A knight of the 13th century, from the brass of Sir John D\'Abernon, died 1277, at Stoke Dabernon, Surrey
A knight of the 13th century, from the brass of Sir John D'Abernon, died 1277, at Stoke Dabernon, Surrey

Down to the time of King John the kings of England had all succeeded to the throne only after a form of election; it had never been recognised that there was any one with an indefeasible title to the succession. On John's death, when there was no other possible claimant of the blood royal, the boy Henry had been proclaimed as a matter of course by the loyalists; there being no other pretender except the French Dauphin. Thenceforth the hereditary title was assumed; though always with a reservation, not explicitly set forth, of the right of parliament to set aside the legitimist occupant or heir of the throne.

Edward himself was in Palestine when Henry III died, but the estates swore fealty without demur to the representatives whom he had appointed. Affairs went on so peaceably that Edward made no haste to return. He was at first detained by affairs in Gascony, and his relations with his cousin and suzerain, Philip III of France; and he did not land in England to take up the work of government till 1274.

The disturbances of Henry's reign had been due to the royal and papal exactions and to the favour shown by the king to aliens. The Opposition had attempted to find a remedy by setting excessive restrictions upon the power of the Crown, by transferring to a baronial oligarchy or a dictator powers fraught with danger unless wielded by men of the purest integrity and patriotism. From the baronial wars Edward had learnt two political lessons; first, that the strength of the Crown must lie in its accord with the feeling of the nation; and secondly, that it must not be subjected to the control of fortuitous baronial combinations.

Definition of Rights
The most irritating feature of Henry's government had been that it was unstable, capricious, and incalculable. Policy demanded that its methods should be systematic, recognisable, clearly defined. It was the object of the legislation to which Edward now set himself to make definite what had hitherto been indefinite, and thereby to remove sources of disputation; neither to create nor to abolish rights, but to arrive at and keep to a clear understanding and acknowledgment of rights which were entitled to recognition; whether of king, barons, clergy, or commons. This definition of rights ought to be arrived at not arbitrarily, but in such a fashion that the various parties con­cerned should share the responsibility for the conclusions accepted.

1275 Parliament
The process opened with the summoning in 1275 of a parliament in which the commons were represented. Of all the sources of friction none was more serious than that of taxation. The Great Charter had laid down the principle that while the Crown had a legal right to exact feudal dues it had no right to make additional exactions except by consent of the Great Council. But the dues which the Crown was entitled to exact were inadequately defined, and claims which Henry III asserted had been angrily resented. Moreover, there were other claims which in practice were undisputed because their opera­tion was limited and their effect as taxation was not realised. Such was the authority of the Crown to regulate trade, by the issue of licences and the im­position of port duties. The alien who wished to trade in England was only allowed to do so under supervision, and had to pay for a licence, and also to pay toll on the goods which he imported or exported. Magna Carta had merely stipulated in general terms that such tolls should be limited to the right and ancient customs.

Trade taxation
Edward's Statute of Westminster made progress in defining the feudal dues to which the king was entitled; but it also explicitly, conferred upon the king the right of imposing at the ports a fixed toll upon all the exported wool, wool-fells and leather, which very soon came to be known as the "great and ancient customs." The point especially noteworthy is that these port duties had not hitherto attracted notice as sources of revenue. It was the great expansion of foreign trade now setting in which impressed, first on the king and then on the parliament, a consciousness of the value to the royal treasury which such impositions might attain.

It is in this reign that taxes on imports and exports take their place beside the land tax, dating from the time of AEthelred, and the tax on movables dating from the Saladin tithe of Henry II, as sources of revenue important enough to demand popular control; whereas hitherto they had been merely an incidental part of the government machinery for regulating trade.

The Statute of Gloucester
The next step was concerned with a different subject. Various barons claimed and exercised various rights of jurisdiction locally, with exemption from interference on the part of the king's officers, and in effect superseding the royal authority. The Statute of Gloucester empowered the king's officers to examine, in virtue of the writ called Quo Warranto, the authority under which the barons claimed and exercised these privileges; on the hypothesis that the claims were null and void, unless supported by documentary proof that they had been conferred by royal grant.

As a matter of fact they had been established for the most part only by long custom, and the proceedings of the royal officers aroused among the barons an outburst of indignation so threatening that Edward found it necessary to withdraw the demand for documentary proof and to accept a compromise, under which all such rights were recognised as valid if they had been in practice recognised at the accession of Richard I.

Nevertheless the king's great object was secured; since it was thenceforth impossible for those "rights to be extended or multiplied except by express grant of the Crown. From the baronage Edward turned to the Church. Henry's subserviency to the popes, repaid by the support which he consistently received from them in his con­tests with the baronage, had allowed them to make great encroachments, to assert successfully their claims to make ecclesiastical appointments, and upon ecclesiastical revenues.

The Statute of Mortmain
In 1279 Pope Nicholas III ignored Edward's wishes, and appointed to the archbishopric of Canterbury the Franciscan friar John Peckham, who immediately set about asserting the ecclesiastical as against the secular authority in a highly aggressive manner. Edward's immediate answer was the Statute of Mortmain, which forbade the conveyance of land from private ownership to the "dead hand" of a corporation with­out the assent of the Crown.

The particular corporation which the king had in view was of course the Church; and the justification was twofold. For military purposes, that is, for the feudal levies, lands held by the Church were of less use to the Crown than lands held by lay feudatories. In the second place, lands held by a corporation were necessarily exempt from those incidental fees and fines to which individual owners were liable on succession to an estate and in connection with the wardship of minors, marriage, and knighthood. In practice, indeed, the new law made very little difference, beyond ensuring that the transfer of land to the Church should be open and bona fide; but, like the Statute of Gloucester, it empowered the Crown to limit the extension of an inconvenient practice.

Circumspecte Agatis
Two years later Peckham invited another collision by an attempt to extend the jurisdiction of the ecclesiastical courts, which was checked by the royal ordinance Circumspecte Agatis - a warning to the clergy to attempt no extension of their jurisdiction beyond the limits recognised by the secular authority, which were carefully defined.

This enactment had been deferred by the exigencies of the Welsh war to which we shall presently revert. It was issued in 1285, a year of considerable legislative activity. In that year the second Statute of West­minster established the principle of entailing estates by prohibiting the tenant from alienating land to the detriment of the rights of his heir.

Later the parliament sitting at Winchester reorganised the militia, the ancient fyrd which Henry II, had regulated by the Assize of Arms a hundred years before, and at the same time reorganised the system of local police or "watch and ward," and revived the authority and jurisdiction of the local popular courts of law.

The Third Statute of Westminster
The last statute of what we have called the legislative period was that of 1290, called Quia Emptores, or the third Statute of Westminster. This, like the Statute of Mortmain, was one which had the approval of the baronage and strengthened the landed interest; but it strengthened the Crown still more, since it was a check on feudal disintegration. It forbade subinfeudation; that is, it required that when land was alienated the new tenant should hold not from the grantor but from the grantor's overlord; so that the grantor multiplied not his own vassals but the vassals oi his overlord; whereby to the king as supreme overlord the maximum of advantage accrued.

This article is excerpted from the book, 'A History of the British Nation', by AD Innes, published in 1912 by TC & EC Jack, London. I picked up this delightful tome at a second-hand bookstore in Calgary, Canada, some years ago. Since it is now more than 70 years since Mr Innes's death in 1938, we are able to share the complete text of this book with Britain Express readers. Some of the author's point of view may not be currently accepted by modern historians, but it is worth reading as a period piece of British attitudes at the time of writing.

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