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 . 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 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 ; 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. 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 . 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. 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.]