The freedom of elections was secured to the clergy; the former charter of the king was confirmed, by which the necessity of a royal conge' d'elire and confirmation was superseded: all check upon appeals to Rome was removed, by the allowance granted every man to depart the kingdom at pleasure: and the fines to be imposed on the clergy for any offence were ordained to be proportional to their lay estates, not to their ecclesiastical benefices.

The privileges granted to the barons were either abatements in the rigour of the feudal law, or determinations in points which had been left by that law, or had become, by practice, arbitrary and ambiguous. The reliefs of heirs succeeding to a military fee were ascertained; an earl's and baron's at a hundred marks, a knight's at a hundred shillings. It was ordained by the charter, that, if the heir be a minor, he shall immediately, upon his majority, enter upon his estate, without paying any relief: the king shall not sell his wardship: he shall levy only reasonable profits upon the estate, without committing waste, or hurting the property: he shall uphold the castles, houses, mills, parks, and ponds: and if he commit the guardianship of the estate to the sheriff or any other, he shall previously oblige them to find surety to the same purpose. During the minority of a baron, while his lands are in wardship, and are not in his own possession, no debt which he owes to the Jews shall bear any interest. Heirs shall be married without disparagement; and before the marriage be contracted, the nearest relations of the person shall be informed of it. A widow, without paying any relief, shall enter upon her dower, the third part of her husband's rents: she shall not be compelled to marry, so long as she chooses to continue single; she shall only give security never to marry without her lord's consent. The king shall not claim the wardship of any minor who hold lands by military tenure of a baron, on pretence that he also holds lands of the crown by soccage or any other tenure. Scutages shall be estimated at the same rate as in the time of Henry I.; and no scutage or aid, except in the three general feudal cases, the king's captivity, the knighting of his eldest son, and the marrying of his eldest daughter, shall be imposed but by the great council of the kingdom: the prelates, earls, and great barons, shall be called to this great council, each by a particular writ; the lesser barons by a general summons of the sheriff. The king shall not seize any baron's land for a debt to the crown, if the baron possesses as many goods and chattels as are sufficient to discharge the debt. No man shall be obliged to perform more service for his fee than he is bound to by his tenure. No governor or constable of a castle shall oblige any knight to give money for castle-guard, if the knight be willing to perform the service in person, or by another able-bodied man; and if the knight be in the field himself, by the king's command, he shall be exempted from all other service of this nature. No vassal shall be allowed to sell so much of his land as to incapacitate himself from performing his service to his lord.

These were the principal articles calculated for the interest of the barons; and had the charter contained nothing farther, national happiness and liberty had been very little promoted by it, as it would only have tended to increase the power and independence of an order of men who were already too powerful, and whose yoke might have become more heavy on the people than even that of an absolute monarch. But the barons, who alone drew and imposed on the prince this memorable charter, were necessitated to insert in it other clauses of a more extensive and more beneficent nature: they could not expect the concurrence of the people without comprehending, together with their own, the interests of inferior ranks of men; and all provisions which the barons, for their own sake, were obliged to make, in order to ensure the free and equitable administration of justice, tended directly to the benefit of the whole community. The following were the principal clauses of this nature.

It was ordained, that all the privileges and immunities above- mentioned, granted to the barons against the king, should be extended by the barons to their inferior vassals. The king bound himself not to grant any writ, empowering a baron to levy aids from his vassals, except in the three feudal cases. One weight and one measure shall be established throughout the kingdom. Merchants shall be allowed to transact all business, without being exposed to any arbitrary tolls and impositions; they and all freemen shall be allowed to go out of the kingdom and return to it at pleasure: London, and all cities and burghs, shall preserve their ancient liberties, immunities, and free customs: aids shall not be required of them but by the consent of the great council: no towns or individuals shall be obliged to make or support bridges but by ancient custom: the goods of every freeman shall be disposed of according to his will: if he die intestate, his heirs shall succeed to them. No officer of the crown shall take any horses, carts, or wood, without the consent of the owner. The king's courts of justice shall be stationary, and shall no longer follow his person: they shall be open to every one; and justice shall no longer be sold, refused, or delayed by them. Circuits shall be regularly held every year: the inferior tribunals of justice, the county court, sheriff's turn, and court leet, shall meet at their appointed time and place: the sheriffs shall be incapacitated to hold pleas of the crown, and shall not put any person upon his trial from rumour or suspicion alone, but upon the evidence of lawful witnesses. No freeman shall be taken or imprisoned, or dispossessed of his free tenement and liberties, or outlawed, or banished, or anywise hurt or injured, unless by the legal judgment of his peers, or by the law of the land; and all who suffered otherwise, in this or the two former reigns, shall be restored to their rights and possessions. Every freeman shall be fined in proportion to his fault; and no fine shall be levied on him to his utter ruin: even a villain or rustic shall not, by any fine, be bereaved of his carts, ploughs, and implements of husbandry. This was the only article calculated for the interests of this body of men, probably at that time the most numerous in the kingdom.

It must be confessed, that the former articles of the great charter contain such mitigations and explanations of the feudal law as are reasonable and equitable; and that the latter involve all the chief outlines of a legal government, and provide for the equal distribution of justice and free enjoyment of property; the great objects for which political society was at first founded by men, which the people have a perpetual and unalienable right to recall, and which no time, nor precedent, nor statute, nor positive institution, ought to deter them from keeping ever uppermost in their thoughts and attention. Though the provisions made by this charter might, conformably to the genius of the age, be esteemed too concise, and too bare of circumstances, to maintain the execution of its articles, in opposition to the chicanery of lawyers, supported by the violence of power; time gradually ascertained the sense of all the ambiguous expressions; and those generous barons who first extorted this concession still held their swords in their hands, and could turn them against those who dared, on any pretence, to depart from the original spirit and meaning of the grant. We may now, from the tenour of this charter, conjecture what those laws were of King Edward, which the English nation, during so many generations, still desired, with such an obstinate perseverance, to have recalled and established. They were chiefly these latter articles of MAGNA CHARTA; and the barons who, at the beginning of these commotions, demanded the revival of the Saxon laws, undoubtedly thought that they had sufficiently satisfied the people, by procuring them this concession, which comprehended the principal objects to which they had so long aspired. But what we are most to admire is, the prudence and moderation of those haughty nobles themselves, who were enraged by injuries, inflamed by opposition, and elated by a total victory over their sovereign. They were content, even in this plenitude of power, to depart from some articles of Henry I.'s charter, which they made the foundation of their demands, particularly from the abolition of wardships, a matter of the greatest importance; and they seem to have been sufficiently careful not to diminish too far the power and revenue of the crown. If they appear, therefore, to have carried other demands to too great a height, it can be ascribed only to the faithless and tyrannical character of the king himself, of which they had long had experience, and which, they foresaw, would, if they provided no farther security, lead him soon to infringe their new liberties, and revoke his own concessions. This alone gave birth to those other articles, seemingly exorbitant, which were added as a rampart for the safeguard of the great charter.

The barons obliged the king to agree that London should remain in their hands, and the Tower be consigned to the custody of the primate, till the fifteenth of August ensuing, or till the execution of the several articles of the great charter [l]. The better to ensure the same end, he allowed them to choose five-and-twenty members from their own body, as conservators of the public liberties; and no bounds were set to the authority of these men either in extent or duration. If any complaint were made of a violation of the charter, whether attempted by the king, justiciaries, sheriffs, or foresters, any four of these barons might admonish the king to redress the grievance: if satisfaction were not obtained, they could assemble the whole council of twenty-five, who, in conjunction with the great council, were empowered to compel him to observe the charter, and, in case of resistance, might levy war against him, attack his castles, and employ every kind of violence, except against his royal person, and that of his queen and children. All men throughout the kingdom were bound, under the penalty of confiscation, to swear obedience to the twenty- five barons; and the freeholders of each county were to choose twelve knights, who were to make report of such evil customs as required redress, conformably to the tenour of the great charter [m]. The names of those conservators were, the Earls of Clare, Albemarle, Gloucester, Winchester, Hereford, Roger Bigod, Earl of Norfolk, Robert de Vere, Earl of Oxford, William Mareschal the younger, Robert Fitz-Walter, Gilbert de Clare, Eustace de Vescey, Gilbert Delaval, William de Mowbray, Geoffrey de Say, Roger de Mombezon, William de Huntingfield, Robert de Ros, the constable of Chester, William de Aubenie, Richard de Perci, William Malet, John Fitz-Robert, William de Lanvalay, Hugh de Bigod, and Roger de Montfichet [n]. These men were, by this convention, really invested with the sovereignty of the kingdom: they were rendered co-ordinate with the king, or rather superior to him, in the exercise of the executive power: and as there was no circumstance of government which, either directly or indirectly, might not bear a relation to the security or observance of the great charter, there could scarcely occur any incident in which they might not lawfully interpose their authority. [FN [l] Rymer, vol. i. p. 201. Chron. Dunst vol. i. p. 73. [m] This seems a very strong proof that the House of Commons was not then in being; otherwise the knights and burgesses from the several counties could have given in to the Lords a list of grievances, without so unusual an election. [n] M. Paris, p. 181.]

