The History of England Part 29

The prejudices against this prince were so violent, that he was believed to have sent an emba.s.sy to the Miramoulin, or Emperor of Morocco, and to have offered to change his religion and become Mahometan, in order to purchase the protection of that monarch. But though this story is told us, on plausible authority, by Matthew Paris [f], it is in itself utterly improbable; except that there is nothing so incredible but may be believed to proceed from the folly and wickedness of John.

[FN [f] P. 169.]

The monks throw great reproaches on this prince for his impiety and even infidelity; and as an instance of it, they tell us, that having one day caught a very fat stag, he exclaimed, HOW PLUMP AND WELL FED IS THIS ANIMAL! AND YET, I DARE SWEAR, HE NEVER HEARD Ma.s.s [g]. This sally of wit upon the usual corpulency of the priests, more than all his enormous crimes and iniquities, made him pa.s.s with them for an atheist.

John left two legitimate sons behind him; Henry, born on the first of October, 1207, and now nine years of age; and Richard, born on the sixth of January, 1209; and three daughters; Jane, afterwards married to Alexander King of Scots; Eleanor, married first to William Mareschal the younger, Earl of Pembroke, and then to Simon Mountfort, Earl of Leicester; and Isabella, married to the Emperor Frederic II.

All these children were born to him by Isabella of Angoulesme, his second wife. His illegitimate children were numerous, but none of them were anywise distinguished.

It was this king who, in the ninth year of his reign, first gave by charter, to the city of London, the right of electing, annually, a mayor out of its own body, an office which was till now held for life.

He gave the city also power to elect and remove its sheriffs at pleasure, and its common-councilmen annually. London-bridge was finished in this reign. The former bridge was of wood. Maud, the empress, was the first that built a stone bridge in England.

[FN [g] M. Paris, p. 170.]

APPENDIX II.

THE FEUDAL AND ANGLO-NORMAN GOVERNMENT AND MANNERS.

ORIGIN OF THE FEUDAL LAW.--ITS PROGRESS.--FEUDAL GOVERNMENT OF ENGLAND.--THE FEUDAL PARLIAMENT.--THE COMMONS.--JUDICAL POWER.-- REVENUE OF THE CROWN.--COMMERCE.--THE CHURCH.--CIVIL LAWS.--MANNERS.

The feudal law is the chief foundation, both of the political government and of the jurisprudence established by the Normans in England. Our subject therefore requires, that we should form a just idea of this law, in order to explain the state, as well of that kingdom, as of all other kingdoms of Europe, which, during those ages, were governed by similar inst.i.tutions. And though I am sensible, that I must here repeat many observations and reflections which have been communicated by others [a]; yet, as every book, agreeably to the observation of a great historian [b], should be as complete as possible within itself, and should never refer, for any thing material, to other books, it will be necessary, in this place, to deliver a short plan of that prodigious fabric, which, for several centuries, preserved such a mixture of liberty and oppression, order and anarchy, stability and revolution, as was never experienced in any other age, or any other part of the world.

[FN [a] L'Esprit des Loix. Dr. Robertson's History of Scotland. [b]

Padre Paolo, Hist. Conc. Trid.]

[MN Origin of the feudal law.]

After the northern nations had subdued the provinces of the Roman empire, they were obliged to establish a system of government which might secure their conquests, as well against the revolt of their numerous subjects, who remained in the provinces, as from the inroads of other tribes, who might be tempted to ravish from them their new acquisitions. The great change of circ.u.mstances made them here depart from those inst.i.tutions which prevailed among them while they remained in the forests of Germany; yet it was still natural for them to retain, in their present settlement, as much of their ancient customs as was compatible with their new situation.

The German governments, being more a confederacy of independent warriors than a civil subjection, derived their princ.i.p.al force from many inferior and voluntary a.s.sociations, which individuals formed under a particular head or chieftain, and which it became the highest point of honour to maintain with inviolable fidelity. The glory of the chief consisted in the number, the bravery, and the zealous attachment of his retainers: the duty of the retainers required, that they should accompany their chief in all wars and dangers, that they should fight and perish by his side, and that they should esteem his renown or his favour a sufficient recompense for all their services [c]. The prince himself was nothing but a great chieftain, who was chosen from among the rest on account of his superior valour or n.o.bility; and who derived his power from the voluntary a.s.sociation or attachment of the other chieftains.

[FN [c] Tacit. de Mor. Germ.]

