The History of England in Three Volumes, Vol. I., Part B. / From Henry III. to Richard III.

by David Hume

* Heming. vol. i. p. 49.
** Trivet, p. 284. Chron. Dunst. vol. ii. p. 642.
*** Rymer, vol. ii. p. 680, 681, 695, 697. Heming. vol. i. p.
76. Trivet, i, 285.

The expenses attending these multiplied wars of Edward, and his preparations for war, joined to alterations which had insensibly taken place in the general state of affairs, obliged him to have frequent recourse to parliamentary supplies, introduced the lower orders of the state into the public councils, and laid the foundations of great and important changes in the government.

Though nothing could be worse calculated for cultivating the arts of peace, or maintaining peace itself, than the long subordination of vassalage from the king to the meanest gentleman, and the consequent slavery of the lower people, evils inseparable from the feudal system, that system was never able to fix the state in a proper warlike posture, or give it the full exertion of its power for defence, and still less for offence, against a public enemy. The military tenants, unacquainted with obedience, unexperienced in war, held a rank in the troops by their birth, not by their merits or services; composed a disorderly and consequently a feeble army; and during the few days which they were obliged by their tenures to remain in the field, were often more formidable to their own prince than to foreign powers, against whom they were assembled. The sovereigns came gradually to disuse this cumbersome and dangerous machine, so apt to recoil upon the hand which held it; and exchanging the military service for pecuniary supplies, enlisted forces by means of a contract with particular officers, (such as those the Italians denominate “condottieri,”) whom they dismissed at the end of the war.[*] The barons and knights themselves often entered into these engagements with the prince; and were enabled to fill their bands, both by the authority which they possessed over their vassals and tenants, and from the great numbers of loose, disorderly people whom they found on their estates, and who willingly embraced an opportunity of gratifying their appetite for war and rapine.

Meanwhile the old Gothic fabric, being neglected, went gradually to decay. Though the Conqueror had divided all the lands of England into sixty thousand knights’ fees, the number of these was insensibly diminished by various artifices; and the king at last found that, by putting the law in execution, he could assemble a small part only of the ancient force of the kingdom. It was a usual expedient for men who held of the king or great barons by military tenure, to transfer their land to the church, and receive it back by another tenure, called frankalmoigne, by which they were not bound to per form any service.[**] A law was made against this practice; but the abuse had probably gone far before it was attended to, and probably was not entirely corrected by the new statute, which, like most laws of that age, we may conjecture to have been but feebly executed by the magistrate against the perpetual interest of so many individuals. The constable and mareschal, when they mustered the armies, often in a hurry, and for want of better information, received the service of a baron for fewer knights’ fees than were due by him; and one precedent of this kind was held good against the king, and became ever after a reason for diminishing the service.[***]

* Cotton’s Abr. p. 11.
** Madox, Baronia Anglica, p. 114.
*** Madox, Bar. Ang. p 115.

The rolls of knights’ fees were inaccurately kept; no care was taken to correct them before the armies were summoned into the field,[*] it was then too late to think of examining records and charters; and the service was accepted on the footing which the vassal himself was pleased to acknowledge, after all the various subdivisions and conjunctions of property had thrown an obscurity on the nature and extent of his tenure.[**] It is easy to judge of the intricacies which would attend disputes of this kind with individuals; when even the number of military fees belonging to the church, whose property way fixed and unalienable, became the subject of controversy; and we find in particular, that when the bishop of Durham was charged with seventy knights’ fees for the aid levied on occasion of the marriage of Henry II.‘s daughter to the duke of Saxony, the prelate acknowledged ten, and disowned the other sixty.[***] It is not known in what mariner this difference was terminated; but had the question been concerning an armament to defend the kingdom, the bishop’s service would probably have been received without opposition for ten fees; and this rate must also have fixed all his future payments. Pecuniary scutages, therefore, diminished as much as military services;[****] other methods of filling the exchequer, as well as the armies, must be devised: new situations produced new laws and institutions; and the great alterations in the finances and military power of the crown, as well as in private property, were the source of equal innovations in every part of the legislature or civil government.

