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 kings 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 Johns 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 Lewiss 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
Canges 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
superiors 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.]
When a baron died, the king immediately took possession of the estate;
and the heir, before he recovered his right, was obliged to make
application to the crown, and desire that he might be admitted to do
homage for his land, and pay a composition to the king. This
composition was not at first fixed by law, at least by practice: the
king was often exorbitant in his demands, and kept possession of the
land till they were complied with.
If the heir were a minor, the king retained the whole profit of the
estate till his majority; and might grant what sum he thought proper
for the education and maintenance of the young baron. This practice
was also founded on the notion, that a fief was a benefice, and that
while the heir could not perform his military services, the revenue
devolved to the superior, who employed another in his stead. It is
obvious, that a great proportion of the landed property must, by means
of this device, be continually in the hands of the prince, and that
all the noble families were thereby held in perpetual dependence.
When the king granted the wardship of a rich heir to any one, he had
the opportunity of enriching a favourite or minister: if he sold it,
he thereby levied a considerable sum of money. Simon de Mountfort
paid Henry III. ten thousand marks, an immense sum in those days, for
the wardship of Gilbert de Umfreville [r]. Geoffrey de Mandeville
paid to the same prince the sum of twenty thousand marks, that he
might marry Isabel, Countess of Gloucester, and possess all her lands
and knights' fees. This sum would be equivalent to three hundred
thousand, perhaps four hundred thousand pounds in our time [s].
[FN [r] Madox's Hist. of the Exch. p. 223. [s] Madoxs Hist. of the
Exch. p. 322.]
If the heir were a female, the king was entitled to offer her any
husband of her rank he thought proper; and if she refused him, she
forfeited her land. Even a male heir could not marry without the
royal consent; and it was usual for men to pay large sums for the
liberty of making their own choice in marriage [t]. No man could
dispose of his land, either by sale or will, without the consent of
his superior. The possessor was never considered as full proprietor:
he was still a kind of beneficiary; and could not oblige his superior
to accept of any vassal that was not agreeable to him.
[FN [t] Ibid. p. 320.]
Fines, amerciaments, and oblatas, as they were called, were another
considerable branch of the royal power and revenue. The ancient
records of the exchequer, which are still preserved, give surprising
accounts of the numerous fines and amerciaments levied in those days
[u] and of the strange inventions fallen upon to exact money from the
subject. It appears that the ancient kings of England put themselves
entirely on the footing of the barbarous eastern princes, whom no man
must approach without a present, who sell all their good offices, and
who intrude themselves into every business that they may have a
pretence for extorting money. Even justice was avowedly bought and
sold; the king's court itself, though the supreme judicature of the
kingdom, was open to none that brought not presents to the king; the
bribes given for the expedition, delay [w], suspension, and, doubtless
for the perversion of justice, were entered in the public registers of
the royal revenue, and remain as monuments of the perpetual iniquity
and tyranny of the times. The barons of the exchequer, for instance,
the first nobility of the kingdom, were not ashamed to insert, as an
article in their records, that the county of Norfolk paid a sum that
they might be fairly dealt with [x]; the borough of Yarmouth, that the
king's charters, which they have for their liberties, might not be
violated [y]; Richard, son of Gilbert, for the king's helping him to
recover his debt from the Jews [z]; Serlo, son of Terlavaston, that he
might be permitted to make his defence in case he were accused of a
certain homicide [a]; Walter de Burton, for free law, if accused of
wounding another [b]; Robert de Essart, for having an inquest to find
whether Roger the Butcher, and Wace and Humphrey, accused him of
robbery and theft out of envy and ill-will or not [c]; William
Buhurst, for having an inquest to find whether he were accused of the
death of one Godwin out of ill-will, or for just cause [d]. I have
selected these few instances from a great number of a like kind, which
Madox had selected from a still greater number, preserved in the
ancient rolls of the exchequer [e].