John seemed to submit passively to all these regulations, however injurious to majesty: he sent writs to all the sheriffs, ordering them to constrain every one to swear obedience to the twenty-five barons [o]: he dismissed all his foreign forces: he pretended that his government was thenceforth to run in a new tenour, and be more indulgent to the liberty and independence of his people. But he only dissembled, till he should find a favourable opportunity for annulling all his concessions. The injuries and indignities which he had formerly suffered from the pope and the King of France, as they came from equals or superiors, seemed to make but small impression on him: but the sense of this perpetual and total subjection under his own rebellious vassals sunk deep in his mind, and he was determined, at all hazards, to throw off so ignominious a slavery [p]. He grew sullen, silent, and reserved: he shunned the society of his courtiers and nobles: he retired into the Isle of Wight, as if desirous of hiding his shame and confusion; but in this retreat he meditated the most fatal vengeance against all his enemies [q]. He secretly sent abroad his emissaries to enlist foreign soldiers, and to invite the rapacious Brabancons into his service, by the prospect of sharing the spoils of England, and reaping the forfeitures of so many opulent barons, who had incurred the guilt of rebellion by rising in arms against him [r]: and he despatched a messenger to Rome, in order to lay before the pope the great charter, which he had been compelled to sign, and to complain, before that tribunal, of the violence which had been imposed upon him [s]. [FN [o] Ibid. p. 182. [p] M. Paris, p. 183. [q] Ibid. [r] Ibid. Chron. Dunst. vol. i. p.72. Chron. Malr. p. 188. [s] M. Paris, p. 183. Chron. Dunst. vol. i. p. 73.]

Innocent, considering himself as feudal lord of the kingdom, was incensed at the temerity of the barons, who, though they pretended to appeal to his authority, had dared, without waiting for his consent, to impose such terms on a prince, who, by resigning to the Roman pontiff his crown and independence, had placed himself immediately under the papal protection. He issued, therefore, a bull, in which, from the plenitude of his apostolic power, and from the authority which God had committed to him, to build and destroy kingdoms, to plant and overthrow, he annulled and abrogated the whole charter, as unjust in itself, as obtained by compulsion, and as derogatory to the dignity of the apostolic see. He prohibited the barons from exacting the observance of it: he even prohibited the king himself from paying any regard to it: he absolved him and his subjects from all oaths which they had been constrained to take to that purpose: and he pronounced a general sentence of excommunication against every one who should persevere in maintaining such treasonable and iniquitous pretensions [t]. [FN [t] Rymer, vol. i. p. 203, 204, 205, 208. M. Paris, p. 184, 185, 187.]

[MN Renewal of the civil wars.] The king, as his foreign forces arrived along with this bull, now ventured to take off the mask; and, under sanction of the pope's decree, recalled all the liberties which he had granted to his subjects, and which he had solemnly sworn to observe. But the spiritual weapon was found, upon trial, to carry less force with it than he had reason from his own experience to apprehend. The primate refused to obey the pope in publishing the sentence of excommunication against the barons: and though he was cited to Rome, that he might attend a general council there assembled, and was suspended, on account of his disobedience to the pope, and his secret correspondence with the king's enemies [u]; though a new and particular sentence of excommunication was pronounced by name against the principal barons [w]; John still found, that his nobility and people, and even his clergy, adhered to the defence of their liberties, and to their combination against him: the sword of his foreign mercenaries was all he had to trust to for restoring his authority. [FN [u] M. Paris, p. 189. [w] Rymer, vol. i. p. 211. M. Paris, p. 192.]

The barons, after obtaining the great charter, seem to have been lulled into a fatal security, and to have taken no rational measures, in case of the introduction of a foreign force, for reassembling their armies. The king was, from the first, master of the field; and immediately laid siege to the castle of Rochester, which was obstinately defended by William de Aubenie, at the head of a hundred and forty knights with their retainers, but was at last reduced by famine. [MN 30th Nov.] John, irritated with the resistance, intended to have hanged the governor and all the garrison; but, on the representation of William de Mauleon, who suggested to him the danger of reprisals, he was content to sacrifice, in this barbarous manner, the inferior prisoners only [x]. The captivity of William de Aubenie, the best officer among the confederated barons, was an irreparable loss to their cause; and no regular opposition was thenceforth made to the progress of the royal arms. The ravenous and barbarous mercenaries, incited by a cruel and enraged prince, were let loose against the estates, tenants, manors, houses, parks of the barons, and spread devastation over the face of the kingdom. Nothing was to be seen but the flames of villages and castles reduced to ashes, the consternation and misery of the inhabitants, tortures exercised by the soldiery to make them reveal their concealed treasures, and reprisals no less barbarous committed by the barons and their partisans on the royal demesnes, and on the estates of such as still adhered to the crown. The king, marching through the whole extent of England, from Dover to Berwick, laid the provinces waste on each side of him; and considered every estate, which was not his immediate property, as entirely hostile, and the object of military execution. The nobility of the north, in particular, who had shown the greatest violence in the recovery of their liberties, and who, acting in a separate body, had expressed their discontent even at the concessions made by the great charter, as they could expect no mercy, fled before him with their wives and families, and purchased the friendship of Alexander, the young King of Scots, by doing homage to him. [FN [x] M. Paris, p. 187.]

[MN Prince Lewis called over.] The barons, reduced to this desperate extremity, and menaced with the total loss of their liberties, their properties, and their lives, employed a remedy no less desperate; and making applications to the court of France, they offered to acknowledge Lewis, the eldest son of Philip, for their sovereign, on condition that he would afford them protection from the violence of their enraged prince. Though the sense of the common rights of mankind, the only rights that are entirely indefeasible, might have justified them in the deposition of their king; they declined insisting, before Philip, on a pretension which is commonly so disagreeable to sovereigns, and which sounds harshly in the royal ears. They affirmed, that John was incapable of succeeding to the crown, by reason of the attainder passed upon him during his brother's reign; though that attainder had been reversed, and Richard. had even, by his last will, declared him his successor. They pretended that he was already legally deposed by sentence of the Peers of France, on account of the murder of his nephew; though that sentence could not possibly regard any thing but his transmarine dominions, which alone he held in vassalage to that crown. On more plausible grounds they affirmed, that he had already deposed himself by doing homage to the pope, changing the nature of his sovereignty, and resigning an independent crown for a fee under a foreign power. And as Blanche of Castile, the wife of Lewis, was descended by her mother from Henry II., they maintained, though many other princes stood before her in the order of succession, that they had not shaken off the royal family, in choosing her husband for their sovereign.

Philip was strongly tempted to lay hold on the rich prize which was offered to him. The legate menaced interdicts and excommunications, if he invaded the patrimony of St. Peter, or attacked a prince who was under the immediate protection of the holy see [y]: but as Philip was assured of the obedience of his own vassals, his principles were changed with the times, and he now undervalued as much all papal censures, as he formerly pretended to pay respect to them. His chief scruple was with regard to the fidelity which he might expect from the English barons in their new engagements, and the danger of intrusting his son and heir into the hands of men, who might, on any caprice or necessity, make peace with their native sovereign, by sacrificing a pledge of so much value. He therefore exacted from the barons twenty- five hostages of the most noble birth in the kingdom [z]; and having obtained this security, he sent over first a small army to the relief of the confederates; then more numerous forces, which arrived with Lewis himself at their head. [FN [y] M. Paris, p. 194. M. West. p. 275. [z] M. Paris, p. 193. Chron. Dunst. vol. i. p. 74.]