* We hear only of one king, Henry II., who took this pains;
and the record, called Liber Niger Scaccarii, was the result
of it.
** Madox, Bar. Ang. p. 116.
*** Madox, p. 122. Hist. of the Exch. p. 404.
**** In order to pay the sum of one hundred thousand marks, as
King Richard’s ransom, twenty shillings were imposed on each
knight’s fee. Had the fees remained on the original footing,
as settled by the Conqueror, this scutage would have
amounted to ninety thousand marks, which was nearly the sum
required; but we find that other grievous taxes were imposed
to complete it; a certain proof that many frauds and abuses
had prevailed in the roll of knights fees.

The exorbitant estates conferred by the Norman on his barons and chieftains, remained not long entire and unimpaired. The landed property was gradually shared out into more hands; and those immense baronies were divided, either by provisions to younger children, by partitions among co-heirs, by sale, or by escheating to the king, who gratified a great number of his courtiers by dealing them out among them in smaller portions. Such moderate estates, as they required economy, and confined the proprietors to live at home, were better calculated for duration; and the order of knights and small barons grew daily more numerous, and began to form a very respectable rank or order in the state. As they were all immediate vassals of the crown by military tenure, they were, by the principles of the feudal law, equally entitled with the greatest barons to a seat in the national or general councils; and this right, though regarded as a privilege which the owners would not entirely relinquish, was also considered as a burden which they desired to be subjected to on extraordinary occasions only. Hence it was provided in the charter of King John, that, while the great barons were summoned to the national council by a particular writ, the small barons, under which appellation the knights were also comprehended, should only be called by a general summons of the sheriff. The distinction between great and small barons, like that between rich and poor, was not exactly defined; but, agreeably to the inaccurate genius of that age, and to the simplicity of ancient government, was left very much to be determined by the discretion of the king and his ministers. It was usual for the prince to require, by a particular summons, the attendance of a baron in one parliament, and to neglect him in future parliaments;[*] nor was this uncertainty ever complained of as an injury. He attended when required: he was better pleased on other occasions to be exempted from the burden: and as he was acknowledged to be of the same order with the greatest barons, it gave them no surprise to see him take his seat in the great council, whether he appeared of his own accord, or by a particular summons from the king. The barons by writ, therefore, began gradually to intermix themselves with the barons by tenure; and, as Camden tells us,[**] from an ancient manuscript now lost, that after the battle of Evesham, a positive law was enacted, prohibiting every baron from appearing in parliament, who was not invited thither by a particular summons, the whole baronage of England held thenceforward their seat by writ, and this important privilege of their tenures was in effect abolished. Only where writs had been regularly continued for some time in one great family, the omission of them would have been regarded as an affront, and even as an injury.

* Chancellor West’s Inquiry into the Manner of creating
Peers p. 43, 46, 47, 55.
** In Britain. p 122.

A like alteration gradually took place in the order of earls who were the highest rank of barons. The dignity of an earl, like that of a baron, was anciently territorial and official:[*] he exercised jurisdiction within his county: he levied the third of the fines to his own profit: he was at once a civil and a military magistrate: and though his authority, from the time of the Norman conquest, was hereditary in England, the title was so much connected with the office, that where the king intended to create a new earl, he had no other expedient than to erect a certain territory into a county or earldom, and to bestow it upon the person and his family.[**] But as the sheriffs, who were the vicegerents of the earls, were named by the king, and removable at pleasure, he found them more dependent upon him; and endeavored to throw the whole authority and jurisdiction of the office into their hands. This magistrate was at the head of the finances, and levied all the king’s rents within the county: he assessed at pleasure the talliages of the inhabitants in royal demesne: he had usually committed to him the management of wards, and often of escheats: he presided in the lower courts of judicature: and thus, though inferior to the earl in dignity, he was soon considered, by this union of the judicial and fiscal powers, and by the confidence reposed in him by the king, as much superior to him in authority, and undermined his influence within his own jurisdiction.[***] It became usual, in creating an earl, to give him a fixed salary, commonly about twenty pounds a year, in lieu of his third of the fines: the diminution of his power kept pace with the retrenchment of his profit: and the dignity of earl, instead of being territorial and official, dwindled into personal and titular. Such were the mighty alterations which already had fully taken place, or were gradually advancing, in the house of peers; that is, in the parliament: for there seems anciently to have been no other house.