grew up without feeling the force of any local ties, and the younger sons, having no hope of succeeding to their fathers' estates, roamed at large. In 1204 the earls of Chester and Warenne and Leicester, in spite of their noble patrimony in England, and great lords of the Welsh marches like the Marshal and William of Briouze, had in all probability spent the greater part of their lives out of England. Hence the contrasts between the rare ineffective protests against royal exactions before 1204 on the part of a few bishops and earls-protests which have been made to play far too important a part in our constitutional history and the outburst of indignation which began in 1213.

1. This was especially true of the earl of Leicester, who succeeded his father in 1191, and was the son of Petronilla of Grandmesnil.

2. e.g., the protest of the bishop of Lincoln in 1198. Above, p. 319.

illam habeant omnibus diebus vite sue sine particia.” In the case of female succession the lands were, of course, divided. The chief instances are the division of the Giffard inheritance between the Marshal and Richard de Clare, earl of Hertford, in 1191 (Stapleton, II, cxxxviii, and John's confirmation in 1200, Rot. Chart., 47) and of the Trossebot inheritance in 1196 (Stapleton, II, lxxvii). In the former of these cases the Marshal received the Norman caput of the barony, and earl Richard the English. The other lands were divided between them. It is worthy of notice that after the separation of Normandy, the Marshal's son made a conditional grant of his Norman lands to his brother (Cart. Norm., no. 285; p. 43).

A curious case is mentioned in the Querimoniae Normannorum, no. 54. Nicholas Malesmains had, with royal consent, assigned his Norman and English lands to his two daughters respectively; after his death the bailiffs seized the Norman lands “pro custodia." John of Bruecort, whose son was betrothed to the heiress of the Norman property, bought the wardship, but before he had raised the money, the bailiffs seized the lands again, and afterwards only surrendered half, on the ground that the other half was held by the king as belonging to the heiress, who being in England had not made her peace with the king. This case is of special interest as relating to events which occurred some time after 1204. Nicholas Malesmains held some of the Tillières lands in England and Normandy. See below, p. 515.

At the same time, if the loss of Normandy led directly to the Great Charter, it also helped to establish the relation between the king and the common law which is a peculiarity of the medieval constitution of England. John was the first king of foreign stock to penetrate again and again into all parts of England and to leave his mark upon her local traditions. Under the guidance of his successors English law grew with a rapidity and comprehensiveness as no body of provincial custom could have done. The nation, united and self-contained, did not look beyond the king to any other source of justice. Their charter was interpreted in favour of the royal prerogative and of the authority of the courts. Process by royal writs continued to increase through the thirteenth century, and when the parliament threw up a barrier against this development, the king's council and the chancellor continued the work of the common law by providing equitable remedies for unforeseen abuses. It is curious to notice how powerless the barons and even the Commons were to direct the course of royal justice. The barons successfully withstood the influence of the canon law, but they could not check the royal courts. Parliament, with the help of the common lawyers, contrived to save cases of freehold from the encroachment of the council, but this was almost the limit of its success. 1 The judicial supremacy of the crown was undoubtedly one of the main factors in the development of the English constitution. If judicial immunities, privileges of peerage and independent corporations had flourished in England instead of existing, so far as they did exist, upon sufferance; if, in other words, the king and the king's court had not remained supreme in the interpretation of the law, it is very unlikely that the English people would, from the thirteenth century onwards, have gradually secured the right to make the law. The separation from Normandy was largely responsible for this development. Had England been, not an independent kingdom, but the

1. Baldwin, in the American Historical Review (1910), xv, 748-9.

province of a larger empire, it is more than probable that she would have sought to establish her liberties by means of immunities and privileges, of class distinctions and estates.

If the loss of Normandy was a gain to the cause of constitutionalism, it occurred too late to take away the most serious disadvantage which the connection between England and Normandy had involved. Had the separation between the two countries, which followed the death of the Conqueror, been a permanent one, it may reasonably be supposed that the complete conquest of Ireland and of the Scottish Lowlands would only have been a question of time. The absorption of Henry I and his successors in Norman affairs, and especially in the wars with the kings of France, distracted them from this natural sequel to the conquest of England. Before 1204 only a very inadequate attempt to combine the various communities of the British Isles had been made. After that date the task was too difficult. John's thoughts turned more than ever to the project; but the anarchy of his later years, and the prolonged continental difficulties of Henry III made progress impossible. Edward I and his successors had to choose between a remnant of the Angevin inheritance and Ireland. They chose the former and left the Irish question to posterity.

Still wider issues of the events described in these pages might be pursued by the philosophical historian. The contest between Philip and the sons of Henry II provoked some of Innocent III's most far-reaching utterances. The Pope drew a clear distinction between feudal law and the higher code of right and wrong. His letters contain one of the earliest applications of the law of nature by what was, in the Middle Ages, the nearest approach to an international tribunal.2 Philip, on his side, fastened upon

1. Edward I had also to choose between Ireland and Scotland.

2. Above, p. 125. See Figgis, l'rom Gerson to Grotius, pp. 4, 220. “As the greater part of this letter was embodied in the Decretal (II, i, 13) its principle became a part of the statute law of the Church.”

the papal admission that problems of secular law were beyond the cognisance of Rome. The assembly of Mantes, in which the bishops and barons of France asserted his right to disregard papal injunctions, was a turning point in the history of the French state. Or, again, the adventurous enquirer might try to estimate the importance of the conquest of Normandy in the history of private rights in international law. For the first time in the modern world one highly organised state had annexed another. In spite of his claims as a suzerain, who was unlawfully resisted by the Normans on behalf of a disinherited lord, Philip made no attempt at widespread confiscation. The Normans did not suffer as the English had suffered after 1066. Are we not at the beginning of all those conventions about rights of property, and municipal custom, which protect the vanquished even against the right of conquest? If so, the loss of Normandy helped to lay down precedents which might establish international custom during the transition from medieval to modern warfare. Or, again, one might raise that vague and elusive subject, the origin of England's claim to the narrow seas, and ask-not very profitably-whether John did or did not order foreign ships to lower their flag to his ships, and, if he did, whether it was before or after he ceased to rule both sides of the English Channel. But it is sufficient to remind ourselves that when the Normans became French they did a great deal more than bring their national epic to a close. They permitted the English once more to become a nation, and they established the French state for all time.

a

1. See Wheaton's International Law, part iv, ch. ii, § 346, and notes (eighth edition, p. 432 seqq). For later medieval literature upon this subject, see Walker, A History of the Law of Nations, vol. i (1899),

e.g., p. 230.

2. For John's alleged ordinance of March 30, 1201, see the Black Book of the Admiralty, I, xix, and Fulton, The Sovereignty of the Sea (1911),

pp. 39–43.

d