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$Title{History Of Europe During The Middle Ages
Notes To Book VIII: Part VI}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Notes To Book VIII: Part VI
Note XII

     This passage in a contemporary writer, being so unequivocal as it is,
ought to have much weight in the question which an eminent foreigner has
lately raised as to the duration of the distinction between the Norman and
English races.  It is the favorite theory of M. Thierry, pushed to an extreme
length both as to his own country and ours, that the conquering nation, Franks
in one case, Normans in the other, remained down to a late period - a period
indeed to which he assigns no conclusion - unmingled, or at least
undistinguishable, constituting a double people of sovereigns and subjects,
becoming a noble order in the state, haughty, oppressive, powerful, or, what
is in one word most odious to a French ear in the nineteenth century,
aristocratic.

     It may be worthy of consideration, since the authority of this writer is
not to be disregarded, whether the Norman blood were really blended with the
native quite so soon as the reign of Henry II.; that is, whether
intermarriages in the superior classes of society had become so frequent as to
efface the distinction.  M. Thierry produces a few passages which seem to
intimate its continuance.  But these are too loosely worded to warrant much
regard; and he admits that after the reign of Henry I. we have no proof of any
hostile spirit on the part of the English towards the new dynasty; and that
some efforts were made to conciliate them by representing Henry II. as the
descendant of the Saxon line.  (Vol. ii. p. 374.) This, in fact, was true; and
it was still more important that the name of English was studiously assumed by
our kings (ignorant though they might be, in M. Thierry's phrase, what was the
vernacular word for that dignity), and that the Anglo-Normans are seldom, if
ever, mentioned by that separate designation.  England was their
dwelling-place, English their name, the English law their inheritance; if this
was not wholly the case before the separation of the mother country under
John, and yet we do not perceive much limitation necessary, it can admit of no
question afterwards.

     It is, nevertheless, manifest that the descendants of William's tenants
in capite, and of others who seized on so large a portion of our fair country
from the Channel to the Tweed, formed the chief part of that aristocracy which
secured the liberties of the Anglo-Saxon race, as well as their own, at
Runnymede; and which, sometimes as peers of the realm, sometimes as well-born
commoners, placed successive barriers against the exorbitances of power, and
prepared the way for that expanded scheme of government which we call the
English constitution.  The names in Dugdale's Baronage and in his
Summonitiones ad Parliamentum speak for themselves; in all the earlier
periods, and perhaps almost through the Plantagenet dynasty, we find a great
preponderance of such as indicate a French source. New families sprung up by
degrees, and are now sometimes among our chief nobility; but in general, if we
find any at this day who have tolerable pretensions to deduce their lineage
from the Conquest, they are of Norman descent; the very few Saxon families
that may remain with an authentic pedigree in the male line are seldom found
in the wealthier class of gentry.  This is of course to be taken with
deference to the genealogists. And on this account I must confess that M.
Thierry's opinion of a long-continued distinction of races has more semblance
of truth as to this kingdom than can be pretended as to France, without a
blind sacrifice of undeniable facts at the altar of plebeian malignity.  In
the celebrated Lettres sur l'Histoire de France, published about 1820, there
seems to be no other aim than to excite a factious animosity against the
ancient nobility of France, on the preposterous hypothesis that they are
descended from the followers of Clovis, that Frank and Gaul have never been
truly intermingled, and that a conquering race was, even in this age,
attempting to rivet its yoke on a people who disdained it.  This strange
theory, or something like it, had been announced in a very different spirit by
Boulainvilliers in the last century.  But of what family in France, unless
possibly in the eastern part, can it be determined with confidence whether the
founder were Frank or Gallo-Roman?  Is it not a moral certainty that many of
the most ancient, especially in the south, must have been of the latter
origin?  It would be highly wrong to revive such obsolete distinctions in
order to keep up social hatreds were they founded in truth; but what shall we
say if they are purely chimerical?