[FN [u] Id. p. 272. [w] Id. p. 274, 309. [x] Id. p. 295. [y] Id.
ibid. [z] Madoxs Hist. of the Exch. p. 296. He paid two hundred
marks, great sum in those days. [a] Id. p. 296. [b] Id. ibid. [c]
Id. p. 298. [d] Id. p. 302. [e] Id. chap. 12.]
Sometimes the party litigant offered the king a certain portion, a
half, a third, a fourth, payable out of the debts, which he, as the
executor of justice, should assist him in recovering [f]. Theophania
de Westland agreed to pay the half of two hundred and twelve marks,
that she might recover that sum against James de Fughleston [g];
Solomon, the Jew, engaged to pay one mark out of every seven that he
should recover against Hugh de la Hose [h]; Nicholas Morrel promised
to pay sixty pounds, that the Earl of Flanders might be distrained to
pay him three hundred and forty-three pounds, which the earl had taken
from him; and these sixty pounds were to be paid out of the first
money that Nicholas should recover from the earl [i].
[FN [f] Id. p. 311. [g] Id. ibid. [h] Id. p. 79, 312. [i] Id. p.
312.]
As the king assumed the entire power over trade, he was to be paid for
a permission to exercise commerce or industry of any kind [k]. Hugh
Oisel paid four hundred marks for liberty to trade in England [l];
Nigel de Havene gave fifty marks for the partnership in merchandize
which he had with Gervase de Hanton [m]; the men of Worcester paid one
hundred shillings, that they might have the liberty of selling and
buying dyed cloth as formerly [n]; several other towns paid for a like
liberty [o]. The commerce indeed of the kingdom was so much under
the control of the king, that he erected guilds, corporations, and
monopolies, wherever he pleased; and levied sums for these exclusive
privileges [p].
[FN [k] Id. p. 323. [l] Id. ibid. [m] Id. ibid. [n] Id. p. 324.
[o] Id. ibid. [p] Madox's Hist. of the Exch. p. 232, 233, &c.]
There were no profits so small as to be below the king's attention.
Henry, son of Arthur, gave ten dogs to have a recognition against the
Countess of Copland for one knight's fee [q]. Roger, son of Nicholas,
gave twenty lampreys and twenty shads for an inquest to find, whether
Gilbert, son of Alured, gave to Roger two hundred muttons to obtain
his confirmation for certain lands, or whether Roger took them from
him by violence [r]; Geoffrey Fitz-Pierre, the chief justiciary, gave
two good Norway hawks, that Walter le Madine might have leave to
export a hundred weight of cheese out of the king's dominions [s].
[FN [q] Id. p. 298. [r] Id. p. 305. [s] Id. p. 325.]
It is really amusing to remark the strange business in which the king
sometimes interfered, and never without a present. The wife of Hugh
de Neville gave the king two hundred hens, that she might lie with her
husband one night [t]; and she brought with her two sureties, who
answered each for a hundred hens. It is probable that her husband was
a prisoner, which debarred her from having access to him. The Abbot
of Rucford paid ten marks for leave to erect houses and place men upon
his land near Welhang, in order to secure his wood there from being
stolen [u]. Hugh, Archdeacon of Wells, gave one tun of wine for leave
to carry six hundred sums of corn whither he would [w]; Peter de
Peraris gave twenty marks for leave to salt fishes, as Peter Chevalier
used to do [x].
[FN [t] Id. p. 320. [u] Id. p. 326. [w] Id. p. 320. [x] Id. p.
326.]
It was usual to pay high fines, in order to gain the king's good-will,
or mitigate his anger. In the reign of Henry II., Gilbert, the son of
Fergus, fines in nine hundred and nineteen pounds, nine shillings, to
obtain that prince's favour; William de Chataignes, a thousand marks,
that he would remit his displeasure. In the reign of Henry III., the
city of London fines in no less a sum than twenty thousand pounds on
the same account [y].
[FN [y] Id. p. 327, 329.]