When a tribe, governed by these ideas, and actuated by these principles, subdued a large territory, they found, that though it was necessary to keep themselves in a military posture, they could neither remain united in a body, nor take up their quarters in several garrisons, and that their manners and inst.i.tutions debarred them from using these expedients; the obvious ones, which, in a like situation, would have been employed by a more civilized nation. Their ignorance in the art of finances, and perhaps the devastations inseparable from such violent conquests, rendered it impracticable for them to levy taxes sufficient for the pay of numerous armies; and their repugnance to subordination, with their attachment to rural pleasures, made the life of the camp or garrison, if perpetuated during peaceful times, extremely odious and disgustful to them. They seized, therefore, such a portion of the conquered lands as appeared necessary; they a.s.signed a share for supporting the dignity of their prince and government; they distributed other parts, under the t.i.tle of fiefs, to the chiefs; these made a new part.i.tion among their retainers: the express condition of all these grants was, that they might be resumed at pleasure, and that the possessor, so long as he enjoyed them, should still remain in readiness to take the field for the defence of the nation. And though the conquerors immediately separated, in order to enjoy their new acquisitions, their martial disposition made them readily fulfil the terms of their engagement: they a.s.sembled on the first alarm; their habitual attachment to the chieftain made them willingly submit to his command; and thus a regular military force, though concealed, was always ready to defend, on any emergence, the interest and honour of the community.

We are not to imagine that all the conquered lands were seized by the northern conquerors; or that the whole of the land thus seized was subjected to those military services. This supposition is confuted by the history of all the nations on the continent. Even the idea given us of the German manners by the Roman historian may convince us, that that bold people would never have been content with so precarious a subsistence, or have fought to procure establishments which were only to continue during the good pleasure of their sovereign. Though the northern chieftains accepted of lands, which, being considered as a kind of military pay, might be resumed at the will of the king or general; they also took possession of estates, which being hereditary and independent, enabled them to maintain their native liberty, and support, without court favour, the honour of their rank and family.

[MN Progress of the feudal law.]

But there is a great difference, in the consequences, between the distribution of a pecuniary subsistence, and the a.s.signment of lands burdened with the condition of military service. The delivery of the former, at the weekly, monthly, or annual terms of payment, still recalls the idea of a voluntary gratuity from the prince, and reminds the soldier of the precarious tenure by which he holds his commission.

But the attachment naturally formed with a fixed portion of land gradually begets the idea of something like property, and makes the possessor forget his dependent situation, and the condition which was at first annexed to the grant. It seemed equitable that one who had cultivated and sowed a field should reap the harvest: hence fiefs, which were at first entirely precarious, were soon made annual. A man who had employed his money in building, planting, or other improvements, expected to reap the fruits of his labour or expense: hence they were next granted during a term of years. It would be thought hard to expel a man from his possessions, who had always done his duty, and performed the conditions on which he originally received them: hence the chieftains, in a subsequent period, thought themselves ent.i.tled to demand the enjoyment of their feudal lands during life.

It was found that a man would more willingly expose himself in battle, if a.s.sured that his family should inherit his possessions, and should not be left by his death in want and poverty: hence fiefs were made hereditary in families, and descended, during one age, to the son, then to the grandson, next to the brothers, and afterwards to more distant relations [d]. The idea of property stole in gradually upon that of military pay; and each century made some sensible addition to the stability of fiefs and tenures.

[FN [d] Lib. Feud. lib. I. t.i.t. 1.]

In all these successive acquisitions, the chief was supported by his va.s.sals; who, having originally a strong connexion with him, augmented by the constant intercourse of good offices, and by the friends.h.i.+p arising from vicinity and dependence, were inclined to follow their leader against all his enemies, and voluntarily, in his private quarrels, paid him the same obedience, to which, by their tenure, they were bound in foreign wars. While he daily advanced new pretensions to secure the possession of his superior fief, they expected to find the same advantage, in acquiring stability to their subordinate ones; and they zealously opposed the intrusion of a new lord, who would be inclined, as he was fully ent.i.tled, to bestow the possession of their lands on his own favourites and retainers. Thus the authority of the sovereign gradually decayed; and each n.o.ble, fortified in his own territory by the attachment of his va.s.sals, became too powerful to be expelled by an order from the throne; and he secured by law what he had at first acquired by usurpation.

