probably not in Castile, at the formal session with which the Cortes closed. A consideration of the fueros ratified in these assemblies, and the constitutions enacted and included in the records of the Cortes, shews that the rights to which they were able to compel the king’s assent were in general more extensive and far more popular than any similar concessions then found in England, and the assumption is warranted that the proctors of the towns had a more direct and influential part in obtaining them than any such representatives had in England until a period considerably later. An illustration of their power in this respect is to be found in varying forms in an institution of the greatest importance common to all the greater kingdoms of Christian Spain, known in Catalonia as the Diputación General, a committee chosen in the Cortes to keep watch in the intervals between their sessions over the administration of the grants and constitutions to which they had assented, and consisting of members from each of the Estates.
In matters of grant the powers of the Cortes were as extensive as in the enactment of law. The principle was recognised as fully as in England that no new or unaccustomed dues could be levied by the king without the consent of the Cortes, and much of the revenue of the government came in the form of the grant or donativo made by the Cortes. The burden of it fell, however, on the towns alone, as the nobles and knights were supposed to acquit themselves of their obligation by personal service, and this in time proved one of the greatest points of practical weakness in the Spanish constitutions and contributed in large measure to the later development, so fatal to the liberties of the Peninsula, by which the kings were able gradually to obtain money without consent of the Estates and thus to dispense with their regular sessions.
But in the great age of Spanish constitutionalism this right was jealously guarded by the Cortes, and the grants were accompanied by petitions for redress of grievances—gravamina or greuges—of which the king was prayed to give redress, which are closely analogous to the cahiers of the French Estates and the petitions of the Commons in England. These were often complaints of particular nobles or towns and sometimes came from the whole brazo of the nobles and knights. Frequently they disclose serious contentions among the different Estates between which the king had to mediate. The king, as in England, gave separate responsiones to the several gravamina, and seems to have had much the same latitude in his replies as is found in the similar responsiones on the English Rolls of Parliament.
In the fifteenth century these great powers of the Spanish Cortes began to decline. In Castile the number of towns summoned to the Curia rapidly shrank, and the privileged classes were sometimes not summoned at all. The differences between the orders were cunningly used by the kings, and revenues were obtained from other sources which rendered the meetings of the Estates less and less necessary. Thus after the union of Castile and Aragon a development which had begun before was rapidly accelerated, and without formally destroying the various Cortes as institutions the sovereigns were at length able gradually to dispense with them as the Kings of France did with the Estates. “All in all, the Catholic Kings had managed to drive the Cortes of their various realms a long way on the road to destruction; but with all their efforts they were unable entirely to exterminate the ancient Spanish love of freedom and democracy, as the revolt of the comuneros in the succeeding reign was to prove in dramatic fashion.”
While the Estates in England, France, and Spain are probably the most instructive in the later Middle Ages to a student of the growth of political institutions in general, on account of the relatively early development of centralised and national monarchies, some of the other Western European States where centralisation came later than the period included in this chapter furnish remarkable instances of similar institutions and ideas, of a few of which space remains only for briefer mention.
As might be expected from the place and the man, it is in Italy and in the time of the Emperor Frederick II that we find what has been called the “first example of the modern representative system”. In 1232 he summoned two representatives of the “third estate” from each city and Castello to an assembly to treat concerning “the utility of the realm and the common good.” Two years later, in 1234, he ordained that a curia should be held in each of the provinces of the realm twice in the year, in which should be present, in addition to nobles and prelates, from each great city four men “de melioribus terre, pro parte universitatis,” and two from each of the smaller cities and castelli, for the purpose of presenting gravamina or complaints of injuries done by any official. Another instance similar to that in 1232 is found in 1240. Early in the fourteenth century instances of representation of the third estate became fairly common in many parts of Italy. In Savoy, beginning with the fourteenth century or a little before, assemblies both general and provincial are found which include representatives of the third estate. Before the end of the thirteenth century and frequently during the fourteenth and fifteenth in the States of the Church, meetings of provincial estates were held to which towns owing fealty to the Pope were bound to send syndics with their mandates; and even as early as the papacy of Innocent III (1207) there is mention of a summons to Rome of consults from cities within the papal jurisdiction.