Note XIII

     It appears to have been the opinion of Madox, and probably has been taken
for granted by most other antiquaries, that this court, denominated Aula or
Curia Regis, administered justice when called upon, as well as advised the
crown in public affairs, during the first four Norman reigns as much as
afterwards.  Allen, however, maintained (Edinb. Rev. xxvi. p. 364) that "the
administration of justice in the last resort belonged originally to the great
council.  It was the king's baronial court, and his tenants in chief were the
suitors and judges." Their unwillingness and inability to deal with intricate
questions of law, which, after the simpler rules of Anglo-Saxon jurisprudence
were superseded by the subtleties of Normandy, became continually more
troublesome, led to the separation of an inferior council from that of the
legislature, to both which the name Curia Regis is for some time indifferently
applied by historians.  This was done by Henry II., as Allen conjectures, at
the great council of Clarendon in 1164.

     The Lords' Committee took another view, and one, it must be confessed,
more consonant to the prevailing opinion.  "The ordinary council of the king,
properly denominated by the word 'concilium' simply, seems always to have
consisted of persons selected by him for that purpose; and these persons in
later times, if not always, took an oath of office, and were assisted by the
king's justiciaries or judges, who seem to have been considered as members of
this council; and the chief justiciar, the treasurer and chancellor, and some
other great officers of the crown, who might be styled the king's confidential
ministers, seem also to have been always members of this select council; the
chief justiciar, from the high rank attributed to his office, generally acting
as president.  This select council was not only the king's ordinary council of
state, but formed the supreme court of justice, denominated Curia Regis, which
commonly assembled three times in every year, wherever the king held his
court, at the three great feasts of Easter, Whitsuntide, and Christmas, and
sometimes also at Michaelmas.  Its constant and important duty at those times
was the administration of justice." (P. 20.)

     It has been seen in a former note that the meetings de more, three times
in the year, are supposed by Mr. Allen to have been of the great council,
composed of the baronial aristocracy.  The positions, therefore, of the Lord's
committee were of course disputed in his celebrated review of their Report.
"So far is it," he says, "from being true that the term Curia Regis, in the
time of the Conqueror and his immediate successors, meant the king's high
court of justice, as distinguished from the legislature, that it is doubtful
whether such a court then existed." (Ed. Rev. xxxv. 6.) This is expressed with
more hesitation than in the earlier article, and in a subsequent passage we
read that "the high court of justice, to which the committee would restrict
the appellation of Curia Regis, and of which such frequent mention is made
under that name in our early records and courts of law, was confirmed and
fully established by Henry II., if not originally instituted by that prince."
(P. 8.)

     The argument of Mr. Allen rests very much on the judicial functions of
the witenagemot, which he would consider as maintained in its substantial
character by the great councils or parliaments of the Norman dynasty.  In this
we may justly concur; but we have already seen how far he is from having a
right to assume that the Anglo-Saxon kings, though they might administer
justice in the full meetings called witenagemots, were restrained from its
exercise before a smaller body more permanently attached to their residence.
It is certain that there was an appeal to the king's court for denial of
justice in that of the lord having territorial jurisdiction, and, as the words
and the reason imply, from that of the sheriff.  (Leg. Hen. I. c. 58.) This
was also the law before the Conquest. But the plaintiff incurred a fine if he
brought his cause in the first instance before the king.  (Thorpe's Ancient
Laws, p. 85; and see Edinb. Rev. xxxv. 10.) It hardly appears evident that
these cases, rare probably and not generally interesting, might not be
determined ostensibly, as they would on any hypothesis be in reality, by the
chancellor, the high justiciar, and other great officers of the crown, during
the intervals of the national council; and this is confirmed by the analogy of
the royal courts in France, which were certainly not constituted on a very
broad basis.  The feudal court of a single barony might contain all the
vassals; but the inconvenience would have become too great if the principle
had been extended to all the tenants in chief of the realm.  This relates to
the first four reigns, for which we are reduced to these grounds of probable
and analogical reasoning, since no proof of the distinct existence of a
judicial court seems to be producible.