The first effect of the young prince's appearance in England was the desertion of John's foreign troops, who, being mostly levied in Flanders, and other provinces of France, refused to serve against the heir of their monarchy [a]. The Gascons and Poictevins alone, who were still John's subjects, adhered to his cause; but they were too weak to maintain that superiority in the field which they had hitherto supported against the confederated barons. Many considerable noblemen deserted John's party, the Earls of Salisbury, Arundel, Warrenne, Oxford, Albemarle, and William Mareschal the younger: his castles fell daily into the hands of the enemy; Dover was the only place which, from the valour and fidelity of Hubert de Burgh, the governor, made resistance to the progress of Lewis [b]: and the barons had the melancholy prospect of finally succeeding in their purpose, and of escaping the tyranny of their own king, by imposing on themselves and the nation a foreign yoke. But this union was of short duration between the French and English nobles: and the imprudence of Lewis, who, on every occasion, showed too visible a preference to the former, increased that jealousy which it was so natural for the latter to entertain in their present situation [c]. The Viscount of Melun, too, it is said, one of his courtiers, fell sick at London, and finding the approaches of death, he sent for some of his friends among the English barons, and warning them of their danger, revealed Lewis's secret intentions of exterminating them and their families as traitors to their prince, and of bestowing their estates and dignities on his native subjects, in whose fidelity he could more reasonably place confidence [d]: this story, whether true or false, was universally reported and believed; and concurring with other circumstances which rendered it credible, did great prejudice to the cause of Lewis. The Earl of Salisbury, and other noblemen, deserted again to John's party [e]; and as men easily change sides in a civil war, especially where their power is founded on an hereditary and independent authority, and is not derived from the opinion and favour of the people, the French prince had reason to dread a sudden reverse of fortune. The king was assembling a considerable army, with a view of fighting one great battle for his crown; but passing from Lynn to Lincolnshire, his road lay along the sea-shore, which was overflowed at high water; and not choosing the proper time for his journey, he lost in the inundation all his carriages, treasure, baggage, and regalia. The affliction for this disaster, and vexation from the distracted state of his affairs, increased the sickness under which he then laboured; and though he reached the castle of Newark, he was obliged to halt there, [MN 17th Oct. Death,] and his distemper soon after put an end to his life, in the forty-ninth year of his age, and eighteenth of his reign; and freed the nation from the dangers to which it was equally exposed by his success or by his misfortunes. [FN [a] M. Paris, p. 195. [b] M. Paris, p. 198. Chron. Dunst. vol. i. p. 75, 76. [c] W. Heming. p. 559. [d] M. Paris, p. 199. M. West. p. 277. [e] Chron. Dunst. vol. i. p. 76.]

[MN and character of the king.] The character of this prince is nothing but a complication of vices, equally mean and odious; ruinous to himself, and destructive to his people. Cowardice, inactivity, folly, levity, licentiousness, ingratitude, treachery, tyranny, and cruelty; all these qualities appear too evidently in the several incidents of his life, to give us room to suspect that the disagreeable picture has been anywise overcharged by the prejudices of the ancient historians. It is hard to say whether his conduct to his father, his brother, his nephew, or his subjects, was most culpable; or whether his crimes, in these respects, were not even exceeded by the baseness which appeared in his transactions with the King of France, the pope, and the barons. His European dominions, when they devolved to him by the death of his brother, were more extensive than have ever, since his time, been ruled by an English monarch; but he first lost, by his misconduct, the flourishing provinces in France, the ancient patrimony of his family: he subjected his kingdom to a shameful vassalage under the see of Rome: he saw the prerogatives of his crown diminished by law, and still more reduced by faction: and he died at last, when in danger of being totally expelled by a foreign power, and of either ending his life miserably in prison, or seeking shelter, as a fugitive, from the pursuit of his enemies.

The prejudices against this prince were so violent, that he was believed to have sent an embassy to the Miramoulin, or Emperor of Morocco, and to have offered to change his religion and become Mahometan, in order to purchase the protection of that monarch. But though this story is told us, on plausible authority, by Matthew Paris [f], it is in itself utterly improbable; except that there is nothing so incredible but may be believed to proceed from the folly and wickedness of John. [FN [f] P. 169.]

The monks throw great reproaches on this prince for his impiety and even infidelity; and as an instance of it, they tell us, that having one day caught a very fat stag, he exclaimed, HOW PLUMP AND WELL FED IS THIS ANIMAL! AND YET, I DARE SWEAR, HE NEVER HEARD MASS [g]. This sally of wit upon the usual corpulency of the priests, more than all his enormous crimes and iniquities, made him pass with them for an atheist.

John left two legitimate sons behind him; Henry, born on the first of October, 1207, and now nine years of age; and Richard, born on the sixth of January, 1209; and three daughters; Jane, afterwards married to Alexander King of Scots; Eleanor, married first to William Mareschal the younger, Earl of Pembroke, and then to Simon Mountfort, Earl of Leicester; and Isabella, married to the Emperor Frederic II. All these children were born to him by Isabella of Angoulesme, his second wife. His illegitimate children were numerous, but none of them were anywise distinguished.

It was this king who, in the ninth year of his reign, first gave by charter, to the city of London, the right of electing, annually, a mayor out of its own body, an office which was till now held for life. He gave the city also power to elect and remove its sheriffs at pleasure, and its common-councilmen annually. London-bridge was finished in this reign. The former bridge was of wood. Maud, the empress, was the first that built a stone bridge in England. [FN [g] M. Paris, p. 170.]



APPENDIX II.

THE FEUDAL AND ANGLO-NORMAN GOVERNMENT AND MANNERS.

ORIGIN OF THE FEUDAL LAW.—ITS PROGRESS.—FEUDAL GOVERNMENT OF ENGLAND.—THE FEUDAL PARLIAMENT.—THE COMMONS.—JUDICAL POWER.— REVENUE OF THE CROWN.—COMMERCE.—THE CHURCH.—CIVIL LAWS.—MANNERS.



The feudal law is the chief foundation, both of the political government and of the jurisprudence established by the Normans in England. Our subject therefore requires, that we should form a just idea of this law, in order to explain the state, as well of that kingdom, as of all other kingdoms of Europe, which, during those ages, were governed by similar institutions. And though I am sensible, that I must here repeat many observations and reflections which have been communicated by others [a]; yet, as every book, agreeably to the observation of a great historian [b], should be as complete as possible within itself, and should never refer, for any thing material, to other books, it will be necessary, in this place, to deliver a short plan of that prodigious fabric, which, for several centuries, preserved such a mixture of liberty and oppression, order and anarchy, stability and revolution, as was never experienced in any other age, or any other part of the world. [FN [a] L'Esprit des Loix. Dr. Robertson's History of Scotland. [b] Padre Paolo, Hist. Conc. Trid.]

[MN Origin of the feudal law.] After the northern nations had subdued the provinces of the Roman empire, they were obliged to establish a system of government which might secure their conquests, as well against the revolt of their numerous subjects, who remained in the provinces, as from the inroads of other tribes, who might be tempted to ravish from them their new acquisitions. The great change of circumstances made them here depart from those institutions which prevailed among them while they remained in the forests of Germany; yet it was still natural for them to retain, in their present settlement, as much of their ancient customs as was compatible with their new situation.

The German governments, being more a confederacy of independent warriors than a civil subjection, derived their principal force from many inferior and voluntary associations, which individuals formed under a particular head or chieftain, and which it became the highest point of honour to maintain with inviolable fidelity. The glory of the chief consisted in the number, the bravery, and the zealous attachment of his retainers: the duty of the retainers required, that they should accompany their chief in all wars and dangers, that they should fight and perish by his side, and that they should esteem his renown or his favour a sufficient recompense for all their services [c]. The prince himself was nothing but a great chieftain, who was chosen from among the rest on account of his superior valour or nobility; and who derived his power from the voluntary association or attachment of the other chieftains. [FN [c] Tacit. de Mor. Germ.]

