The History of England - Vols. 1 to 6 (79 page)

to be constituent members of that body.o
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 explicite, 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 independance 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 expence. 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 independant 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 PLL v6.0 (generated September, 2011)

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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,
p
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.

The general plan of the Anglo-Norman government was, that the Judicial power.

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,
q
to judge between the subjects of different baronies,
r
and the
curia Regis
or king’s court, to give sentence among the barons themselves.
s
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 dependance and subordination.

The king himself often sat in his court, which always attended his person:
t
He there heard causes and pronounced judgment;
u
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.w
The other chief officers of the crown, the constable, mareschal, seneschal, chamberlain, treasurer, and chancellor,
x
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.
y
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.z

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 PLL v6.0 (generated September, 2011)

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augment the royal prerogatives. William, among the other violent changes, which he attempted and effected, had introduced the Norman law into England,
a
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.
b
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.c
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. 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.d
And lest the expence 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.
e
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 power of the Norman kings was also much supported by a

Revenue of the

great revenue; and by a revenue, that was fixed, perpetual, and crown.

independant 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 controul. 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 PLL v6.0 (generated September, 2011)

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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, beside 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:
f
But this law was never regularly observed; which happily rendered in time the crown somewhat more dependant. 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, encreased 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.

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,
g
he pretended to exact tolls on all goods which were there sold.
h
He seized two hogsheads, one before and one behind the mast, from every vessel that imported wine. All goods payed to his customs a proportional part of their value:
i

Passage over bridges and on rivers was loaded with tolls at pleasure:
k
And though the boroughs by degrees brought 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,
l
and the people were thus held in perpetual dependance.

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,
m
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.

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;
n
and it was a usual artifice of the king’s 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.
o
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.p
It was a shilling paid every three years by each hearth, to PLL v6.0 (generated September, 2011)

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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.
q