     In the reign of Henry II. a court of justice is manifestly
distinguishable both from the select and from the greater council.  "In the
Curia Regis were discussed and tried all pleas immediately concerning the king
and the realm; and suitors were allowed, on payment of fines, to remove their
plaints from inferior jurisdictions of Anglo-Saxon creation into this court,
by which a variety of business was wrested from the ignorance and partiality
of lower tribunals, to be more confidently submitted to the decision of judges
of high reputation.  Some plaints were also removed into the Curia Regis by
the express order of the king, others by the justices, then itinerant, who not
unfrequently felt themselves incompetent to decide upon difficult points of
law.  Matters of a fiscal nature, together with the business performed by the
Chancery, were also transacted in the Curia Regis.  Such a quantity of
miscellaneous business was at length found to be so perplexing and
impracticable, not only to the officers of the Curia Regis, but also to the
suitors themselves, that it became absolutely necessary to devise a remedy for
the increasing evil.  A division of that court into distinct departments was
the consequence; and thenceforth pleas touching the crown, together with
common pleas of a civil and criminal nature, were continued to the Curia
Regis; plaints of a fiscal kind were transferred to the Exchequer; and for the
Court of Chancery were reserved all matters unappropriated to the other
courts." (Hardy's Introduction to Close Rolls, p. 23.)

     Mr. Hardy quotes a passage from Benedict Abbas, a contemporary historian,
which illustrates very remarkably the development of our judicial polity.
Henry II., in 1176, reduced the justices in the Curia Regis from eighteen to
five; and ordered that they should hear and determine all writs of the kingdom
- not leaving the king's court, but remaining there for that purpose; so that,
if any question should arise which they could not settle, it should be
referred to the king himself, and be decided as it might please him and the
wisest men of the realm.  And this reduction of the justices from eighteen to
five is said to have been made per consilium sapientium regni sui; which may,
perhaps, be understood of parliament.  But we have here a distinct mention of
the Curia Regis, as a standing council of the king, neither to be confounded
with the great council or parliament, nor with the select body of judges,
which was now created as an inferior, though most important tribunal.  From
this time, and probably from none earlier, we may date the commencement of the
Court of King's Bench, which very soon acquired, at first indifferently with
the council, and then exclusively, the appellation of Curia Regis.

     The rolls of the Curia Regis, or Court of King's Bench, begin in the
sixth year of Richard I.  They are regularly extant from that time; but the
usage of preserving a regular written record of judicial proceedings was
certainly practised in England during the preceding reign.  The roll of
Michaelmas Term, in 9 John, contains a short transcript of certain pleadings
in 7 Hen. II., "proving that the mode of enrolment was then entirely settled."
(Palgrave's Introduction to Rot. Cur. Regis, p. 2.) This authentic precedent
(in 1161), though not itself extant, must lead us to carry back the judicial
character of the Curia Regis, and that in a perfectly regular form, at least
to an early part of the reign of Henry II.; and this is more probable than the
date conjectured by Allen, the assembly at Clarendon in 1164. ^a But in fact
the interruption of the regular assemblies of the great council, thrice a
year, which he admits to date from the reign of Stephen, would necessitate,
even on his hypothesis, the institution of a separate court or council, lest
justice should be denied or delayed.  I do not mean that in the seventh year
of Henry II. there was a Court of King's Bench, distinct from the select
council, which we have not any grounds for affirming, and the date of which I,
on the authority of Benedict Abbas, have inclined to place several years
lower, but that suits were brought before the king's judges by regular
process, and recorded by regular enrolment.

[Footnote a: This discovery has led Sir F. Palgrave to correct his former
opinion, that the rolls of Curia Regis under Richard I. are probably the first
that ever existed, Glanvil giving us no reason to presume any written records
in his time.  English Commonw. vol. ii. p. I.]

     These rolls of the Curia Regis, or the King's Court, held before his
justices or justiciars, are the earliest consecutive judicial records in
existence.  The Olim Registers of the Parliament of Paris, next to our own in
antiquity, begin in 1254. ^b (Palgrave's Introduction, p. I.) Every reader, he
observes, will be struck by the great quantity of business transacted before
the justiciars.  "And when we recollect the heavy expenses which, even at this
period, were attendant upon legal proceedings, and the difficulties of
communication between the remote parts of the kingdom and the central
tribunal, it must appear evident that so many cases would not have been
prosecuted in the king's court had not some very decided advantage been
derived from this source." (P. 6.) The issues of fact, however, were remitted
to be tried by a jury of the vicinage; so that, possibly, the expense might
not be quite so considerable as is here suggested.  And the jurisdiction of
the county and hundred courts was so limited in real actions, or those
affecting land, by the assizes of novel disseizin and mort d'ancestor, that
there was no alternative but to sue before the courts at Westminster.

