A Short Constitutional History of England ... Third edition, revised and in part re-written by W. G. Etheridge

Preface

TO THE FIRST EDITION Although many handbooks of Constitutional History exist, I hope that the arrangement of this little book will be found useful enough to warrant its entry on a field apparently already so well occupied. The want of a small book on English Constitu tional History, in which the various subjects are treated in a connected and consecutive manner, has been much felt by me, not only whilst myself reading for the History School, but also whilst subsequently engaged in reading with others. I have therefore determined to publish my notes, in the hope that they may be useful to those about to read for the Schools of Modern History or Jurisprudence, and to any one who desires to ascertain at a glance the leading facts in the history of any subject of con stitutional interest. It has been my endeavour to give, with the Com piler's kind permission, as many references as possible to Professor Stubbs' Collection of Charters, in the hope that such references may in some slight degree assist the reader in his study of that valuable work. I have to acknowledge with gratitude the courtesy of Professor Stubbs in allowing these references and

PREFACE.

. extracts to be made, and take this opportunity of expressing my thanks to those who have kindly aided me with suggestions and advice, more especially to Mr. F. S. Pulling, M.A., of Exeter College ; Mr. F. York Powell, M.A., Lecturer of Christ Church ; and Mr. R. Lodge, M.A., Fellow and Tutor of Brasenose. I trust that the dates— to verify which no pains have been spared — will be found accurate, and that the arrangement of the notes will really prove of some slight use to those who are studying Con stitutional History. H. St. C. F. Halliford House, Middlesex. October,

PREFACE.

TO THE SECOND EDITION IN complying with the demand made for a second edition of this little book, the author has taken all pains to correct the various defects in the first edition, which have been pointed out to him by the friendliness of critics. The present edition, besides undergoing complete revision, will be found to be considerably enlarged ; and it is hoped that the additions will be found to be of such a character as to materially improve the usefulness of the book. For the notice of any errors which may exist, or for any suggestions which may be offered, the author will be most grateful. The author's most sincere thanks are due to the many friends who have so kindly pointed out defects, and suggested improvements in the first edition, but most especially to the Rev. A. B. Beaven, M..<\., of Preston ; Mr. C. R. L. Fletcher, M.A., Fellow of All Souls ; Mr. T. Duncombe Mann, LL.B., Barrister at-Law ; and Mr. J. Wells, Fellow of Wadham. St. Moritz, Engadine, March, 1887.

PREFACE.

TO THE THIRD EDITION In response to the call for a reissue of the late Mr. Feilden's work, the present edition has been prepared, in the hope that after thorough revision its usefulness may be further increased. No alteration has been made in the arrangement of the book, but it seemed advisable to treat some of the subjects more fully than before. Chapter X and the greater part of Chapter IX have been rewritten, and considerable changes have been made in the earlier chapters. An attempt has been made to draw attention to the views of recent waiters on such questions as Folcland and the Gilds, while every endeavour has been made to ensure accuracy in the dates and references. The Editor wishes to express his thanks to Sir VV. Anson, Warden of All Souls College, for permis sion to make use of his Law and Custom of the Con stitution — a permission of which he has freely availed himself; and to Mr. G. N. Richardson, Lecturer in Modern History at Oriel and Pembroke Colleges, for his kindness in looking over the proof-sheets, and for many valuable suggestions. Leamington College. Dec. 1894.

Chapter I. The Crown

(pp- I—34). PAGES Origin of Kingship ........ I The Anglo-Saxon King ....... 1-2 Kingship becomes territorial ...... 2 Growth of the Treason Laws 3~7 The Succession to the Throne 7-J3 Deposition . . . !3 Royal Power and Prerogative ...... M_29 Anglo-Saxon and Norman Kings I4> J5 Plantagenets ........ I5-22 ' Lancastrians 22,23 New Monarchy ........ 23_25 Stuarts 25"28 Hanoverians ......... 2&i 29 Regencies ....-.-••» 29~32 Allegiance 32> 33 Bretwaldas ......••■■ 33 Queen Consort ......... 33 Queen Regnant