When a tribe, governed by these ideas, and actuated by these principles, subdued a large territory, they found, that though it was necessary to keep themselves in a military posture, they could neither remain united in a body, nor take up their quarters in several garrisons, and that their manners and institutions debarred them from using these expedients; the obvious ones, which, in a like situation, would have been employed by a more civilized nation. Their ignorance in the art of finances, and perhaps the devastations inseparable from such violent conquests, rendered it impracticable for them to levy taxes sufficient for the pay of numerous armies; and their repugnance to subordination, with their attachment to rural pleasures, made the life of the camp or garrison, if perpetuated during peaceful times, extremely odious and disgustful to them. They seized, therefore, such a portion of the conquered lands as appeared necessary; they assigned a share for supporting the dignity of their prince and government; they distributed other parts, under the title of fiefs, to the chiefs; these made a new partition among their retainers: the express condition of all these grants was, that they might be resumed at pleasure, and that the possessor, so long as he enjoyed them, should still remain in readiness to take the field for the defence of the nation. And though the conquerors immediately separated, in order to enjoy their new acquisitions, their martial disposition made them readily fulfil the terms of their engagement: they assembled on the first alarm; their habitual attachment to the chieftain made them willingly submit to his command; and thus a regular military force, though concealed, was always ready to defend, on any emergence, the interest and honour of the community.

We are not to imagine that all the conquered lands were seized by the northern conquerors; or that the whole of the land thus seized was subjected to those military services. This supposition is confuted by the history of all the nations on the continent. Even the idea given us of the German manners by the Roman historian may convince us, that that bold people would never have been content with so precarious a subsistence, or have fought to procure establishments which were only to continue during the good pleasure of their sovereign. Though the northern chieftains accepted of lands, which, being considered as a kind of military pay, might be resumed at the will of the king or general; they also took possession of estates, which being hereditary and independent, enabled them to maintain their native liberty, and support, without court favour, the honour of their rank and family.

[MN Progress of the feudal law.] But there is a great difference, in the consequences, between the distribution of a pecuniary subsistence, and the assignment of lands burdened with the condition of military service. The delivery of the former, at the weekly, monthly, or annual terms of payment, still recalls the idea of a voluntary gratuity from the prince, and reminds the soldier of the precarious tenure by which he holds his commission. But the attachment naturally formed with a fixed portion of land gradually begets the idea of something like property, and makes the possessor forget his dependent situation, and the condition which was at first annexed to the grant. It seemed equitable that one who had cultivated and sowed a field should reap the harvest: hence fiefs, which were at first entirely precarious, were soon made annual. A man who had employed his money in building, planting, or other improvements, expected to reap the fruits of his labour or expense: hence they were next granted during a term of years. It would be thought hard to expel a man from his possessions, who had always done his duty, and performed the conditions on which he originally received them: hence the chieftains, in a subsequent period, thought themselves entitled to demand the enjoyment of their feudal lands during life. It was found that a man would more willingly expose himself in battle, if assured that his family should inherit his possessions, and should not be left by his death in want and poverty: hence fiefs were made hereditary in families, and descended, during one age, to the son, then to the grandson, next to the brothers, and afterwards to more distant relations [d]. The idea of property stole in gradually upon that of military pay; and each century made some sensible addition to the stability of fiefs and tenures. [FN [d] Lib. Feud. lib. I. tit. 1.]

In all these successive acquisitions, the chief was supported by his vassals; who, having originally a strong connexion with him, augmented by the constant intercourse of good offices, and by the friendship arising from vicinity and dependence, were inclined to follow their leader against all his enemies, and voluntarily, in his private quarrels, paid him the same obedience, to which, by their tenure, they were bound in foreign wars. While he daily advanced new pretensions to secure the possession of his superior fief, they expected to find the same advantage, in acquiring stability to their subordinate ones; and they zealously opposed the intrusion of a new lord, who would be inclined, as he was fully entitled, to bestow the possession of their lands on his own favourites and retainers. Thus the authority of the sovereign gradually decayed; and each noble, fortified in his own territory by the attachment of his vassals, became too powerful to be expelled by an order from the throne; and he secured by law what he had at first acquired by usurpation.

During this precarious state of the supreme power, a difference would immediately be experienced between those portions of territory which were subjected to the feudal tenures, and those which were possessed by an allodial or free title. Though the latter possessions had at first been esteemed much preferable, they were soon found, by the progressive changes introduced into public and private law, to be of an inferior condition to the former. The possessors of a feudal territory, united by a regular subordination under one chief, and by the mutual attachments of the vassals, had the same advantages over the proprietors of the other, that a disciplined army enjoys over a dispersed multitude; and were enabled to commit with impunity all injuries on their defenceless neighbours. Every one, therefore, hastened to seek that protection which he found so necessary; and each allodial proprietor, resigning his possessions into the hands of the king, or of some nobleman respected for power or valour, received them back with the condition of feudal services [e], which, though a burden somewhat grievous, brought him ample compensation, by connecting him with the neighbouring proprietors, and placing him under the guardianship of a potent chieftain. The decay of the political government thus necessarily occasioned the extension of the feudal: the kingdoms of Europe were universally divided into baronies, and these into inferior fiefs: and the attachment of vassals to their chief, which was at first an essential part of the German manners, was still supported by the same causes from which it at first arose; the necessity of mutual protection, and the continued intercourse between the head and the members, of benefits and services. [FN [e] Marculf. Form. 47. apud Lindenbr. p. 1238.]

But there was another circumstance which corroborated these feudal dependencies, and tended to connect the vassals with their superior lord by an indissoluble bond of union. The northern conquerors, as well as the more early Greeks and Romans, embraced a policy which is unavoidable to all nations that have made slender advances in refinement: they every where united the civil jurisdiction with the military power. Law, in its commencement, was not an intricate science, and was more governed by maxims of equity, which seem obvious to common sense, than by numerous and subtle principles, applied to a variety of cases by profound reasonings from analogy. An officer, though he had passed his life in the field, was able to determine all legal controversies which could occur within the district committed to his charge; and his decisions were the most likely to meet with a prompt and ready obedience, from men who respected his person, and were accustomed to act under his command. The profit arising from punishments, which were then chiefly pecuniary, was another reason for his desiring to retain the judicial power; and when his fief became hereditary, this authority, which was essential to it, was also transmitted to his posterity. The counts and other magistrates, whose power was merely official, were tempted, in imitation of the feudal lords, whom they resembled in so many particulars, to render their dignity perpetual and hereditary; and in the decline of the regal power, they found no difficulty in making good their pretensions. After this manner, the vast fabric of feudal subordination became quite solid and comprehensive; it formed every where an essential part of the political constitution; and the Norman and other barons, who followed the fortunes of William, were so accustomed to it that they could scarcely form an idea of any other species of civil government [f]. [FN [f] The ideas of the feudal government were so rooted, that even lawyers, in those ages, could not form a notion of any other Constitution REGNUM (says Bracton, lib. 2. cap. 34.) QUOD EX COMITATIBUS ET BARONIBUS DICITUR ESSE CONSTITUTUM.]

The Saxons who conquered England, as they exterminated the ancient inhabitants, and thought themselves secured by the sea against new invaders, found it less requisite to maintain themselves in a military posture: the quantity of land which they annexed to offices seems to have been of small value; and for that reason continued the longer in its original situation, and was always possessed during pleasure by those who were intrusted with the command. These conditions were too precarious to satisfy the Norman barons, who enjoyed more independent possessions and jurisdictions in their own country; and William was obliged, in the new distribution of land, to copy the tenures which were now become universal on the continent. England of a sudden became a feudal kingdom [g]; and received all the advantages, and was exposed to all the inconveniences, incident to that species of civil polity. [FN [g] Coke, Comm. on Lit. p. 1, 2. ad sect. 1.]

[MN The feudal government of England.] According to the principles of the feudal law, the king was the supreme lord of the landed property: all possessors, who enjoyed the fruits or revenue of any part of it, held those privileges, either mediately or immediately, of him; and their property was conceived to be in some degree conditional [h]. The land was still apprehended to be a species of BENEFICE, which was the original conception of a feudal property; and the vassal owed, in return for it, stated services to his baron, as the baron himself did for his land to the crown. The vassal was obliged to defend his baron in war; and the baron, at the head of his vassals, was bound to fight in defence of the king and kingdom. But besides these military services, which were casual, there were others imposed of a civil nature, which were more constant and durable. [FN [h] Somner of Gavelk. p. 109. Smith de Rep. lib. 3. cap. 10.]

