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 : 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 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 . 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 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.]