Chapter II

the crown and the courts (pp. 35—9 x)- FACES Origin of the King's Council ...... 35 Its history to Henry III ■ 35. 36 „ „ from Henry III to Henry VI ... 3K-38 Relations of the Council to Parliament . . . ■ 3^> 39 Powers of the Council 39~42 The Council from Henry VI . ... . . . 42_44 Powers of the Privy Council ...... 44> 45 Its Committees 45, 46 Privileges of Privy Councillors ...... 46 Ministerial Responsibility 46-48 The Cabinet 48-52 The Star Chamber ........ 52—55 The High Commission Court ...... 55 Court of Requests ........ 55, 56 Council of the North ........ 56 Council of Wales ......... 56 Court of Wards ......... 56 Court of Augmentation ....... 57 Courts of Law ......... 57-64 Curia Regis 57, 58 Exchequer 58, 59 Common Pleas ........ 57-61 King's Bench . . . . . . . . 61, 62 Chancery ......... 62, 63 Exchequer Chamber ....... 63, 64 Forest Courts ........ 64 Courts of the War Department .:.... 64, 65 Court of the Marshal and Constable .... 64 Court of the Admiralty ...... 65 Courts of the Household Department 65,66 Court of the Lord Steward ...... 65 Court of the Lord High Steward . . . . . 65, 66 Court of the Marshalsea ...... 66 The Palace Court 66 Courts of special jurisdiction ...... 66-6S Stannary Courts 6ft; 67 Courts of the Cinque Ports ...... 67 ,, ,, Counties Palatine ..... 67 Commissioners of Sewers . . . . 67, PACES Local Courts 6S-73 Shire Court ......... 6S-73 Hundred Moot 70, 71 Township Moot ........ 71 Sheriff's Toum . . . . . . . . 71,72 Manorial Courts ........ 72, 73 Private Jurisdiction ....... 73 Anglo-Saxon Police 73, 74 Compurgation ......... 74 Ordeal . . . 75, 76 Wager of Battle 76 Judicial Punishments ........ 77~8o Torture 80, 81 Benefit of Clergy 81,82 Sanctuary .......... 82 Trial by Jury 83-87 Assize of Novel Disseisin ....... 87 ,, Mort d'ancestor ....... 87 ,, Darrein Presentment ...... 87, 88 Relations between the Crown and the Courts . . . 88, 89 Appellate Jurisdiction.

S9, 90 Chief enactments relative to Justice and Police, up to 1307 . 90, 91

Chapter III. The Central Assembly

(pp. 91-161). The Witenagemot . . 92-94 The Great Council 94. 95 Parliament 95-161 Towers of Parliament ....... 96,97 Its summons, duration and dissolution .... 97~99 Relations between Crown and Parliament from 1295 . 99-102 Privilege of Parliament ....... 103-119 Common to both Houses i°3-H3 Special privileges of the Lords 113,114 Special privileges of the Commons .... 114-117 The enforcement of privilege 117-119 Collisions between Lords and Commons . . . 120,121 PAGES The House of Lords 1 21-128 Creation of Peers 122-124 Composition of the House 124-127 Functions of the Lords 127,128 The House of Commons ....... 128-147 Origin of I28 Growth of the representative principle . . . . 128-131 County Franchise I3I"I33 Borough Franchise ....... I33_I35 Composition of the House, Knights of the Shire and Burgesses j 135.

T36 Numbers of 136-13S Persons disqualified as members 13S-141 Oaths taken by members . . . . . • .141,142 Bribery of members 142, 143 Bribery at Elections i43> T44 Reform 144-146 The Ballot 146, 147 Tarty Government . . . . . . . 147-149 Coalition Ministries 149, 150 Impeachment . . . . . . . ... 150-157 Bill of Attainder 157.158 Important dates in parliamentary history .... 158, 159 Names of Parliaments ........ 159-161

Chapter IV. Legislation

(pp. 1 6 2- 1 74). Anglo-Saxon Legislation 162-164 Charters .......... 164 Assizes 164 Provisions .......... 165 Statutes founded on Petitions ...... 165, 166 Ordinances .......... 166, 167 Initiation of Legislation ....... 167, 168 Bills 16S, 169 Private Bills ify Legislative powers of the Crown 169-173 Proclamations ........ 169-171 The Dispensing power 171,172 The Suspending power 172,173 Chief legislative acts to 1 295 173,174