The northern nations had no idea that any man, trained up to honour, and inured to arms, was ever to be governed, without his own consent, by the absolute will of another; or that the administration of justice was ever to be exercised by the private opinion of any one magistrate, without the concurrence of some other persons, whose interest might induce them to check his arbitrary and iniquitous decisions. The king, therefore, when he found it necessary to demand any service of his barons or chief tenants, beyond what was due by their tenures, was obliged to assemble them in order to obtain their CONSENT: and when it was necessary to determine any controversy which might arise among the barons themselves, the question must be discussed in their presence, and be decided according to their opinion or ADVICE. In these two circumstances of consent and advice consisted chiefly the civil services of the ancient barons; and these implied all the considerable incidents of government. In one view, the barons regarded this attendance as their principal PRIVILEGE; in another, as a grievous BURDEN. That no momentous affairs could be transacted without their consent and advice was in GENERAL esteemed the great security of their possessions and dignities: but as they reaped no immediate profit from their attendance at court, and were exposed to great inconvenience and charge by an absence from their own estates, every one was glad to exempt himself from each PARTICULAR exertion of this power; and was pleased both that the call for that duty should seldom return upon him, and that others should undergo the burden in his stead. The king, on the other hand, was usually anxious, for several reasons, that the assembly of the barons should be full at every stated or casual meeting: this attendance was the chief badge of their subordination to his crown, and drew them from that independence which they were apt to affect in their own castles and manors; and where the meeting was thin or ill attended, its determinations had less authority, and commanded not so ready an obedience from the whole community.

The case was the same with the barons in their courts, as with the king in the supreme council of the nation. It was requisite to assemble the vassals, in order to determine by their vote any question which regarded the barony; and they sat along with the chief in all trials, whether civil or criminal, which occurred within the limits of their jurisdiction. They were bound to pay suit and service at the court of their baron: and as their tenure was military, and consequently honourable, they were admitted into his society, and partook of his friendship. Thus, a kingdom was considered only as a great barony, and a barony as a small kingdom. The barons were peers to each other in the national council, and, in some degree, companions to the king: the vassals were peers to each other in the court of barony, and companions to their baron [i]. [FN [i] Du Cange, Gloss. in verb. PAR Cujac. Commun. in Lib. Feud. lib. I. tit. p. 18. Spellm. Gloss. in verb.]

But though this resemblance so far took place, the vassals, by the natural course of things, universally, in the feudal constitutions, fell into a greater subordination under the baron, than the baron himself under his sovereign; and these governments had a necessary and infallible tendency to augment the power of the nobles. The great chief, residing in his country-seat, which he was commonly allowed to fortify, lost, in a great measure, his connexion or acquaintance with the prince; and added every day new force to his authority over the vassals of the barony. They received from him education in all military exercises: his hospitality invited them to live and enjoy society in his hall: their leisure, which was great, made them perpetual retainers on his person, and partakers of his country sports and amusements: they had no means of gratifying their ambition but by making a figure in his train: his favour and countenance was their greatest honour: his displeasure exposed them to contempt and ignominy: and they felt every moment the necessity of his protection, both in the controversies which occurred with other vassals, and, what was more material, in the daily inroads and injuries which were committed by the neighbouring barons. During the time of general war, the sovereign, who marched at the head of his armies, and was the great protector of the state, always acquired some accession to his authority, which he lost during the intervals of peace and tranquillity: but the loose police, incident to the feudal constitutions, maintained a perpetual, though secret hostility, between the several members of the state; and the vassals found no means of securing themselves against the injuries to which they were continually exposed, but by closely adhering to their chief, and falling into a submissive dependence upon him.

If the feudal government was so little favourable to the true liberty even of the military vassal, it was still more destructive of the independence and security of the other members of the state, or what, in a proper sense, we call the people. A great part of them were SERFS, and lived in a state of absolute slavery or villanage: the other inhabitants of the country paid their rents in services, which were in a great measure arbitrary; and they could expect no redress of injuries, in a court of barony, from men who thought they had a right to oppress and tyrannize over them. The towns were situated either within the demesnes of the king, or the lands of the great barons, and were almost entirely subjected to the absolute will of their master. The languishing state of commerce kept the inhabitants poor and contemptible; and the political institutions were calculated to render that poverty perpetual. The barons and gentry, living in rustic plenty and hospitality, gave no encouragement to the arts, and had no demand for any of the more elaborate manufactures: every profession was held in contempt but that of arms: and if any merchant or manufacturer rose by industry and frugality to a degree of opulence, he found himself but the more exposed to injuries, from the envy and avidity of the military nobles.

These concurring causes gave the feudal governments so strong a bias towards aristocracy, that the royal authority was extremely eclipsed in all the European states; and, instead of dreading the growth of monarchical power, we might rather expect, that the community would every where crumble into so many independent baronies, and lose the political union by which they were cemented. In elective monarchies, the event was commonly answerable to this expectation; and the barons, gaining ground on every vacancy of the throne, raised themselves almost to a state of sovereignty, and sacrificed to their power both the rights of the crown and the liberties of the people. But hereditary monarchies had a principle of authority which was not so easily subverted; and there were several causes which still maintained a degree of influence in the hands of the sovereign.

The greatest baron could never lose view entirely of those principles of the feudal constitution which bound him, as a vassal, to submission and fealty towards his prince; because he was every moment obliged to have recourse to those principles, in exacting fealty and submission from his own vassals. The lesser barons, finding that the annihilation of royal authority left them exposed, without protection, to the insults and injuries of more potent neighbours, naturally adhered to the crown, and promoted the execution of general and equal laws. The people had still a stronger interest to desire the grandeur of the sovereign; and the king, being the legal magistrate, who suffered by every internal convulsion or oppression, and who regarded the great nobles as his immediate rivals, assumed the salutary office of general guardian or protector of the Commons. Besides the prerogatives with which the law invested him, his large demesnes and numerous retainers rendered him, in one sense, the greatest baron in his kingdom; and where he was possessed of personal vigour and abilities, (for his situation required these advantages,) he was commonly able to preserve his authority, and maintain his station as head of the community, and the chief fountain of law and justice.

The first kings of the Norman race were favoured by another circumstance, which preserved them from the encroachments of their barons. They were generals of a conquering army, which was obliged to continue in a military posture, and to maintain great subordination under their leader, in order to secure themselves from the revolt of the numerous natives, whom they had bereaved of all their properties and privileges. But though this circumstance supported the authority of William and his immediate successors, and rendered them extremely absolute, it was lost as soon as the Norman barons began to incorporate with the nation, to acquire a security in their possessions, and to fix their influence over their vassals, tenants, and slaves: and the immense fortunes which the Conqueror had bestowed on his chief captains served to support their independence, and make them formidable to their sovereign.

He gave, for instance, to Hugh de Abrincis, his sister's son, the whole county of Chester, which he erected into a palatinate, and rendered by his grant almost independent of the crown [k]. Robert, Earl of Mortaigne, had 973 manors and lordships: Allan, Earl of Britany and Richmond, 442: Odo, Bishop of Baieux, 439 [l]: Geoffrey, Bishop of Coutance, 280 [m]: Walter Giffard, Earl of Buckingham, 107: William, Earl Warrenne, 298, besides 28 towns or hamlets in Yorkshire: Todenei, 81: Roger Bigod, 123: Robert, Earl of Eu, 119: Roger Mortimer, 132, besides several hamlets: Robert de Stafford, 130: Walter de Eurus, Earl of Salisbury, 46: Geoffrey de Mandeville, 118: Richard de Clare, 171: Hugh de Beauchamp, 47: Baldwin de Ridvers, 164: Henry de Ferrars, 222: William de Percy, 119 [n]: Norman d'Arcy, 33 [o]. Sir Henry Spellman computes, that, in the large county of Norfolk, there were not, in the Conqueror's time, above sixty-six proprietors of land [p]. Men, possessed of such princely revenues and jurisdictions, could not long be retained in the rank of subjects. The great Earl Warrenne, in a subsequent reign, when he was questioned concerning his right to the lands which he possessed, drew his sword, which he produced as his title; adding, that William the Bastard did not conquer the kingdom himself; but that the barons, and his ancestor among the rest, were joint adventurers in the enterprise [q]. [FN [k] Camd. in Chesh. Spellm. Gloss. in verb. COMES PALATINUS. [l] Brady's Hist. p. 198, 200. [m] Order. Vital. [n] Dugdale's Baronage, from Doomsday Book, vol. i. p. 60, 74; iii. 112, 132, 136, 138, 156, 174, 200, 207, 223, 254, 257, 269. [o] Ibid. p. 369. It is remarkable, that this family of d'Arcy seems to be the only male descendants of any of the Conqueror's barons now remaining among the Peers. Lord Holdernesse is the heir of that family. [p] Spellm. Gloss. in verb. DOMESDAY. [q] Dugd. Bar. vol. i. p. 79. Ibid. Origines Juridicales, p. 13.]