So general had representation of the third estate become by the middle of the fourteenth century that Bartolus in his commentary on the term “consilium,” occurring even in a constitution of the year 392, assumes it as a matter of course. “Note”, he says, “that the heads of provinces assemble a council or universal parliament of the province. Which you must understand is not that all from the province are bound to go to it... but from all the cities certain persons are deputed as ambassadors or syndics who represent the city”.
In Naples and Sicily the tradition of Frederick II was revived under the Spanish monarchs by the transfer to them as well as to Sardinia of a representative system on the model of the Spanish Cortes.
In Germany, during the Middle Ages, the development of representative institutions was delayed by the persistence of feudal decentralisation and by the autocracy of the separate princes and nobles, but many indications are found of the activity of representatives, both as parts of the Landstände and on a wider scale in the Reichstag. In the Landtag, the vassals of the princes, including the towns, were often able to enforce against their lord the customary law of the district, and to make good their right of consent to impositions and to important questions of policy. In the Reichstag, from the time of William of Holland (1247-56), the towns were at times represented. In 1254 the promise was made that in future assemblies both lords and cities should send four “sollempnes nuncios” with full power, and in the next two years several colloquia generalia were held in which these were included, the royal confirmation of the great Landfriedensbund of the Rhenish cities in 1255 formally acknowledging the unanimous consent of nobles “et eciam civitatum.” In the troubled times that followed, the death of William and in the reign of Rudolf of Habsburg, there is little evidence of any representation of the third estate as contemplated by William. In fact it was not until the great struggle between Lewis of Bavaria and Pope John XXII that this element of the nation was called upon in general to give support to the imperial claims, as Philip IV of France had done against Boniface VIII thirty-six years before. In the call to the assembly at Frankfort in 1338, in which Lewis issued his famous law Licet Iuris, are included not merely secular and ecclesiastical princes, comites, and barones, but civitates et communitates, the latter to appear by two representatives “with sufficient mandate.” Such instances, however, are the exception, that of 1338 being the result of a crisis in the history of the Empire, as the first French Estates were of a similar conflict between the Papacy and the French kingdom; and complete recognition of the claims of the German cities to representation was not obtained within the period covered by this chapter, and in fact hardly before the Ewige Landfriede of Maximilian I in 1495 and the great Regiments-Ordnung of 1500—provisions which were not unlike the ordinances obtained by the French Estates in 1357 after the battle of Poitiers, not only in their both containing unprecedented recognition of the rights of the towns, but in the fact that both were followed by periods of reaction toward an absolutism greater than any which had preceded.
Further illustrations of developments similar in many ways to those in the countries already mentioned might be given from various other parts of Western Europe within our period, particularly from Sweden, with its system of four estates, from the other Scandinavian kingdoms and Iceland, the peculiar institutions of the Isle of Man, or the “States” of Jersey and Guernsey which have preserved a surprising number of their medieval institutions even to our own day, from Switzerland, the Netherlands, and locally from many others. The medieval Estates of the Irish Parliament, composed as they were exclusively of Anglo-Irish, were probably modelled too closely upon English precedents to furnish independent characteristics worth noting here, but, in closing, brief notice must be taken of a few of the peculiarities of the Estates of medieval Scotland, some of which were unusual if not unique.
The contrast in parliamentary institutions north and south of the Tweed is striking, but the chief difficulty in coming to a real understanding of the former for the medieval period lies in the constant influence of English constitutional ideas upon those of Scotland and the regular employment, especially after the reign of James I, in Scottish official documents of words and phrases borrowed from England. Are such phrases to mean what they mean in England, or are they mere formulae little more than meaningless, foreign importations never really naturalised in Scotland, probably little understood at the time, and never now to be given the full meaning they undoubtedly have for England. The latter is the view of the leading present-day historian of the Scots Parliament. In Scotland the strength of the kings was never as in England great enough to check the power of the feudal lords in the medieval period and thus to establish a strong administrative system as a foundation of constitutional development. Nationalism when it came in Scotland took other forms than constitutional; it was concentrated neither in the king as in France nor in parliament. Its first real organ was the Kirk. The earlier parliaments in Scotland were of the type usual in feudal Europe at that time, composed of the king’s tenants-in-chief. Innes believed that the addition of burgesses is to be dated from the Parliament of Cambuskenneth in 1326, but Professor Rait holds that this is not borne out by the records. At all events, they were occasionally present before the end of the fourteenth century, frequently in the fifteenth, and invariably in the latter half of it. Originally the smaller tenants of the king were bound to attend his councils as fully as the greater ones, but it is a sign of the weakness of the Scottish monarchs that they were never able to compel them to attend. James I attempted to secure their attendance by representatives without result; about the middle of the fourteenth century the lesser of them were exempted by law, and at least from that time they practically ceased to come and their influence is negligible in the Scottish Parliament. This is one of the greatest of the differences between its constitution and the institutions of England, and for Scotland one of the most unfortunate. In their powers, the Scottish Parliaments differed little theoretically from those of the other European national assemblies, including enactment of law and the grant of supply, but in the exercise of these powers they were greatly weakened, not only by their incompleteness of personnel but by the peculiarities of their procedure. Medieval parliaments everywhere were in the beginning regarded by their members as a burden, and attendance was only obtained by rulers strong enough to compel it.