Chapter V

taxation and finance (pp. 175-202). PACES Ordinary Revenue of the Crown ...... 175-185 Crown Lands . . . . . . . . 175, 176 Civil List 176,177 Feudal and Miscellaneous revenues .... 177,178 Purveyance . . . . . . . . . 179-181 Coinage ......... 181-183 Forest revenues ........ 183-1S5 Taxation 185-193 Direct taxation ........ 187-190 Indirect taxation 1 90- 1 93 The Com Laws 193, 194 Assessment of taxes ........ 194-196 Local taxation 196, 197 The National Debt 197, 198 Illegal and arbitrary taxation ..... 198-202 Statutes limiting arbitrary taxation ..... 202

Chapter VI. The Land

(pp. 203-221). Land tenure before the Norman Conquest .... 203-205 Feudalism 205-209 Feudal tenure 209-211 Feudal incidents 211-213 Alienation of land 214 Entail 214-216 Divisions of the land 216-219 Counties Palatine , 2I9 Cinque Ports ......... 220 Stannaries . . . . . • ■ • • • TABLE OF CONTENTS.

Chapter VII

(pp. 222-259). THE people PAGES Athelings 2l2 Eorls 222 Thegns .......... 222, 223 Ceorls ........... 223 Thralls, Theows, or Slaves 223, 224 Laets ........... 224 The Baronage and the Crown, 1066-127 2 .... 224-226 Livery and Maintenance 226, 227 Villeins 227-229 The Poor Laws 229-232 Merchants 232-235 Aliens 235-237 Outlaws 237 Jews 237-239 Liberty of the Subject 239-243 Liberty of Opinion ........ 243, 244 Law of Libel ......... 245, 246 Presentation of Petitions . . ... . . 246,247 Political Agitation 247, 248 Official Ranks ......... 248-259 Ealdorman 248, 249 Sheriff . . 249-252 Itinerant Justices ........ 252-254 Conservators of the Peace . .' . . . . 254,255 Lord Lieutenant ........ 255 Justiciar 255 Lord High Chancellor . . . . . . . 255, 256 Lord High Treasurer 2156 Chancellor of the Exchequer 257 Lord Privy Seal 257 Secretaries of State ••■.... 257 Lord High Admiral 257, 258 Lord High Constable 258 Earl Marshal 258 Lord High Steward 258 Lord Chamberlain ........ 250 Lord High Almoner

Chapter VIII. The Towns

(pp. 260-271). PAGES The Towns before the Norman Conquest .... 260,261 The Towns after the Conquest ...... 261, 262 Gilds 262-265 The Towns, 1154-1265 265-268 Their later history 268-271

Chapter IX. The Church

(pp. 272-304). History to the Norman Conquest 272-274 Church and State, 1066-1529 274-285 The Reformation 285-289 Chief dates from James I 290-293 Ecclesiastical Courts . 293-296 Convocation 296-300 Tithes 3°o. 3°' Queen Anne's Bounty ........ 3°2 Summary of Chief Dates in Church History .... 302-304

Chapter X. The Defences Of The Realm

(pp. 305-322). (1) Military 3°5-3'9 Service by allegiance 3°5_3°9 Fyrd 3°5-3°7 Militia 3°7, 3°8 Volunteers 3°8, 3°9 Service by homage 3°9_3 1 ' Thegnhood 3°9 Feudal levy 3i°-3" b TABLE OF CONTENTS. PAGES Service by pay ........ 3II_3!5 Mercenaries ' . . ■ 3TI> 312 Commissions of Array ....-■ 3I2> 3T3 Standing Army 3*3-315 Martial Law 3*5-317 Impressment Z*T, 3r8 Chief dates in the history of the Army .... 318,319 (2) Naval 3!9-322 The mediaeval Navy ....... 319, 330 Work of Henry VIII 320 Stuart Navies 320, 321 Naval Discipline ........ 321 Impressment of Merchant Vessels ..... 321,322 Appendix A, containing a Summary of Important Constitutional Documents ....... 323-335 Appendix B, containing a Summary of the More Important Cases in Constitutional History ..... 336-341 LIST OF AUTHORITIES N.B. — In referring to the works which are marked with an asterisk, only the author's name and the volume have been quoted.