[Footnote b: They are published in the Documens Inedits, 1839, by M. Beugnot.]

     It would be travelling beyond the limits of my design to dwell longer on
these legal antiquities.  The reader will keep in mind the threefold meaning
of Curia Regis: the common council of the realm, already mentioned in a former
note, and to be discussed again; the select council for judicial as well as
administrative purposes; and the Court of King's Bench, separated from the
last in the reign of Henry II., and soon afterwards acquiring, exclusively,
the denomination Curia Regis.

     In treating the judges of the Court of Exchequer as officers of the
crown, rather than nobles, I have followed the usual opinion.  But Allen
contends that they were "barons selected from the common council of the realm
on account of their rank or reputed qualifications for the office." They met
in the palace; and their court was called Curia Regis, with the addition "ad
scaccarium." Hence Fleta observes that, after the Court of Exchequer was
filled with mere lawyers, they were styled barons, because formerly real
barons had been the judges; "justiciarios ibidem commorantes barones esse
dicimus, eo quod suis locis barones sedere solebant." (Edinb. Rev. xxxv. II.)
This is certainly an important remark.  But in practice it is to be presumed
that the king selected such barons (a numerous body, we should remember) as
were likely to look well after the rights of the crown. The Court of Exchequer
is distinctly traced to the reign of Henry I.

Note XIV

     The theory of succession to the crown in the Norman period intimated in
the text has now been extensively received.  "It does not appear," says Mr.
Hardy, "that any of the early English monarchs exercised any act of sovereign
power, or disposed of public affairs, till after their election and
coronation. . . .  These few examples appear to be undeniable proofs that the
fundamental laws and institutions of this kingdom, based on the Anglo-Saxon
custom, were at that time against an hereditary succession unless by common
consent of the realm." (Introduction to Close Rolls, p. 35.) It will be seen
that this abstinence from all exercise of power cannot be asserted without
limitation.

     The early kings always date their reign from their coronation, and not
from the decease of their predecessor, as is shown by Sir Harris Nicolas in
his Chronology of History (p. 272).  It had been with less elaborate research
pointed out by Mr. Allen in his Inquiry into the Royal Prerogative.  The
former has even shown that an exception which Mr. Allen had made in respect of
Richard I., of whom he supposes public acts to exist, dated in the first year
of his reign, but before his coronation, ought not to have been made; having
no authority but a blunder made by the editors of Rymer's Foedera in
antedating by one month the decease of Henry II., and following up that
mistake by the usual assumption that the successor's reign commenced
immediately, in placing some instruments bearing date in the first year of
Richard just twelve months too early. This discovery has been confirmed by Mr.
W. Hardy in the 27th volume of the Archaeologia (p. 109), by means of a
charter in the archives of the duchy of Lancaster, where Richard, before his
coronation, confirms the right of Gerald de Camville and his wife Nichola to
the inheritance of the said Nichola in England and Normandy, with an
additional grant of lands.  In this he only calls himself "Ricardus Dei gratia
dominus Angliae." It has been observed, as another slighter circumstance, that
he uses the form ego and meus instead of nos and noster.

     Whatever, therefore, may have been the case in earlier reigns, all the
kings, indeed, except Henry II., having come in by a doubtful title, we
perceive that, as has been before said in the text on the authority of an
historian, Richard I. acted in some respects as king before the title was
constitutionally his by his coronation.  It is now known that John's reign
began with his coronation, and that this is the date from which his charters,
like those of his predecessors, are reckoned.  But he seems to have acted as
king before.  (Palgrave's Introduction to Rot. Cur. Regis, vol. i. p. 91; and
further proof is adduced in the Introduction to the second volume.) Palgrave
thinks the reign virtually began with the proclamation of the king's peace,
which was at some short interval after the demise of the predecessor.  He is
positive indeed that the Anglo-Saxon kings had no right before their
acceptance by the people at their coronation.  But, "after the Conquest," he
proceeds, "it is probable, for we can only speak doubtingly and
hypothetically, that the heir obtained the royal authority, at least for the
purposes of administering the law, from the day that his peace was proclaimed.
He was obeyed as chief magistrate so soon as he was admitted to the high
office of protector of the public tranquillity.  But he was not honored as the
king until the sacred oil had been poured upon him, and the crown set upon his
head, and the sceptre grasped in his hand." (Introduct. to Rot. Cur. Reg. p.
92.)