Thus the king in Scotland had found it impossible to force his lesser tenants to appear, and even such members as did appear would not remain long enough to do the necessary business of a parliament. From the second of these facts arose one of the most peculiar and most unfortunate of Scottish institutions, the Lords of the Articles. In 1367 the Estates chose certain persons “to hold the parliament” (ad parliamentum tenendum) and the rest obtained leave to go home for the harvest. This precedent was followed with increasing frequency and by the early sixteenth century the only functions left to the Estates as a whole were the choosing of the Lords of the Articles at the opening of a parliament and the perfunctory ratification of their work as a matter of course at the end. Thus the parliament willingly and regularly handed over its whole power, even at times in the matter of voting a grant, to this committee. While they sat at all, the whole of the Estates met together in one house, but these sessions were so short, though they were fairly frequent, that nothing of importance could be done. Compared with the national assemblies of England, the Scottish Parliaments throughout the Middle Ages in general are utterly insignificant in importance, though of considerable interest on account of their peculiarity. “We possess no writs summoning a Parliament, no report of a debate in the Scottish Estates... Between 1437 and 1513 it is not easy to discover any single token of definite constitutional development, either in the direction of absolute government or in that of popular liberty. Not only does Scotland fail to produce a constitutional movement like that which characterizes the history of England; she does not develop any kind of constitution at all. No absolute monarch, no oligarchical council, no democratic parliament occupies the stage of her history for any length of time, nor does she know any free cities or any independent duchies. This constant condition of unstable equilibrium is not precisely analogous to the history of any other European country, and least of all is it like that of England, where we are apt to judge of national, by constitutional progress. Yet advance there certainly was, if not unbroken, still persistent, and persistently unconnected with questions relating to the constitution.”
The fate of these representative institutions, so widely spread and so surprisingly alike, was very different in different parts of Western Europe. In some, as in Germany, the continuance of feudal decentralisation and the long-belated appearance of an effective central authority caused these feudal Estates to remain with many of their essential features unchanged, and prevented their fusion into the national assembly of a State, often until modern times. In others, when the like feudal decentralisation gave way or was absorbed in a strong central authority at a comparatively early period, that authority was the authority of a monarch who soon made himself practically absolute and excluded the representatives of the people from all direct participation in the government of the State. This happened in Spain and France, where the Cortes and the Estates disappeared entirely, or became so occasional that their importance was lost as a regular organ of government. England is no doubt the most striking and far the most important instance of a third development, in which feudalism early gave way not to absolutism but to constitutionalism; where the representative Estates remained but became national instead of feudal, and were never so far weakened by monarchy that they could be suppressed by it, or prevented from exerting a strong and continuous influence which preserved the participation of the people in government and consequently limited the power of the monarch and protected his subjects from the arbitrary exercise of that power.
Space will not permit the detailed examination of the later development of all the medieval Estates, even for the west of Europe alone. It is probably more important to try to determine the general factors at work on the Estates by a comparison, in greater detail than would be otherwise possible, of two countries whose development was strikingly different but where these developments occurred nearly enough together, and therefore amid general surroundings sufficiently alike to enable us to discover the real causes of their dissimilarity.
For such a purpose the contrast of France and England is the most valuable. In both, the transition from feudal to what we usually call modem conditions took place before the Renaissance. In both, the changes are nearly enough contemporary to be comparable; and though the results were very different in the two countries, they were brought about amid conditions of the same age and of the same general kind. In no other country, with the possible exception of Spain, do these fundamental changes come early enough safely to illustrate by their peculiarities the factors that created the modern out of the medieval political world, and the constitutional history of Spain has not been sufficiently studied.