The king's protection and good offices of every kind were bought and
sold. Robert Grislet paid twenty marks of silver, that the king would
help him against the Earl of Mortaigne, in a certain plea [z]: Robert
de Cundet gave thirty marks of silver, that the king would bring him
to an accord with the Bishop of Lincoln [a]: Ralph de Breckham gave a
hawk, that the king would protect him [b]; and this is a very frequent
reason for payments: John, son of Ordgar, gave a Norway hawk, to have
the king's request to the king of Norway to let him have his brother
Godard's chattels [c]: Richard de Neville gave twenty palfreys to
obtain the king's request to Isolda Bisset, that she should take him
for a husband [d]: Roger Fitz-Walter gave three good palfreys to have
the king's letter to Roger Bertram's mother, that she should marry him
[e]: Eling, the dean, paid one hundred marks, that his whore and his
children might be let out upon bail [f]: the Bishop of Winchester gave
one tun of good wine for his not putting the king in mind to give a
girdle to the Countess of Albemarle [g]: Robert de Veaux gave five of
the best palfreys, that the king would hold his tongue about Henry
Pinel's wife [h]. There are in the records of exchequer, many other
singular instances of a like nature [i]. It will, however, be just to
remark, that the same ridiculous practices and dangerous abuses
prevailed in Normandy, and probably in all the other states of Europe
[k]: England was not, in this respect, more barbarous than its
neighbours.
[FN [z] Madox's Hist. of the Exch. p. 329. [a] Id. p. 330. [b] Id.
p. 332. [c] Id. ibid. [d] Id. p. 333. [e] Id. ibid. [f] Id. p.
342. PRO HABENDA AMICA SUA ET FILIIS, &c. [g] Id. p. 352. [h] Id.
ibid. UT REX TACERET DE UXORE HENRICI PINEL. [i] WE SHALL GRATIFY
THE READER'S CURIOSITY BY SUBJOINING A FEW MORE INSTANCES FROM MADOX,
p. 332. Hugh Oisel was to give the king two robes of a good green
colour, to have the king's letters patent to the merchants of
Flanders, with a request to render him one thousand marks, which he
lost in Flanders. The Abbot of Hyde paid thirty marks, to have the
king's letters of request to the Archbishop of Canterbury, to remove
certain monks that were against the abbot. Roger de Trihanton paid
twenty marks and a palfrey, to have the king's request to Richard de
Umfreville to give him his sister to wife, and to the sister, that she
would accept him for a husband. William de Cheveringworth paid five
marks, to have the king's letter to the Abbot of Perfore, to let him
enjoy peaceably his tithes as formerly. Matthew de Hereford, clerk,
paid ten marks for a letter of request to the Bishop of Llandaff, to
let him enjoy peaceably his church of Schenfrith. Andrew Neulun gave
three Flemish caps for the king's request to the Prior of Chikesand,
for performance of an agreement made between them. Henry de Fontibus
gave a Lombardy horse of value, to have the king's request to Henry
Fitz-Hervey, that he would grant him his daughter to wife. Roger, son
of Nicholas, promised all the lampreys he could get, to have the
king's request to Earl William Marshall, that he would grant him the
manor of Langeford at Firm. The burgesses of Gloucester promised
three hundred lampreys, that they might not be distrained to find the
prisoners of Poictou with necessaries, unless they pleased. Id. p.
352. Jordan, son of Reginald, paid twenty marks, to have the king's
request to William Paniel, that he would grant him the land of Mill
Nieresult, and the custody of his heirs: and if Jordan obtained the
same, he was pay the twenty marks, otherwise not. Id. p. 333. [k]
Madox's Hist. of the Exch. p. 359.]
These iniquitous practices of the Norman kings were so well known,
that on the death of Hugh Bigod, in the reign of Henry II., the best
and most just of these princes, the eldest son and the widow of this
nobleman came to court, and strove, by offering large presents to the
king, each of them to acquire possession of that rich inheritance.
