FEUDAL AND ANGLO-NORMAN GOVERNMENT AND MANNERS

The feudal law is the chief foundation, both of the political government and of the jurisprudence established by the Norman's 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 repeal many observations and reflections which have been communicated by others; yet as every book, agreeably to the observation of a great historian, should be a complete as possible within itself, and should never refer for anything material to other books, it will in 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.

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 them 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 was it 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. 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 time voluntary association or attachment of the other chieftains.

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 devastation's 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 time 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 fulfill 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 thins 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 there native liberty, and support, without court-favour, the honour of their rank and family.

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 burthened 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. 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.

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 advantage 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, 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.

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 everywhere 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 subtitle principles, applied to a variety of cases by profound reasoning's 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 incitation 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 everywhere 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. (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 Bracon 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 entrusted 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; and received all the advantages, and was exposed to all the inconveniences, incident to that species of civil polity.

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 immediately or immediately, of him; and their property was conceived to be, in some degree, conditional. 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.

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.

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 villain-age: the other inhabitants of the country paid their rent 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 everywhere 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 the 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. Robert, earl of Mortaigne, had 973 manors and lordships: Allan, earl of Britanny and Richmond, 442: Odo, bishop of Baieux, 439: Geoffrey, bishop of Coutance, 280: 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: Norman d'Arcy, 33.(it is remarkable that this family of d'Arcy seems to be the only male descendants of any of the Conquers barons now remaining among the peers. Lord Holdernesie is the heir of that family.) Sir Henry Spelman computes, that in the large county of Norfolk, there were not, in the Conqueror's time, above sixty-six proprietors of land. Men, possessed of such princely revenues and jurisdictions, could not long be retained in the rank of subjects. The great earl of 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.

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 usurpation's 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. 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 him temporalities; and during the vacancy of a see, the guardian of the spiritualities was summoned to attend along with the bishops.

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 knight's 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 hydes of land: (Four hydes 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. Spelm Glos, in verbo Feodum. There were 243.606 hydes in England, and 60,215 knights fees; whence it is evident that there were little more than four hydes in each knight's fee.) 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 Domesday-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 dispatch of public business.

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.

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 Domesday, 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. ("Liber homo" anciently signified a gentleman. For scarce any one beside was entirely free. Spelm. Glos. in verbe) 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 in 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 Louis 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. 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. 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. By the English feudal law, the superior lord was prohibited from marrying his female ward to a burgess or a villain; 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.

The great similarity among tile 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 in communities of that dutchy were Rouen and Falaise, which enjoyed their privileges by a grant of Philip Augustus in the year 1207. 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.( Sometimes the historians mention the people, populus as past 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 barongii. 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 spoke of, the proof that they had not then any existence, becomes the more certain and undeniable. These never could make a crowd, so they must have had a regular place assigned them, if they had made a regular part of the legislative body. There were only 130 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) If in the long period of 200 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.

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, 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.

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, to judge between the subjects of different baronies; (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 the Third.) and the curia regis, or king's court, to give sentence among the barons themselves. 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.

The king himself often sat in his court, which always attended his person: he there heard causes, and pronounced judgment; 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. The other chief officers of the crown, the constable, mareschal, seneschal, chamberlain, treasurer, and chancellor, (The Normans introduced the practice of sealing charters: and the chancellor's office was to keep the Great Seal. - Ingulf. Dugd. p.33.34.) 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. 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.

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, had ordered all the pleadings to be in that tongue, and had interwoven with the English jurisprudence, all the maxims and principles which the Norman's, 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 Norman's; 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. 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. 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.

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. Louis, who lived near two centuries after: he empowered his court to receive both appeals 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. And lest the expense or trouble of a journey to court 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. (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.) 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.

THE CHURCH.

The power of the church was another rampart against royal authority; but this defence was also time cause of many mischief's 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 and he so much exalted the power of the clergy, that of 60,215 knights fees, into which he divided England, he placed no less than 28,01.5 under the church. (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.)

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 Norman's introduced the use of sir-names, 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, which became a regular part of jurisprudence, and was conducted with all the order, method, devotion, and solemnity imaginable.(The last instance of these duels is in the 15th of Eliz.: so long did that absurdity exist.) The ideas of chivalry also seem to have been imported by the Norman's: no traces of those fantastic notions are to be found. among the plain and rustic Saxons.

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, wherever 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 everything unfair or unequal in encounters; 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 (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.) and a thousand wonders, which still multiplied during the times 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.

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 licence 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.