ANSON, *I.aw and Custom of the Constitution. 1892. Ashley, Economic History. Pt. I, 1888; Pt. II. 1893. Burrows, The Cinque Ports. 1888. Constitutional Essays. 1887. Cunningham, English Industry and Commerce. 1890. Dicey, Law of the Constitution. 1889. The Privy Council. 18S7. Dictionary of English History. 1889. Fasciculi Zizaniorum. Ed. Shirley. (Rolls Series. 'I FORSYTH, Trial by Jury. 1852. Freeman, William the Conqueror. (Twelve English Statesmen.) „ Historical Essays. 1892. Gardiner, History of England. 1603-1642. 1884. „ Great Civil War. 1886. Gneist, * English Constitutional History. 1886. Green, Conquest of England. 1883. Gross, The Gild Merchant. 1890. Hai.LAM, English Constitutional History. 1 886. Middle Ages. 1881. IfooK. Church Dictionary. 1871. Hore, History of the Church of England. 1893.

Lane-Poole. Wycliffe. 1889. (Epochs of Church History.) Loftie, London. (Historic Towns.) 1889. MADOX, Firma Burgi. 1726. Maitland, Select Pleas in Manorial Courts. i88y. (Selden Society.) ,. Justice and Police. 1885. (English Citizen Series.) May, Parliamentary Practice. 1893. ,, *Conslitutional History. 1882. LIST OF AUTHORITIES. XX Medley, English Constitutional History. 1894. Morley, Walpole. 1890. (Twelve English Statesmen.) Nicholas, Historic Peerage. 1857. Oman, Art of War in the Middle Ages. 1885. Perry, Student's Church History. 1881. Prothero, Statutes and Constitutional Documents. 1894. Ruding, Coinage of Great Britain. 1819. Selden, Titles of Honour. 1631. Stubbs, "English Constitutional History. 1878. ,, Select Charters. 1884. „ Early Plantagenet s. 1S81. (Epochs of Modem History.)

Taswell-Langmead, English Constitutional History. 1890. Traill, Central Government. 1892. (English Citizen Series.) Vinogradoff, Villainage in England. 1892. Wakeman, The Church and the Puritans, 1887. (Epochs of Church History.) Warburton, Edward III. 1876. (Epochs of Modern History.) Wharton, Law Lexicon. 1S83. Origin of English Kingship. Anglo-Saxon Kings. Increase of royal power. A SHORT CONSTITUTIONAL HISTORY OF ENGLAND

Chapter I. The Crown

Kingship in England was a product of the .\nglo-Saxon invasion : in their German homes, the Teutonic tribeshad been ruled by Ealdormen in times of peace, by Heretogan in times of war. The union of the peaceful functions of the former with the military functions of the latter formed the basis of English kingship. The advantages of the new institution guaranteed its permanency, and it was gradually adopted by all the invading tribes. The position of the early Anglo-Saxon King ' was entirely personal. He was the head of the race, not the lord of the land. He claimed descent from Woden, thus adding divine prestige to personal merit. His dignity was practically here ditary, for though in theory elective, the Crown always passed to a member of the royal house. The increase of the royal power is one of the main characteristics of the Anglo-Saxon period : the chief causes were — i. The close alliance between Church and State.

The former increased the King's influence by investing his office 1 The word king (cyning) is closely connected with kin. According to Prof. Max Midler the original meaning of cyning was father of a family. B It becomes territorial. Treason. with peculiar sanctity, and by preparing the way for political unity. 2. The creation of a nobility of service dependent on the Crown. 3. The struggle for supremacy between the Heptarchic kingdoms, ending in the victory of Wessex, and the acknow ledgement of her King as overlord of all England. 4. Increase of territory consequent on the acquisition of the South-West and the reconquest of the Danelaw. With the increase of the King's power came a change in his position. His relation to his subjects tended to become territorial owing to a. His increased control of the folkland (p. 204). b. The development of the Thegnhood (p. 222) into a powerful territorial nobility, resembling the later feudal baronage. c. Commendation; — a practice by which a freeman received protection from the King or a powerful lord on condition of doing suit and service in the latter's court. d. The conquest of the Danelaw.