The king was so equitable as to order the cause to be tried by the
great council! But, in the mean time, he seized all the money and
treasure of the deceased [l]. Peter of Blois, a judicious, and even
an elegant writer for that age, gives a pathetic description of the
venality of justice, and the oppressions of the poor, under the reign
of Henry; and he scruples not to complain to the king himself of these
abuses [m]. We may judge what the case would be under the government
of worst princes. The articles of inquiry concerning the conduct of
sheriffs, which Henry promulgated in 1170, show the great power, as
well as the licentiousness of these officers [n].
[FN [l] Bened. Abb. p. 180, 181. [m] Petri Bles. Epist. 95. apud
Bibl. Patrum, tom. p. xxiv. 2014. [n] Hoveden, Chron. Gerv. p. 1410.]
Amerciaments, or fines for crimes and trespasses, were another
considerable branch of the royal revenue [o]. Most crimes were atoned
for by money; the fines imposed were not limited by any rule or
statute; and frequently occasioned the total ruin of the person, even
for the slightest trespasses. The forest-laws, particularly, were a
great source of oppression. The king possessed sixty-eight forests,
thirteen chases, and seven hundred and eighty-one parks, in different
parts of England [p]; and considering the extreme passion of the
English and Normans for hunting, these were so many snares laid for
the people, by which they were allured into trespasses, and brought
within the reach of arbitrary and rigorous laws, which the king had
thought proper to enact by his own authority.
[FN [o] Madox, chap. 14. [p] Spellm. Gloss. in verbo FORESTA.]
But the most barefaced acts of tyranny and oppression were practised
against the Jews, who were entirely out of the protection of law, were
extremely odious from the bigotry of the people, and were abandoned to
the immeasurable rapacity of the king and his ministers. Besides many
other indignities to which they were continually exposed, it appears
that they were once all thrown into prison, and the sum of sixty-six
thousand marks exacted for their liberty [q]: at another time, Isaac
the Jew paid alone five thousand one hundred marks [r]; Brun, three
thousand marks [s]; Jurnet, two thousand; Bennet, five hundred: at
another, Licorica, widow of David, the Jew of Oxford, was required to
pay six thousand marks; and she was delivered over to six of the
richest and discreetest Jews in England, who were to answer for the
sum [t]. Henry III. borrowed five thousand marks from the Earl of
Cornwall; and for his repayment, consigned over to him all the Jews in
England [u]. The revenue arising from exactions upon this nation was
so considerable, that there was a particular court of exchequer set
apart for managing it [w].
[FN [q] Madox's Hist. of the Exch. p. 151. This happened in the reign
of King John. [r] Id. p. 151. [s] Id. p. 153. [t] Id. p. 168. [u]
Id. p. 156. [w] Id. chap. 7.]
[MN Commerce.]
We may judge concerning the low state of commerce among the English,
when the Jews, notwithstanding these oppressions, could still find
their account in trading among them, and lending them money. And as
the improvements of agriculture were also much checked by the immense
possessions of the nobility, by the disorders of the times, and by the
precarious state of feudal property, it appears that industry of no
kind could then have place in the kingdom [x].
[FN [x] We learn from the extracts given us of Doomsday by Brady, in
his Treatise of Boroughs, that almost all the boroughs of England had
suffered in the shock of the Conquest, and had extremely decayed
between the death of the Confessor, and the time when Doomsday was
framed.]