[MN The feudal Parliament.] The supreme legislative power of England was lodged in the king and great council, or what was afterwards called the Parliament. It is not doubted but the archbishops, bishops, and most considerable abbots, were constituent members of this council. They sat by a double title: by prescription, as having always possessed that privilege, through the whole Saxon period, from the first establishment of Christianity; and by their right of baronage, as holding of the king IN CAPITE, by military service. These two titles of the prelates were never accurately distinguished. When the usurpations of the church had risen to such a height as to make the bishops affect a separate dominion, and regard their seat in Parliament as a degradation of their episcopal dignity; the king insisted, that they were barons, and, on that account, obliged, by the general principles of the feudal law, to attend on him in his great councils [r]. Yet there still remained some practices, which supposed their title to be derived merely from ancient possession. When a bishop was elected, he sat in Parliament before the king had made him restitution of his temporalities; and during the vacancy of a see, the guardian of the spiritualities was summoned to attend along with the bishops. [FN [r] Spellm. Gloss. In verb. BARO.]

The barons were another constituent part of the great council of the nation. These held immediately of the crown by a military tenure: they were the most honourable members of the state, and had a RIGHT to be consulted in all public deliberations: they were the immediate vassals of the crown, and owed as a SERVICE their attendance in the court of their supreme lord. A resolution taken without their consent was likely to be but ill executed; and no determination of any cause or controversy among them had any validity, where the vote and advice of the body did not concur. The dignity of earl or count was official and territorial, as well as hereditary; and as all the earls were also barons, they were considered as military vassals of the crown, were admitted in that capacity into the general council, and formed the most honourable and powerful branch of it.

But there was another class of the immediate military tenants of the crown, no less, or probably more numerous than the barons, the tenants IN CAPITE by knights' service; and these, however inferior in power or property, held by a tenure which was equally honourable with that of the others. A barony was commonly composed of several knights' fees; and though the number seems not to have been exactly defined, seldom consisted of less than fifty hides of land [s]: but where a man held of the king only one or two knights' fees, he was still an immediate vassal of the crown, and as such had a title to have a seat in the general councils. But as this attendance was usually esteemed a burden, and one too great for a man of slender fortune to bear constantly, it is probable that, though he had a title, if he pleased, to be admitted, he was not obliged, by any penalty, like the barons, to pay a regular attendance. All the immediate military tenants of the crown amounted not fully to 700, when Doomsday Book was framed; and as the members were well pleased, on any pretext, to excuse themselves from attendance, the assembly was never likely to become too numerous for the despatch of public business. [FN [s] Four hides made one knight's fee: the relief of a barony was twelve times greater than that of a knight's fee; whence we may conjecture its usual value. Spellm. Gloss. in verb. FEODUM. There were 243,600 hides in England, and 60,215 knights' fees; whence it is evident, that there were a little more than four hides in each knight's fee.]

[MN The Commons.] So far the nature of a general council, or ancient Parliament, is determined, without any doubt or controversy. The only question seems to be with regard to the Commons, or the representatives of counties and boroughs, whether they were also, in more early times, constituent parts of Parliament? This question was once disputed in England with great acrimony; but such is the force of time and evidence, that they can sometimes prevail, even over faction; and the question seems by general consent, and even by their own, to be at last determined against the ruling party. It is agreed, that the Commons were no part of the great council, till some ages after the Conquest; and that the military tenants alone of the crown composed that supreme and legislative assembly.

The vassals of a baron were, by their tenure, immediately dependent on him, owed attendance at his court, and paid all their duty to the king, through that dependence which their lord was obliged by HIS tenure to acknowledge to his sovereign and superior. Their land, comprehended in the barony, was represented in Parliament by the baron himself, who was supposed, according to the fictions of the feudal law, to possess the direct property of it; and it would have been deemed incongruous to give it any other representation. They stood in the same capacity to him, that he and the other barons did to the king. The former were peers of the barony; the latter were peers of the realm. The vassals possessed a subordinate rank within their district; the baron enjoyed a superior dignity in the great assembly: they were in some degree his companions at home; he the king's companion at court: and nothing can be more evidently repugnant to all feudal ideas, and to that gradual subordination which was essential to those ancient institutions, than to imagine that the king would apply either for the advice or consent of men, who were of a rank so much inferior, and whose duty was immediately paid to the MESNE lord that was interposed between them and the throne [t]. [FN [t] Spellm. Gloss. in verb. BARO.]

If it be unreasonable to think that the vassals of a barony, though their tenure was military, and noble, and honourable, were ever summoned to give their opinion in national councils, much less can it be supposed, that the tradesmen or inhabitants of boroughs, whose condition was so much inferior, would be admitted to that privilege. It appears from Doomsday, that the greatest boroughs were, at the time of the Conquest, scarcely more than country villages; and that the inhabitants lived in entire dependence on the king or great lords, and were of a station little better than servile [u]. They were not then so much as incorporated; they formed no community; were not regarded as a body politic; and being really nothing but a number of low dependent tradesmen, living, without any particular civil tie, in neighbourhood together, they were incapable of being represented in the states of the kingdom. Even in France, a country which made more early advances in arts and civility than England, the first corporation is sixty years posterior to the Conquest under the Duke of Normandy; and the erecting of these communities was an invention of Lewis the Gross, in order to free the people from slavery under the lords, and to give them protection, by means of certain privileges and a separate jurisdiction [w]. An ancient French writer calls them a new and wicked device, to procure liberty to slaves, and encourage them in shaking off the dominion of their masters [x]. The famous charter, as it is called, of the Conqueror to the city of London, though granted at a time when he assumed the appearance of gentleness and lenity, is nothing but a letter of protection, and a declaration that the citizens should not be treated as slaves [y]. By the English feudal law, the superior lord was prohibited from marrying his female ward to a burgess or a villain [z]; so near were these two ranks esteemed to each other, and so much inferior to the nobility and gentry. Besides possessing the advantages of birth, riches, civil powers, and privileges, the nobles and gentlemen alone were armed; a circumstance which gave them a mighty superiority, in an age when nothing but the military profession was honourable, and when the loose execution of laws gave so much encouragement to open violence, and rendered it so decisive in all disputes and controversies [a]. [FN [u] LIBER HOMO anciently signified a gentleman; for scarce any one beside was entirely free. Spellm. Gloss. in verbo. [w] Du Cange's Gloss in verb. COMMUNE, COMMUNITAS. [x] Guibertus, de vita sua, lib. 2. cap. 7. [y] Stat. of Merton, 1235. cap. 6. [z] Hollingshed, vol. iii. p. 15. [a] Madox's Baron. Angl. p. 19.]

The great similarity among the feudal governments of Europe is well known to every man that has any acquaintance with ancient history; and the antiquaries of all foreign countries, where the question was never embarrassed by party disputes, have allowed, that the Commons came very late to be admitted to a share in the legislative power. In Normandy particularly, whose constitution was most likely to be William's model in raising his new fabric of English government, the states were entirely composed of the clergy and nobility; and the first incorporated boroughs or communities of that duchy were Rouen and Falaise, which enjoyed their privileges by a grant of Philip Augustus in the year 1207 [b]. All the ancient English historians, when they mention the great council of the nation, call it an assembly of the baronage, nobility, or great men; and none of their expressions, though several hundred passages might be produced, can, without the utmost violence, be tortured to a meaning, which will admit the Commons to be constituent members of that body [c]. If in the long period of two hundred years, which elapsed between the Conquest and the latter end of Henry III., and which abounded in factions, revolutions, and convulsions of all kinds, the House of Commons never performed one single legislative act, so considerable as to be once mentioned by any of the numerous historians of that age, they must have been totally insignificant: and, in that case, what reason can be assigned for their ever being assembled? Can it be supposed that men of so little weight or importance possessed a negative voice against the king and the barons? Every page of the subsequent histories discovers their existence; though these histories are not written with greater accuracy than the preceding ones, and indeed scarcely equal them in that particular. The MAGNA CHARTA of King John provides, that no scutage or aid should be imposed, either on the land or towns, but by consent of the great council; and for more security, it enumerates the persons entitled to a seat in that assembly, the prelates and immediate tenants of the crown, without any mention of the Commons: an authority so full, certain, and explicit, that nothing but the zeal of party could ever have procured credit to any contrary hypothesis. [FN [b] Norman. Du Chesnii, p. 1066. Du Cange, Gloss, in verb. COMMUNE. [c] Sometimes the historians mention the people, POPULUS, as part of the Parliament; but they always mean the laity, in opposition to the clergy. Sometimes the word COMMUNITAS is found; but it always means COMMUNITAS BARONAGII. These points are clearly proved by Dr. Brady. There is also mention sometimes made of a crowd or multitude that thronged into the great council on particular interesting occasions; but as deputies from boroughs are never once spoken of, the proof that they had not then any existence becomes the more certain and undeniable. These never could make a crowd, as they must have had a regular place assigned them, if they had made a regular part of the legislative body. There were only one hundred and thirty boroughs who received writs of summons from Edward I. It is expressly said in Gesta. Reg. Steph. p. 932, that it was usual for the populace, VULGUS, to crowd into the great councils; where they were plainly mere spectators, and could only gratify their curiosity.]