The tie between the West-Saxon King and his Danish subjects was obviously not one of blood. He was not the head of their race, but the conqueror of their country and the lord of their land. In a word, the relation was territorial1. With increased power came an increase of territory and of revenue. The King assumed imperial titles *, exacted an oath of fealty from his subjects (943), and exercised an increasing influence over the Witan. The national peace became his peace, the national courts royal courts. The monarch was regarded as the source of justice, and ' offences against the law become offences against the King *.' The development of the royal power is marked by Alfred's 1 Const. Essays, 12. 2 Athelstan (925) styles himself Rex et Rector totius Brittaniae, and Edgar (959) Totius Albionis Imperator.

Edward the Confessor how ever reverts to the title Rex Anglorum, and Rex Angliae does not become the formal title of the King on the Great Seal until fohn 3 Stubbs, i. 183. Alfred's law. Edw. m law, 1352. Judicial con structions. Law os Treason (circa 890), which runs as follows : — " ' If any man plot against the King's life, of himself or by harbouring of exiles, or of his men, let him be liable in his life, and in all that he has V From now to the time of Edward III the law of treason remained undefined except by the arbitrary decisions of the judges. In 1352, however, Parliament asked for legislation on the subject, and the Statute of Treasons (25 Edw. Ill, st. 5, c. 2) was passed, limiting the offence to the following points: — 1. Compassing the death of the King, Queen, or their eldest son. 2.

Violating the Queen, the King's eldest unmarried daughter, or his eldest son's wife. 3. Laying war against the King in his realm, or adhering to his foes. 4. Counterfeiting his seal or money, or importing false money. 5. Slaying the Chancellor, Treasurer, or fudges in the discharge of their duty. The aim of the statute is personal. It regards an offender as a man who has broken faith with his lord, and its object is to protect the King, not the State, as embodied in the existing constitution *. In the law-courts its clauses were frequently strained to meet cases which did not fall within the letter of the Act. In order to protect the Government against rebellion, the judges held that a conspiracy to levy war against it, or an actual insurrection to alter the constitution or to repeal exist ing laws, was evidence of compassing the King's death.

It was on this ground that convictions were obtained in the following cases : — Norfolk (1572), who had intrigued to marry Elizabeth's rival, Mary Queen of Scots. Essex (1601), who gathered an armed force with the intention of removing his enemies from the royal council. 1 Sel. Charters, 62. 1 Anson, ii. 72. B The defatto King, 1495. Tudor legislation on Treason The Farley Wood malcontents (1663), who were concerting a rising against the Government '. Russell (1683): he seems to have merely agitated for a new Parliament. Harding (temp. William III), who had sent help to France, then at war with England. Damaree and Purchase case (1 7 10), in which the destruction of certain dissenting chapels was held to indicate a design to burn down all such places of worship, and thus to be equivalent to levying war against the King *.

(ii) Written and published words, importing and compassing the King's death, were held to be overt acts of treason ; and even unpublished writings libelling the Government, if followed by a rising, were classed as treasonable. Peacham (16 15) was convicted for writing a libellous sermon which was neither printed nor published 3. Williams (1621) was executed for prophesying the King's death. Algernon Sidney (1683) was condemned for writing a treatise asserting the responsibility of Kings to their subjects 4. In 1382, owing to the insurrection ofthe previous year, it was made treason to begin ariot; and in 1397, by 21 Ric. II, cc. 3, 4, the heads of treason were still further defined. An important statute passed in 2495 declared that treason could only be committed against a monarch who was King de facto not de jure.

