Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

LECTURE XVIII.

The constitution of a feudal monarchy—The dignity and revenues of the King—An examination of his power as to the raising of taxes and subsidies.

As, in my former lectures, I drew a general sketch of the nature and form of the governments that prevailed among the northern nations whilst they remained in Germany, and what alterations ensued on their being removed within the limits of the Roman empire, it will be now proper to shew, in as brief a manner as may consist with clearness, the nature and constitution of a feudal monarchy, when estates were become hereditary, the several constituent parts thereof, and what were the chief of the peculiar rights and privileges of each part. This research will be of use, not only to understand our present constitution, which is derived from thence, but to make us admire and esteem it, when we compare it with that which was its original, and observe the many improvements it has undergone. From hence, likewise, may be determined that famous question, whether our kings were originally absolute, and all our privileges only concessions of theirs; or whether the chief of them are not originally inherent rights, and coeval with the monarchy; not, indeed, in all the subjects, for that, in old times, was not the case, but in all that were freemen, and, as all are such now, do consequently belong to all.

To begin with the king, the head of the political body. His dignity and power were great, but not absolute and unlimited. Indeed, it was impossible, in the nature of things, even if it had been declared so by law, that it could have continued in that state, when he had no standing force, and the sword was in the hand of the people. And yet it must be owned his dignity was so high, as to give a superficial observer some room, if he is partially inclined, to lean to that opinion. All the lands in his dominions were holden of him. For, by degrees, the allodia had been changed into, and supposed to have been derived from, his original grant, and consequently revertible to him. But then, the land proprietors had (on fulfilling the conditions they were bound to) a secure and permanent interest in their possessions. He could neither take them away at pleasure, nor lay taxes or talliages on them by arbitrary will, which would have been little different. Since, in Magna Charta, we find the people insisting that the king had no right to assess the quantity of escuage, which was a pecuniary commutation for military service, nor to lay talliages on his other subjects, but that both must be done in parliament. He was a necessary party to the making new laws, and to the changing and abrogating old ones; and from him they received their binding force, insomuch that many old laws, tho’ passed in parliament, run in the king’s name only. For, in those days, persons were more attentive to substance than forms; and it was not then even suspected, in any nation of Europe, that any king would arrogate to himself a power so inconsistent with the original freedom of the German nations. Nay, in France, to this day, the king’s edicts are not laws, until registered in parliament, which implies the consent of the people, tho’ that consent is too often extorted by the violent power that monarch has assumed over the persons and liberty of the members of that body[234].

The dignity of the king was supported, in the eyes of the people, not only by the splendor of his royalty, but by the lowly reverence paid him by the greatest of his lords. At solemn feasts they waited on him on the knee, or did other menial offices about his person, as their tenures required, and did their homage and fealty with the same lowly and humiliating circumstances that the meanest of their vassals paid to them. His person likewise was sacred, and guarded by the law, which inflicted the most horrible punishment for attempts against him; neither was he to be resisted, or accountable for any private injury done personally by himself, on any account whatsoever. For the state thought it better to suffer a few personal wrongs to individuals, than to endanger the safety of the whole, by rendering the head insecure.

But the greatest of the kingly power consisted in his being entirely entrusted with the executive part of the government, both at home and abroad. At home justice was administered in his name, and by officers of his appointment. He had, likewise, the disposal of all the great offices of the state, with an exception of such as had been granted by his predecessors in fee, and of all other offices and employments exercised in the kingdom immediately under him. Abroad he made war and peace, treaties, and truces as he pleased. He led his armies in person, or appointed commanders; and exercised, in time of war, that absolute power over his armies that is essential to their preservation and discipline. But how was he enabled to support the expence of the government, or to provide for the defence of the kingdom, or carry on a foreign war; since, if he was not furnished in that respect, these high-sounding prerogatives had been but empty names, and the state might have perished? and if he could at pleasure levy the necessary sums, he being sole judge of the necessity, both as to occasion and quantity, as Charles the First claimed in the case of ship-money, the state of the subject was precarious, and the king would have been as absolute a monarch as the present king of France or Spain[235].

But abundant provision was made on this head, and that without over-burdening the subject, for supporting the ordinary expences of the government. A vast demesne was set apart to the king, amounting, in England, to one thousand four hundred and twenty-two manors, as also many other lands, which had not been erected into manors. Besides these, he had the profits of all his feudal tenures, his worships, marriages, and reliefs; the benefit of escheats, either upon failure of heirs or forfeiture; the goods of felons and traitors; the profits of his courts of justice; besides many other casualties, which amounted to an immense revenue; insomuch, that, we are informed, that William the Conqueror had L. 1061: 10s. a-day, that is, allowing for the comparative value of money, near four millions a-year; so that Fortescue might well say, that, originally, the king of England was the richest king in Europe. Such a sum was not only sufficient for the occasions of peace, but out of it he might spare considerably for the exigencies of war[236].

This revenue, however great, was not sufficient to support a war of any importance and continuance, besides the extraordinary expence of government. It remains, therefore, to see what provision this constitution made, in addition to what the monarch might spare, for the defence of England, as it might be attacked either by land or sea. For the former, every sea-port was, in proportion to its ability, obliged to find, in time of danger, at their own expence, one or more ships properly furnished with men and arms; which, joined to such other ships as the king hired, were, in general, an overmatch for the invaders. But if the enemy had got footing in the country, the defence at land was by the knights or military tenants, who were obliged to serve on horseback in any part of England; and by the socage tenants, or infantry, who, in case of invasion, were likewise obliged to serve, but not out of their own country, unless they themselves pleased, and then they were paid by the king.

With respect to carrying on offensive war into the enemy’s country, the king of England had great advantages over any other feudal monarch. In the other feudal kingdoms the military vassals were not obliged to serve in any offensive war, unless it was just, the determination of which point was in themselves; but William the Conqueror obliged all to whom he gave tenures to serve him ubicunque; and though he had not above three hundred, if so many, immediate military tenants under him, yet these were obliged, on all occasions, to furnish sixty thousand knights compleatly equipped, and ready to serve forty days at their own expence. If he wanted their service longer, he was obliged to obtain it on what terms he could. There is, therefore, no reason to wonder that the king of England, though master of so comparatively small a territory, was, in general, an overmatch, in those early times, for the power of France. As for infantry in his foreign wars, he had none obliged to attend him. Those he had were socage tenants, whose services were certain; so that he was obliged to engage, and pay them, as hired soldiers. As the socage tenants in his dominions had a good share of property, and enjoyed it without oppression, it is no wonder the English archers in those days had a gallant spirit, and were as redoubtable as the English infantry is at present.