“England, after the Norman Conquest, began in a monarchy almost absolute; and it is perhaps for that reason that in the seventeenth century it emerged as a monarchy representative. Feudal France began with a royal authority almost totally powerless; and it is probably on that account that she ended in the seventeenth century in the monarchy absolute.” In these words the late Professor Esmein has pointed out the first and greatest of the factors which turned the institutions of France and England into channels so different from each other. But this statement is an apparent paradox whose profound truth becomes apparent only when examined in greater detail. Elsewhere the same author indicates another of these factors in the growing community of interest between the feudal nobility in England and the rising “middle class.” But the second of these factors with all its vast importance came in part as a result of the first. The broadest lines of distinction in constitutional development between France and England lie ultimately in the fact that in the former kingdom the feudal monarchy passed into the absolute monarchy while in England it became a constitutional monarchy. Why did one become absolute while the other became constitutional? It was because the English monarchy became national before it ceased to be feudal, at a time when the French monarchy still remained feudal only. When then the feudal element disappeared, as it ultimately did in both kingdoms, in England its place was taken by a government in which the Estates had already begun to share; in France there was no power in existence to replace the feudal monarchy but the uncontrolled power of an absolute king. The difference is owing to the regular participation of the Estates in England before the feudal monarchy disappeared, a participation which existed in that period of French history, with one exception, only on the rare occasions of popular unrest. On the decline of feudalism in France there was no authority, and no body of men, politically prepared permanently to take over or even to share with the king in the centralised government that was replacing feudal decentralisation. That place could be taken only by an authority that was at once centralised and national, and the only one then in existence to do it was a strong, national, but practically absolute monarch. To put it otherwise, in England there was participation and there was representation while feudal conditions still remained, and therefore when these conditions disappeared the strong centralised national power which emerged was one which retained the participation of the Estates. In France, since this participation had not begun during the period when feudal conditions flourished, so it could not continue when they began to decline, and the feudal monarchy was replaced by one practically, even if not theoretically, absolute. These results are inherent in feudal monarchy itself, and partly owing to the unusual strength of the feudal monarchs in England after the Norman Conquest, partly to the circumstances of that conquest itself. As Professor Dicey says, “A King who is forced to receive advice, means, at the present day, a King who is a King in name alone, who ‘ reigns but does not govern.’ According to the ideas prevailing in the eleventh century, it was rather the King’s privilege than his duty to receive counsel from the great men of his kingdom... The more powerful the monarch, the more frequent the conventions of his barons. In England these assemblies were constantly held, whilst in France, where the royal power was feeble, they became more and more rare. The reason of this is clear. A feudal monarch had to dread the isolation, not the union, of his liege men. A feudatory who threw off his sovereign’s rule, withdrew from his counsels. The Dukes of Burgundy, or Normandy, gradually dropped attendance at the royal court. For once let the barons attend their lord, and his authority was secure, since attendance was an acknowledgement of his sovereign rights...”
The decisive factor in determining these results for England was the early centralisation of administration, a centralisation which came far sooner there than elsewhere. It was this that made England the only Western country with a common law little influenced by Rome, and this too ultimately made her a constitutional instead of an absolute monarchy. The great founders of this strong central administration, William I, Henry I, and Henry II, were the first great builders of modern constitutionalism. They laid in their administrative reforms the foundation on which the superstructure of the English “representative monarchy” was later to rise. Save for the permanent foundations they laid, the outbursts of popular discontent at arbitrary rule would have been as ephemeral in England as the protests of the French États Généraux in the fourteenth century.