The Tudor period saw numerous additions made to the treason laws. Their main objects were to enforce the policy ofthe Crown, to secure the succession, and to oppose the papal influence in England 5. Henry VIII used them as a weapon with which to terrify men into acquiescence with his will. In the twenty-sixth year of his reign (1534) it was declared treason to endeavour to retain possession of arms, ships, or fortresses, which belonged to the King, after a legal summons 1 Hallam, iii. 153. 2 Ibid. 15S. 3 Ibid. i. 343. 1 Ibid. ii. 458 3 Anson, ii. 72. to surrender, to attempt to injure, or to wish injury to, the Sovereign, or to call him a heretic, or to deny any of his titles ; and subsequent laws extended the penalties of treason to all who denied and afterwards to all who maintained the validity of the royal marriage with Anne Boleyn.

Many of these new treasons were abolished by i Ed. VI, c. 12 (1547), and though re-enacted by 5 & 6 Ed. VI, c. 11, were again removed from the statute-book by 1 Mar. st. 1, c. 1. By 3 & 4 Ed. VI, c. 5, assemblies of twelve or more persons' to discuss State affairs were declared treasonable. In 1554, the unpopularity of Maryrendered it necessary to declare praying for the Queen's death, or preaching against the title of the King (Philip of Spain) and Queen, and their issue, to be treasonable offences, 1 & 2 Phil, and Mar. cc. 9, 10. In 1559, by 1 Eliz. c. 5, it was made treason to deny the Queen's title ; in 1571 (13 Eliz. cc. 1, 2), to deny the power of the Queen and Parliament to limit the succession, or to call the Queen heretic, schismatic, or usurper, or to bring papal bulls into England ; in 1572, after the execution of the Duke of Norfolk (p. 3), the movements in favour of Mary Queen of Scots caused it to be declared treason to hold castles against the Queen, or to attempt to rescue prisoners (14 Eliz. cc. 1, 2).

In 1661 (13 Car. II, st. 1, c. 1), it was made treason to imagine any bodily injury lo the King; in 1702, to hinder, or attempt to hinder, the next in succession to the throne according to the Act of Settlement ; in 1707, to assert by writing, or printing, the right to the Crown of any other person than the next in succession according to the Act of Settlement, or to deny the power of the Sovereign and Parliament to limit the succession. in 1 715 the Riot Act gave the Government power to deal R'°' Act, with rioters as felons, and thus dispensed with the necessity for strained construction of the statute of Edward III ; and the Act of 1795, by making treasonable all attempts to intimidate 1795 Parliament, or force the Crown to change its ministers, gave statutory recognition to offences against the State which were not also offences against the King1. 1 Anson, ii. 72. .

Treason Felony Act, 1 1848. 1870. Procedure in trials for Treason Act of 1696. In 1848, the offences which had previously been regarded as high treason, with the exception of those actually committed against the Sovereign, were made treason felony, and so not necessarily punishable with death. In 1870 forfeitures for treason were abolished and the punishment reduced to hanging1. Before the close of the seventeenth century, trials for treason were most unfairly conducted. Previous to the reign of Edward VI only one witness was necessary to secure a con viction, and though the statute of r552 increased the number to two, it did nothing to remedy the hardship to which the accused was subject. He was first privately examined by the Privy Council, and when tried in public was called upon to answer at a moment's notice charges which had been prepared at leisure2.

His witnesses could not be sworn, no counsel might plead his case, and the Court took his guilt for granted. In fact it was extremely difficult to secure an acquittal ' unless the defence amounted to a positive proof of innocence V The Act of 1696 (7 &8 Will. Ill) put an end to this iniquitous system by allowing the prisoner to employ counsel, to compel the attendance of witnesses, and to receive a copy of the indictment five, and a panel of the jury two, days before the trial. It further provided that the two witnesses for the prosecution must both depose to acts relating to the same kind of treason4, and forbade the introduction during the trial of evidence which had not been specified in the indictment. No prosecution was to be commenced after three years from the commission of the offence, except for an attempt on the 1 ' Treason, therefore, as distinct from treason-felony, is the doing or designing anything which would lead to the death, bodily harm, or restraint of the King, levying war against him, adhering to his enemies, or otherwise doing acts which fall under the statute of Edward III.' Anson, ii. 73. 3 The Court sometimes adjourned to allow time for defence (e.g. in Stratford's case, 1641), but this practice was not usual. 3 Gardiner, History of England, 1603-42, i. 124. 4 e.g. a conviction could not be secured if one witness deposed to an act of imagining the King's death, and another to an act of adhering to his enemies.