It is asserted by Sir Henry Spellman [y], as an undoubted truth, that,
during the reigns of the first Norman princes, every edict of the
king, issued with the consent of his privy council, had the full force
of law. But the barons, surely, were not so passive as to intrust a
power, entirely arbitrary and despotic, into the hands of the
sovereign. It only appears, that the constitution had not fixed any
precise boundaries to the royal power; that the right of issuing
proclamations on any emergence, and of exacting obedience to them, a
right which was always supposed inherent in the crown, is very
difficult to be distinguished from a legislative authority; that the
extreme imperfection of the ancient laws, and the sudden exigencies
which often occurred in such turbulent governments, obliged the prince
to exert frequently the latent powers of his prerogative; that he
naturally proceeded, from the acquiescence of the people, to assume,
in many particulars of moment, an authority from which he had excluded
himself by express statutes, charters, or concessions, and which was,
in the main, repugnant to the general genius of the constitution; and
that the lives, the personal liberty, and the properties of all his
subjects, were less secured by law against the exertion of his
arbitrary authority, than by the independent power and private
connexions of each individual. It appears from the great charter
itself, that not only John, a tyrannical prince, and Richard, a
violent one, but their father, Henry, under whose reign the prevalence
of gross abuses is the least to be suspected, were accustomed, from
their sole authority, without process of law, to imprison, banish, and
attaint the freemen of their kingdom.
[FN [y] Gloss. in verb. JUDICIUM DEI. The author of the MIROIR DES
JUSTICES complains, that ordinances are only made by the king and his
clerks, and by aliens and others, who dare not contradict the king,
but study to please him. Whence, he concludes, laws are oftener
dictated by will, than founded on right.]
A great baron, in ancient times, considered himself as a kind of
sovereign within his territory; and was attended by courtiers and
dependents more zealously attached to him than the ministers of state
and the great officers were commonly to THEIR sovereign. He often
maintained in his court the parade of royalty, by establishing a
justiciary, constable, mareschal, chamberlain, seneschal, and
chancellor, and assigning to each of these officers a separate
province and command. He was usually very assiduous in exercising his
jurisdiction; and took such delight in that image of sovereignty, that
it was found necessary to restrain his activity, and prohibit him by
law from holding courts too frequently [z]. It is not to be doubted,
but the example, set him by the prince of a mercenary and sordid
extortion, would be faithfully copied, and that all his good and bad
offices, his justice and injustice, were equally put to sale. He had
the power, with the king's consent, to exact talliages even from the
free citizens who lived within his barony; and as his necessities made
him rapacious, his authority was usually found to be more oppressive
and tyrannical than that of the sovereign [a]. He was ever engaged in
hereditary or personal animosities or confederacies with his
neighbours, and often gave protection to all desperate adventurers and
criminals, who could be useful in serving his violent purposes. He
was able alone, in times of tranquillity, to obstruct the execution of
justice within his territories; and by combining with a few
malecontent barons of high rank and power, he could throw the state
into convulsions. And, on the whole, though the royal authority was
confined within bounds, and often within very narrow ones, yet the
check was irregular, and frequently the source of great disorders; nor
was it derived from the liberty of the people, but from the military
power of many petty tyrants, who were equally dangerous to the prince
and oppressive to the subject.
[FN [z] Dugd. Jurid. Orig. p. 26. [a] Madox, Hist. of the Exch. p.
520.]
[MN The Church.]
The power of the church was another rampart against royal authority;
but this defence was also the cause of many mischiefs and
inconveniences. The dignified clergy, perhaps, were not so prone to
immediate violence as the barons; but as they pretended to a total
independence on the state, and could always cover themselves with the
appearances of religion, they proved, in one respect, an obstruction
to the settlement of the kingdom, and to the regular execution of the
laws. The policy of the Conqueror was in this particular liable to
some exception. He augmented the superstitious veneration for Rome,
to which that age was so much inclined; and he broke those bands of
connexion, which, in the Saxon times, had preserved an union between
the lay and the clerical orders. He prohibited the bishops from
sitting in the county courts; he allowed ecclesiastical causes to be
tried in spiritual courts only [b]; and he so much exalted the power
of the clergy, that of sixty thousand two hundred and fifteen knights'
fees, into which he divided England, he placed no less than twenty-
eight thousand and fifteen under the church [c].
[FN [b] Char. Will. apud Wilkins, p. 230. Spellm. Conc. vol. ii. p.
14. [c] Spellm. Gloss. in verb. MANUS MORTUA. We are not to imagine,
as some have done, that the church possessed lands in this proportion,
but only that they and their vassals enjoyed such a proportionable
part of the landed property.]