It was not so much mere centralisation that had these important results, it was early centralisation. France became centralised too, but too late to save constitutionalism or to secure for her a common law based almost wholly on the customs of the land. England, on the other hand, received at the strong hands of her kings before the eleventh and twelfth centuries were over an administrative system so extensive, so strong, and so uniform, that it created the immediate necessity for a uniform procedure and ultimately for a system of legal principles common to the whole realm, and this at so early a period that the gradually recovering Roman Law was not yet strong enough to make its bid to be that common system. When the law of Rome had again become strong enough in Western Europe, for England the opportunity had passed, and England was already inoculated against it; she already had a common law of her own, which Rome was never afterwards able to replace. England had been forced by her early centralisation of judicial administration to build a general system of common law from materials then at hand, and at that early time it was not yet Roman but English materials alone that were at hand. England and her descendants alone of all the Western nations have today a common law almost entirely independent of Rome, on account of the great centralising work of her kings in the eleventh and twelfth centuries; and mainly for the same reason, England alone preserved for the Western world the continuity of the development from feudalism to constitutionalism. This could not have been merely because England became centralised, for other nations became centralised too. It was because she became centralised early, earlier than any of the other national States of the West. It was in part the consequences of the nature of the Conquest itself and in part the masterful character of the line of kings the Conquest gave to England, that led to this early centralisation of administration at the expense of the jurisdiction of the feudal lords; and the monarchy that resulted, though in character feudal, was the strongest of its day. But the strength resulted not only in the earliest centralisation of jurisdiction, procedure, and law; to it we must attribute that other characteristic which Professor Dicey considers the chief badge of royal authority in feudal times, the regularity of the attendance of the barones in answer to the royal summons to the Curia Regis. Thus the barones became the first “estate”; and, thanks to the strength of the king, an estate which was never suffered long to absent itself from the work of his councils. And it was with this estate, when the populus was extended to include the milites and the burgesses, beginning with the thirteenth century, that the representatives of these classes gradually merged, as new parts “dans une organisation préexistante.”
In the beginning it was the feudal obligation of the barons to attend their lord’s court, and it is the unusual vigour with which the English king was able to exact it with regularity, rather than the strength of these barons or their independent spirit, to which we must trace back the causes of English constitutionalism. But in order to make the whole of this development clear, it is not only necessary to understand its beginnings, but its results as well. The work of the early kings may be summarised as: (1) a centralisation of administration stronger and earlier than any found elsewhere, (2) a regularity in the meetings of the Curia, which the strength of the English king made unique in Western Europe, (3) a consequent sharing in the tasks of administration between king and barons, which in time became continuous, permanent, and regular. And this sharing in the burdens of administration became of greater and greater constitutional importance the more closely it brought the members of the King’s Council, as iusticiarii itinerante, in closer and closer touch with the knights in the county courts, whose political development had been steadily going on locally side by side with that of the central Curia. Thus began the rapprochement of the estate of the barons and those knights who were later to be incorporated with them as an added estate in a representative parliament.
It was the encroachment of a centralised authority upon the powers and jurisdiction of the feudal lords that marked the development of both England and France in the later Middle Ages. But in England this had started earlier and was becoming national and constitutional even while it yet remained in many respects feudal. The individual barone became a baronagium, an estate of the realm, though still feudal vassals of a common lord, while their feudal auxilia gradually became parliamentary grants, without wholly losing at once their original feudal character; and the nature of these gradual transitions is typical of the whole development from feudalism to nationalism, and in this case to constitutionalism.
Originally the king was both dominus and Rex. In the Norman period he had been able largely to “live of his own”. These strictly feudal revenues as dominus sufficed for most of his needs. But every advance of the central administration tended to increase his revenues as Rex, and an increase of these revenues was, we may suspect, as often as not the real reason for administrative reforms, rather than any desire for justice. In general, the extension of this central administration meant a corresponding transformation of the king’s revenues: it was more to the king as Rex and less and less as mere dominus that they were coming. The fact is that on its economic side feudalism was declining, and the ordinary revenues properly to be called feudal were gradually drying up. It was partly resentment against this that led to the baronial uprising which produced Magna Carta. The barons rightly attributed part of this result to the reforms of Henry II, and among their demands were included several which would have undone some important parts of his work if the designs of the barons had been fully realised.
This drying-up of feudal revenue necessarily affected the king, whose demesne was involved, no less than the lands in the hands of tenants. Thus John and Henry III were driven more and more to depend on grants, which as we have seen were truly national in scope even though their origin is to be traced to feudal custom. The strong kings of the eleventh and twelfth centuries, in adding to their strength by extending their claims as Rex, could hardly have foreseen that in this nationalising the necessity of taking the nation into partnership in that administration. But the proof that they were actually doing so is seen in the baronial claims in the reign of Henry III, as well as the baronial demand for a control of administration in the Provisions of Oxford, and the ordinances of the barons in 1311, in the concessions of Edward I in the confirmation of the charters of 1297, in the distinction made in the reign of Edward II between the king and the Crown, in the extension of baronial control over the Exchequer and even over the King’s Wardrobe, and finally in the rapid enlargement of the powers and claims of parliament which reached their height at the time of the Lancastrians.