King's life. Procedure was further regulated by i Anne, c. 9, which enacted that the Crown witnesses should be examined On oath ; and by 7 Anne, c. 2 1 , which provided the prisoner with a copy of their names ten days before his trial began. The Succession to the Throne. From the earliest times the power of the crown was subject to two checks ' : — 1. The increasing power of the nobles consequent on the acquisition of large estates with jurisdiction over the inhabitants (p. 73). 2. The elective character of the monarchy. The germ of the hereditary principle may be traced very Hereditary early in the fact that, while the Witan (p. 93) had the sole power of electing the Anglo-Saxon King, they almost invariably confined their choice to the royal family, and to the eldest male representative, if of full age and capacity *.

Ex ceptions, Canute, 1017; Harold, 1066. 'Every so-called irregularity in the West-Saxon Succession,' says Dr. Gneist 3, ' may be referred to testamentary disposition, to agreements respecting claims of inheritance, or to the personal incapacity of the person passed over.' The Norman Conquest gave a considerable impulse to The Here- 1 « i_ 1 rditaryand the hereditary principle. Arguing from the analogy ot the Eiecti. a feudal fief, men came to look on the crown as the property of the sovereign, and to apply to it those rules of succession which regulated the descent of ordinary estates. But the 1 The strength of these checks depended gTeatly on the personal character of the King. Notice the distinct decline in the royal power owing to the weakness of kings like Ethelred II and Edward the Con fessor. ' The nominee of the late king occasionally had the advantage, e.g. Harold, named by Edward the Confessor, on his death-bed.

Minors, as a rule, were not elected for practical reasons — the only instances being the two brothers, Edward the Martyr, (975), and Ethelred II, (979> — thus Ethelred I was chosen 866) in preference to his young nephew ; Alfred (871) was preferred to the sons of Ethelred; Athelstan, the illegitimate son of Edward the Elder, was chosen (925) before his legi timate brother ; Edred (946) before Edwy ; and Edward the Confessor (1042) before the son of Edmund Ironside.— See also Stubbs, Select Charters, 62. Cone. Legatin., Cap. xii. 3 Const. Hist. i. 39 note. aVnglo-Nor man Kings. Angevin Kings. Edward I, immediate descendants of the Conqueror were unable to plead an hereditary title, and thus the old elective theory, — almost the sole check on the despotism of the Norman Kings — was maintained in all its fullness.

William himself was careful to go through a form of election, and it was the vote of the central assembly, backed by the force at their disposal, which constituted the title of Rufus and Henry I. In his Charter of Liberties (uoo) the latter declares himself crowned ' communi consilio baronum totius regni Angliae1! The King made the barons swear fealty to his daughter Maud, thus hoping to secure the crown for her ; at his death however it fell to Stephen, who in his second charter says he is ' assensu cleri et populi in regem Anglorum eleclus2! He too failed to hand down the crown to his son, and was succeeded by Henry II, son of Maud. As William of New burgh says 3 : — haereditarium regnum suscepil conclamatus ab omnibus. At his death the crown passed to his eldest surviving son Richard, but the election of John (1199) in preference to his nephew Arthur shows that the hereditary principle was not yet established.

At his coronation the Archbishop, Hubert Walter, declared the elective character of the Kingship, stating that the King of England was chosen ab universitale regni after invoking the grace of the Holy Spirit 4. The idea that the succession was confined to the male line, which, in spite of the efforts made in favour of the Empress Maud, was a prevalent one, prevented Arthur's sister Eleanor from being named, and on John's death the succession of the youthful Henry III was secured by the admirable policy of the Earl of Pembroke, notwithstanding the bad government of the preceding reign.. At Henry's death, his son Edward was recognised as King by hereditary right, though owing to his absence abroad the ceremony of election and coronation could not be performed 1 Sel. Charters, 100. 2 Ibid. 120. 3 Ibid. 127. ' It must be mentioned, however, that the authority for this is a some what Suspicious passage in Matthew Paris. for nearly two years.