[MN Civil laws.]
The right of primogeniture was introduced with the feudal law: an
institution which is hurtful, by producing and maintaining an unequal
division of private property; but is advantageous, in another respect,
by accustoming the people to a preference in favour of the eldest son,
and thereby preventing a partition or disputed succession in the
monarchy. The Normans introduced the use of surnames, which tend to
preserve the knowledge of families and pedigrees. They abolished none
of the old absurd methods of trial by the cross or ordeal; and they
added a new absurdity, the trial by single combat [d], which became a
regular part of jurisprudence, and was conducted with all the order,
method, devotion, and solemnity imaginable [e]. The ideas of chivalry
also seem to have been imported by the Normans: no traces of those
fantastic notions are to be found among the plain and rustic Saxons.
[FN [d] LL. Will. cap. 68. [e] Spellm. Gloss. in verb. CAMPUS. The
last instance of these duels was in the 15th of Eliz. So long did
that absurdity remain.]
[MN Manners.]
The feudal institutions, by raising the military tenants to a kind of
sovereign dignity, by rendering personal strength and valour
requisite, and by making every knight and baron his own protector and
avenger, begat that martial pride and sense of honour, which, being
cultivated and embellished by the poets and romance-writers of the
age, ended in chivalry. The virtuous knight fought not only in his
own quarrel, but in that of the innocent, of the helpless, and, above
all, of the fair, whom he supposed to be for ever under the
guardianship of his valiant arm. The uncourteous knight who, from his
castle, exercised robbery on travellers, and committed violence on
virgins, was the object of his perpetual indignation; and he put him
to death, without scruple, or trial, or appeal, whenever he met with
him. The great independence of men made personal honour and fidelity
the chief tie among them; and rendered it the capital virtue of every
true knight, or genuine professor of chivalry. The solemnities of
single combat, as established by law, banished the notion of every
thing unfair or unequal in rencounters; and maintained an appearance
of courtesy between the combatants till the moment of their
engagement. The credulity of the age grafted on this stock the notion
of giants, enchanters, dragons, spells [f], and a thousand wonders,
which still multiplied during the time of the crusades; when men,
returning from so great a distance, used the liberty of imposing every
fiction on their believing audience. These ideas of chivalry infected
the writings, conversation, and behaviour of men, during some ages;
and even after they were, in a great measure, banished by the revival
of learning, they left modern GALLANTRY and the POINT OF HONOUR, which
still maintain their influence, and are the genuine offspring of those
ancient affectations.
[FN [f] In all legal single combats, it was part of the champion's
oath, that he carried not about him any herb, spell, or enchantment,
by which he might procure victory. Dugd. Orig. Jurid. p. 82.]
The concession of the great charter, or rather its full establishment,
(for there was a considerable interval of time between the one and the
other,) gave rise, by degrees, to a new species of government, and
introduced some order and justice into the administration. The
ensuing scenes of our history are therefore somewhat different from
the preceding. Yet the great charter contained no establishment of
new courts, magistrates, or senates, nor abolition of the old. It
introduced no new distribution of the powers of the commonwealth, and
no innovation in the political or public law of the kingdom. It only
guarded, and that merely by verbal clauses, against such tyrannical
practices as are incompatible with civilized government, and, if they
become very frequent, are incompatible with all government. The
barbarous license of the kings, and perhaps of the nobles, was
thenceforth somewhat more restrained: men acquired some more security
for their properties and their liberties: and government approached a
little nearer to that end for which it was originally instituted, the
distribution of justice, and the equal protection of the citizens.
Acts of violence and iniquity in the crown, which before were only
deemed injurious to individuals, and were hazardous chiefly in
proportion to the number, power, and dignity of the persons affected
by them, were now regarded, in some degree, as public injuries, and as
infringements of a charter calculated for general security. And thus
the establishment of the great charter, without seeming anywise to
innovate in the distribution of political power, became a kind of
epoch in the constitution.