By making English administration national, the kings of the eleventh and twelfth centuries also made inevitable national participation in that administration, just so soon as the nation should become conscious of itself, and just so far as classes or “estates” of the people strong enough and politically self-conscious enough should arise to demand their proper share in this participation. This consciousness of nationalism began to be effective in the thirteenth century, particularly in the long weak reign of Henry III, and by the fourteenth century it had extended down from the barons to knights and burgesses who, in theory if not entirely in fact, had become the commons of the whole realm—communa totius Angliae.
Thus constitutionalism in England took the place of feudalism and gradually grew out of it. In France, on the contrary, the original estate of the barons never became so closely connected with the administration of the kingdom as in England, largely because the king was unable to compel them regularly to attend him. Neither was there in France that early strengthening and centralising of administration to be seen in England, nor the equally important linking up of the central Curia and the local courts by a systematic and periodical employment of itinerant members of the Curia. Without this encroachment of royal power as in England, feudal decentralisation in France remained longer and while it remained was less affected by the growing tendency toward nationalism. Thus when feudalism finally did decline in France, the royal power that replaced it was the power of a king who did in fact become national, but in doing so did not to the same degree become constitutional as in England. No Estates were in France so closely interwoven with the royal administration that they could not be dispensed with without endangering that administration itself or destroying its national character. In the seventeenth century Loyseau could say of the French monarchy that it was a monarchy royal and not seignorial, “a perfect sovereignty in which the estates have no part.”
Elsewhere, for local reasons, the developments were somewhat different. In Scotland, for example, no powerful kings appeared during the earlier development, as in England, and in later times no constitutional monarchy really worthy the name. But the latter result was not, as in France, owing to the growth of an absolute monarchy, but rather to the longer continuance of feudal anarchy. To the very end of the Middle Ages and long afterward, the kings of Scotland were both irresponsible and weak. Though parliaments were frequent, they were too little representative of the nation to impose any constitutional limitations upon the king of lasting importance, while at the same time the monarchy was so completely at the mercy of factions of the nobles that it was never able to establish itself on an independent basis. Scotland produced neither strong monarchy nor constitutionalism; she retained feudal anarchy so long that neither of these had a chance to develop in the Middle Ages. Even locally her constitutional life was weaker than in most continental countries, though by no means non-existent. The representative institutions of the burghs, particularly in the conventions of the royal burghs, have no doubt been given an exaggerated importance by some Scottish constitutional writers of modern times, and a greater antiquity has been attributed to them than contemporary evidence seems to warrant. Nevertheless, before the Reformation, there can be little doubt that it was in these burghs that Scotland’s chief constitutional life was to be found, and the burghs are at last beginning to receive the attention from constitutional historians that they have long deserved.
In most other Western States, where neither royal absolutism nor constitutional monarchy developed, this lack of development was the result of the lateness of the unification. Effective centralised administration and a common law go hand in hand as a rule. Germany, for example, got neither of these before the late fifteenth century. This meant, however, merely that the communes remained local; they were never merged in an effective centralised but constitutional monarchy as in England nor destroyed by an effective centralised absolutism as in France. These institutions survived, but survived only locally, until modern times. In many places, however, the local constitutional life remained strong and vigorous and outlasted the Middle Ages to contribute to an important degree, when later combined with parliamentary institutions borrowed from England, to Continental constitutionalism in modem times and under modern conditions, when central authority had finally become established and revolution had destroyed the most important remnants of feudal particularism which had burdened it hitherto.
The later history of the medieval Estates thus varied widely from country to country. In some they remained merely local, in others they for a time shewed promise of combining with the growing centralised power of the nation, only to be later suppressed by the monarchy. In England, circumstances were more favourable, and constitutional monarchy resulted. But amid all these variations, it may be said that, whenever constitutionalism arose out of an earlier feudalism, its rise and its continuance alike were conditioned upon a corresponding appearance and participation in government of the medieval Estates or their descendants.