     This hypothesis, extremely probable in all cases where no opposition was
contemplated, is not entirely that of Allen, Hardy, and Nicolas; and it seems
to imply an admitted right, which indeed cannot be disputed in the case of
Henry II., who succeeded by virtue of a treaty assented to by the baronage,
nor is it likely to have been in the least doubtful when Richard I. and Henry
III. came to the throne.  It is important, however, for the unlearned reader
to be informed that he has been deceived by the almanacs and even the
historians, who lay it down that a king's reign has always begun from the
death of his predecessor: and yet, that, although he bore not the royal name
before his coronation, the interval of a vacant throne was virtually but of a
few days; the successor taking on himself the administration without the royal
title, by causing public peace to be proclaimed.

     The original principle of the necessity of consent to a king's succession
was in some measure preserved, even at the death of Henry III. in 1272, when
fifty-six years of a single reign might have extinguished almost all personal
recollections of precedent.  "On the day of the king's burial the barons swore
fealty to Edward I., then absent from the realm, and from this his reign is
dated." Four days having elapsed between the death of Henry and the
recognition of Edward as king, the accession of the latter was dated, not from
his father's death, but from his own recognition.  Henry died on the 16th of
November, and his son was not acknowledged king till the 20th.  (Allen's
Inquiry, p. 44, quoting Palgrave's Parliamentary Writs.) Thus this recognition
by the oath of fealty came in and was in the place of the coronation, though
with the important difference that there was no reciprocity.

Note XV

     Mr. Allen has differed from me on the lawfulness of private war, quoting
another passage from Glanvil and one from Bracton (Edinb. Rev. xxx. 168); and
I modified the passage after the first edition in consequence of his remarks.
But I adhere to the substance of what I have said.  It appears, indeed, that
the king's peace was originally a personal security, granted by charter under
his hand and seal, which could not be violated without incurring a penalty.
Proofs of this are found in Domesday, and it was a Saxon usage derived from
the old Teutonic mundeburde.  William I., if we are to believe what is
written, maintained the peace throughout the realm.  But the general
proclamation of the king's peace at his accession, which became the regular
law, may have been introduced by Henry II. Palgrave, to whom I am indebted,
states this clearly enough.  "Peace is stated in Domesday to have been given
by the king's seal, that is, by a writ under seal.  This practice, which is
not noticed in the Anglo-Saxon laws, continued in the protections granted at a
much later period, though after the general law of the king's peace was
established such a charter had ceased to afford any special privilege.  All
the immunities arising from residence within the verge or ambit of the king's
presence - from the truces, as they are termed in the continental laws, which
recurred at the stated times and seasons - and also from the 'handselled'
protection of the king, were then absorbed in the general declaration of the
peace upon the accession of the new monarch.  This custom was probably
introduced by Henry II.  It is inconsistent with the laws of Henry I.; which,
whether an authorized collection or not, exhibit the jurisprudence of that
period, but it is wholly accordant with the subsequent tenor of the
proceedings of the Curia Regis." (English Commonwealth, vol. ii. p. 105.)

     A few words in Glanvil (those in Bracton are more ambiguous), which may
have been written before the king's peace was become a matter of permanent
law, or may rather refer to Normandy than England, ought not, in my opinion,
to be set against so clear a declaration.  The right of private war in the
time of Henry II. was giving way in France; and we should always remember that
the Anglo-Norman government was one of high prerogative.  The paucity of
historical evidence or that for records for private war, as a usual practice,
is certainly not to be overlooked.