It was probably the example of the French barons which first emboldened the English to require greater independence from their sovereign: it is also probable, that the boroughs and corporations of England were established in imitation of those of France. It may, therefore, be proposed as no unlikely conjecture, that both the chief privileges of the Peers in England and the liberty of the Commons were originally the growth of that foreign country.

In ancient times, men were little solicitous to obtain a place in the legislative assemblies; and rather regarded their attendance as a burden, which was not compensated by any return of profit or honour proportionate to the trouble and expense. The only reason for instituting those public councils was, on the part of the subject, that they desired some security from the attempts of arbitrary power; and on the part of the sovereign, that he despaired of governing men of such independent spirits without their own consent and concurrence. But the Commons, or the inhabitants of boroughs, had not as yet reached such a degree of consideration as to desire SECURITY against their prince, or to imagine that, even if they were assembled in a representative body, they had power or rank sufficient to enforce it. The only protection which they aspired to, was against the immediate violence and injustice of their fellow-citizens; and this advantage each of them looked for, from the courts of justice, or from the authority of some great lord, to whom, by law or his own choice, he was attached. On the other hand, the sovereign was sufficiently assured of obedience in the whole community, if he procured the concurrence of the nobles; nor had he reason to apprehend, that any order of the state could resist his and their united authority. The military sub-vassals could entertain no idea of opposing both their prince and their superiors: the burgesses and tradesmen could much less aspire to such a thought: and thus, even if history were silent on the head, we have reason to conclude, from the known situation of society during those ages, that the Commons were never admitted as members of the legislative body.

The EXECUTIVE power of the Anglo-Norman government was lodged in the king. Besides the stated meetings of the national council at the three great festivals of Christmas, Easter, and Whitsuntide [d], he was accustomed, on any sudden exigence, to summon them together. He could at his pleasure command the attendance of his barons and their vassals, in which consisted the military force of the kingdom; and could employ them, during forty days, either in resisting a foreign enemy, or reducing his rebellious subjects. And what was of great importance, the whole JUDICIAL power was ultimately in his hands, and was exercised by officers and ministers of his appointment. [FN [d] Dugd. Orig. Jurid. p. 15. Spellm. Gloss. In verbo PARLIAMENTUM.]

[MN Judicial power.] The general plan of the Anglo-Norman government was, that the court of barony was appointed to decide such controversies as arose between the several vassals or subjects of the same barony; the hundred court and county court, which were still continued as during the Saxon times [e], to judge between the subjects of different baronies [f]; and the CURIA REGIS, or king's court, to give sentence among the barons themselves [g]. But this plan, though simple, was attended with some circumstances which, being derived from a very extensive authority assumed by the Conqueror, contributed to increase the royal prerogative: and, as long as the state was not disturbed by arms, reduced every order of the community to some degree of dependence and subordination. [FN [e] Ang. Sacra, vol. i. p. 334, &c. Dugd. Orig. Jurid. p. 27, 29. Madox, Hist. of Exch. p. 75, 76. Spellm. Gloss. in verbo HUNDRED. [f] None of the feudal governments in Europe had such institutions as the county courts, which the great authority of the Conqueror still retained from the Saxon customs. All the freeholders of the county, even the greatest barons, were obliged to attend the sheriffs in these courts, and to assist them in the administration of justice. By these means they received frequent and sensible admonitions of their dependence on the king or supreme magistrate: they formed a kind of community with their fellow barons and freeholders: they were often drawn from their individual and independent state, peculiar to the feudal system, and were made members of a political body: and, perhaps, this institution of county courts in England has had greater effects on the government than has yet been distinctly pointed out by historians, or traced by antiquaries. The barons were never able to free themselves from this attendance on the sheriffs and itinerant justices till the reign of Henry III. [g] Brady, Pref. p. 143.]

The king himself often sat in his court, which always attended his person [h]: he there heard causes and pronounced judgment [i]; and though he was assisted by the advice of the other members, it is not to be imagined that a decision could easily be obtained contrary to his inclination or opinion. In his absence the chief justiciary presided, who was the first magistrate in the state, and a kind of viceroy, on whom depended all the civil affairs of the kingdom [k] The other chief officers of the crown, the constable, mareschal, seneschal, chamberlain, treasurer, and chancellor [l], were members, together with such feudal barons as thought proper to attend, and the barons of the exchequer, who at first were also feudal barons, appointed by the king [m]. This court, which was sometimes called the king's court, sometimes the court of exchequer, judged in all causes, civil and criminal, and comprehended the whole business which is now shared out among four courts, the chancery, the king's-bench, the common-pleas, and the exchequer [n]. [FN [h] Madox, Hist. of Exch. p. 103. [i] Bracton, lib. 3. cap. 9. Sec. 1. cap. 10. Sec. 1. [k] Spellm. Gloss. in verbo JUSTICIARII. [l] Madox, Hist. Exch. p. 27, 29, 33, 38, 41, 54. The Normans introduced the practice of sealing charters; and the chancellor's office was to keep the great seal. Ingulph. Dugd. p. 33, 34. [m] Madox, Hist. of the Exch. p. 134, 135. Gerv. Dorob. p. 1387. [n] Madox, Hist. of the Exch. p. 56, 70.]

Such an accumulation of powers was itself a great source of authority, and rendered the jurisdiction of the court formidable to all the subjects; but the turn which judicial trials took soon after the Conquest served still more to increase its authority, and to augment the royal prerogatives. William, among the other violent changes which he attempted and effected, had introduced the Norman law into England [o], had ordered all the pleadings to be in that tongue, and had interwoven, with the English jurisprudence, all the maxims and principles, which the Normans, more advanced in cultivation, and naturally litigious, were accustomed to observe in the distribution of justice. Law now became a science, which at first fell entirely into the hands of the Normans; and which, even after it was communicated to the English, required so much study and application, that the laity, in those ignorant ages, were incapable of attaining it, and it was a mystery almost solely confined to the clergy, and chiefly to the monks [p]. The great officers of the crown, and the feudal barons, who were military men, found themselves unfit to penetrate into those obscurities; and though they were entitled to a seat in the supreme judicature, the business of the court was wholly managed by the chief justiciary and the law barons, who were men appointed by the king and entirely at his disposal [q]. This natural course of things was forwarded by the multiplicity of business which flowed into that court, and which daily augmented by the appeals from all the subordinate judicatures of the kingdom. [FN [o] Dial. de Scac. p. 30. apud Madox, Hist. of the Exchequer. [p] Malmes. lib. 4. p. 123. [q] Dugd. Orig. Jurid. p. 25.]

In the Saxon times, no appeal was received in the king's court, except upon the denial or delay of justice by the inferior courts; and the same practice was still observed in most of the feudal kingdoms of Europe. But the great power of the Conqueror established, at first, in England, an authority, which the monarchs in France were not able to attain till the reign of St. Lewis, who lived near two centuries after: he empowered his court to receive appeals both from the courts of barony and the county courts, and by that means brought the administration of justice ultimately into the hands of the sovereign [r]. And lest the expense or trouble of a journey to courts should discourage suitors, and make them acquiesce in the decision of the inferior judicatures, itinerant judges were afterwards established, who made their circuits throughout the kingdom, and tried all causes that were brought before them [s]. By this expedient the courts of barony were kept in awe; and if they still preserved some influence, it was only from the apprehensions which the vassals might entertain of disobliging their superior, by appealing from his jurisdiction. But the county courts were much discredited; and as the freeholders were found ignorant of the intricate principles and forms of the new law, the lawyers gradually brought all business before the king's judges, and abandoned the ancient simple and popular judicature. After this manner, the formalities of justice, which, though they appear tedious and cumbersome, are found requisite to the support of liberty in all monarchical governments, proved at first, by a combination of causes, very advantageous to royal authority in England. [FN [r] Madox, Hist. of the Exch. p. 65. Glanv. lib. 12. cap. 1. 7. LL. Hen. I. Sec. 31, apud Wilkins, p. 248. Fitz-Stephens, p. 36. Coke's Comment. on the statute of Marlbridge, cap. 20. [s] Madox, Hist. of the Exch. p. 83, 84, 100. Gerv. Dorob. p. 1410. What made the Anglo-Norman barons more readily submit to appeals from their court to the king's court of exchequer, was their being accustomed to like appeals in Normandy to the ducal court of exchequer. See Gilbert's History of the Exchequer, p. 1, 2; though the author thinks it doubtful, whether the Norman court was not rather copied from the English, p. 6.]

[MN Revenue of the crown.] The power of the Norman kings was also much supported by a great revenue; and by a revenue that was fixed, perpetual, and independent of the subject. The people, without betaking themselves to arms, had no check upon the king, and no regular security for the due administration of justice. In those days of violence, many instances of oppression passed unheeded; and soon after were openly pleaded as precedents, which it was unlawful to dispute or control. Princes and ministers were too ignorant to be themselves sensible of the advantages attending an equitable administration; and there was no established council or assembly which could protect the people, and, by withdrawing supplies, regularly and peaceably admonish the king of his duty, and ensure the execution of the laws.

The first branch of the king's stated revenue was the royal demesnes or crown lands, which were very extensive, and comprehended, besides a great number of manors, most of the chief cities of the kingdom. It was established by law, that the king could alienate no part of his demesne, and that he himself, or his successor, could at any time resume such donations [t]: but this law was never regularly observed; which happily rendered in time the crown somewhat more dependent. The rent of the crown lands, considered merely as so much riches, was a source of power: the influence of the king over his tenants and the inhabitants of his towns increased this power: but the other numerous branches of his revenue, besides supplying his treasury, gave, by their very nature, a great latitude to arbitrary authority, and were a support of the prerogative; as will appear from an enumeration of them. [FN [t] Fleta, lib. 1. cap. 8. Sec. 17. lib. 3. cap. 6. Sec. 3. Bracton, lib. 2. cap. 5.]

The king was never content with the stated rents, but levied heavy talliages at pleasure on the inhabitants both of town and country, who lived within his demesne. All bargains of sale, in order to prevent theft, being prohibited, except in boroughs and public markets [u], he pretended to exact tolls, on all goods which were there sold [w]. He seized two hogsheads, one before and one behind the mast, from every vessel that imported wine. All goods paid to his customs a proportionable part of their value [x]: passage over bridges and on rivers was loaded with tolls at pleasure [y]: and though the boroughs by degrees bought the liberty of farming these impositions, yet the revenue profited by these bargains: new sums were often exacted for the renewal and confirmation of their charters [z] and the people were thus held in perpetual dependence. [FN [u] LL. Will. I. cap. 61. [w] Madox, p. 530. [x] Ibid. p. 529. This author says a fifteenth. But it is not easy to reconcile this account to other authorities. [y] Madox, p. 529. [z] Madox's Hist. of the Exch. p. 275, 276, 277, &c.]

Such was the situation of the inhabitants within the royal demesnes. But the possessors of land, or the military tenants, though they were better protected both by law, and by the great privilege of carrying arms, were, from the nature of their tenures, much exposed to the inroads of power, and possessed not what we should esteem, in our age, a very durable security. The Conqueror ordained, that the barons should be obliged to pay nothing beyond their stated services [a], except a reasonable aid to ransom his person if he were taken in war, to make his eldest son a knight, and to marry his eldest daughter. What should, on these occasions, be deemed a reasonable aid, was not determined; and the demands of the crown were so far discretionary. [FN [a] LL. Will. Conq. Sec. 55.]

The king could require in war the personal attendance of his vassals, that is, of almost all the landed proprietors; and if they declined the service, they were obliged to pay him a composition in money, which was called a scutage. The sum was, during some reigns, precarious and uncertain; it was sometimes levied without allowing the vassal the liberty of personal service [b]; and it was an usual artifice of the king, to pretend an expedition, that he might be entitled to levy the scutage from his military tenants. Danegelt was another species of land-tax levied by the early Norman kings, arbitrarily, and contrary to the laws of the Conqueror [c]. Moneyage was also a general land-tax of the same nature, levied by the two first Norman kings, and abolished by the charter of Henry I. [d]. It was a shilling paid every three years by each hearth, to induce the king not to use his prerogative in debasing the coin. Indeed it appears from that charter, that though the Conqueror had granted his military tenants an immunity from all taxes and talliages, he and his son William had never thought themselves bound to observe that rule, but had levied impositions at pleasure on all the landed estates of the kingdom. The utmost that Henry grants, is, that the land cultivated by the military tenant himself shall not be so burdened; but he reserves the power of taxing the farmers; and as it is known that Henry's charter was never observed in any one article, we may be assured that this prince and his successors retracted even this small indulgence, and levied arbitrary impositions on all the lands of all their subjects. These taxes were sometimes very heavy; since Malmesbury tells us, that in the reign of William Rufus, the farmers, on account of them, abandoned tillage, and a famine ensued [e]. [FN [b] Gervase de Tilbury, p. 25. [c] Madox's Hist of the Exch. p. 475. [d] Matth. Paris, p. 38. [e] So also Chron. Abb. St. Petri de Burgo, p. 55. Knyghton, p. 2366.]

The escheats were a great branch both of power and of revenue, especially during the first reigns after the Conquest. In default of posterity from the first baron, his land reverted to the crown, and continually augmented the king's possessions. The prince had indeed by law a power of alienating these escheats; but by this means he had an opportunity of establishing the fortunes of his friends and servants, and thereby enlarging his authority. Sometimes he retained them in his own hands; and they were gradually confounded with the royal demesnes, and became difficult to be distinguished from them. This confusion is probably the reason why the king acquired the right of alienating his demesnes.

But besides escheats from default of heirs, those which ensued from crimes, or breach of duty towards the superior lord, were frequent in ancient times. If the vassal, being thrice summoned to attend his superior's court, and do fealty, neglected or refused obedience, he forfeited all title to his land [f]. If he denied his tenure, or refused his service, he was exposed to the same penalty [g]. If he sold his estate without licence from his lord [h], or if he sold it upon any other tenure or title than that by which he himself held it [i], he lost all right to it. The adhering to his lord's enemies [k], deserting him in war [l], betraying his secrets [m], debauching his wife, or his near relations [n], or even using indecent freedoms with them [o], might be punished by forfeiture. The higher crimes, rapes, robbery, murder, arson, &c., were called felony; and being interpreted want of fidelity to his lord, made him lose his fief [p]. Even where the felon was vassal to a baron, though his immediate lord enjoyed the forfeiture, the king might retain possession of his estate during a twelvemonth, and had the right of spoiling and destroying it, unless the baron paid him a reasonable composition [q]. We have not here enumerated all the species of felonies, or of crimes by which forfeiture was incurred: we have said enough to prove, that the possession of feudal property was anciently somewhat precarious, and that the primary idea was never lost, of its being a kind of FEE or BENEFICE. [FN [f] Hottom. de Feud. Disp. cap. 38. col. 886. [g] Lib. Feud. lib. 3. tit. 1; lib. 4. tit. 21, 39. [h] Id. lib. 1. tit. 21. [i] Id. lib. 4. tit. 44. [k] Id. lib. 3. tit. 1. [l] Id. lib. 4. tit. 14, 21. [m] Id. lib. 4. tit. 14. [n] Id. lib. 1. tit. 14, 23. [o] Id. lib. 1. tit. 1. [p] Spellm. Gloss. in verb. FELONIA. [q] Ibid. Glanville, lib. 7 cap. 17.]