During this precarious state of the supreme power, a difference would immediately be experienced between those portions of territory which were subjected to the feudal tenures, and those which were possessed by an allodial or free t.i.tle. Though the latter possessions had at first been esteemed much preferable, they were soon found, by the progressive changes introduced into public and private law, to be of an inferior condition to the former. The possessors of a feudal territory, united by a regular subordination under one chief, and by the mutual attachments of the va.s.sals, had the same advantages over the proprietors of the other, that a disciplined army enjoys over a dispersed mult.i.tude; and were enabled to commit with impunity all injuries on their defenceless neighbours. Every one, therefore, hastened to seek that protection which he found so necessary; and each allodial proprietor, resigning his possessions into the hands of the king, or of some n.o.bleman respected for power or valour, received them back with the condition of feudal services [e], which, though a burden somewhat grievous, brought him ample compensation, by connecting him with the neighbouring proprietors, and placing him under the guardians.h.i.+p of a potent chieftain. The decay of the political government thus necessarily occasioned the extension of the feudal: the kingdoms of Europe were universally divided into baronies, and these into inferior fiefs: and the attachment of va.s.sals to their chief, which was at first an essential part of the German manners, was still supported by the same causes from which it at first arose; the necessity of mutual protection, and the continued intercourse between the head and the members, of benefits and services.

[FN [e] Marculf. Form. 47. apud Lindenbr. p. 1238.]

But there was another circ.u.mstance which corroborated these feudal dependencies, and tended to connect the va.s.sals with their superior lord by an indissoluble bond of union. The northern conquerors, as well as the more early Greeks and Romans, embraced a policy which is unavoidable to all nations that have made slender advances in refinement: they every where united the civil jurisdiction with the military power. Law, in its commencement, was not an intricate science, and was more governed by maxims of equity, which seem obvious to common sense, than by numerous and subtle principles, applied to a variety of cases by profound reasonings from a.n.a.logy. An officer, though he had pa.s.sed his life in the field, was able to determine all legal controversies which could occur within the district committed to his charge; and his decisions were the most likely to meet with a prompt and ready obedience, from men who respected his person, and were accustomed to act under his command.

The profit arising from punishments, which were then chiefly pecuniary, was another reason for his desiring to retain the judicial power; and when his fief became hereditary, this authority, which was essential to it, was also transmitted to his posterity. The counts and other magistrates, whose power was merely official, were tempted, in imitation of the feudal lords, whom they resembled in so many particulars, to render their dignity perpetual and hereditary; and in the decline of the regal power, they found no difficulty in making good their pretensions. After this manner, the vast fabric of feudal subordination became quite solid and comprehensive; it formed every where an essential part of the political const.i.tution; and the Norman and other barons, who followed the fortunes of William, were so accustomed to it that they could scarcely form an idea of any other species of civil government [f].

[FN [f] The ideas of the feudal government were so rooted, that even lawyers, in those ages, could not form a notion of any other Const.i.tution REGNUM (says Bracton, lib. 2. cap. 34.) QUOD EX COMITATIBUS ET BARONIBUS DICITUR ESSE CONSt.i.tUTUM.]

The Saxons who conquered England, as they exterminated the ancient inhabitants, and thought themselves secured by the sea against new invaders, found it less requisite to maintain themselves in a military posture: the quant.i.ty of land which they annexed to offices seems to have been of small value; and for that reason continued the longer in its original situation, and was always possessed during pleasure by those who were intrusted with the command. These conditions were too precarious to satisfy the Norman barons, who enjoyed more independent possessions and jurisdictions in their own country; and William was obliged, in the new distribution of land, to copy the tenures which were now become universal on the continent. England of a sudden became a feudal kingdom [g]; and received all the advantages, and was exposed to all the inconveniences, incident to that species of civil polity.

[FN [g] c.o.ke, Comm. on Lit. p. 1, 2. ad sect. 1.]

[MN The feudal government of England.]

According to the principles of the feudal law, the king was the supreme lord of the landed property: all possessors, who enjoyed the fruits or revenue of any part of it, held those privileges, either mediately or immediately, of him; and their property was conceived to be in some degree conditional [h]. The land was still apprehended to be a species of BENEFICE, which was the original conception of a feudal property; and the va.s.sal owed, in return for it, stated services to his baron, as the baron himself did for his land to the crown. The va.s.sal was obliged to defend his baron in war; and the baron, at the head of his va.s.sals, was bound to fight in defence of the king and kingdom. But besides these military services, which were casual, there were others imposed of a civil nature, which were more constant and durable.

[FN [h] Somner of Gavelk. p. 109. Smith de Rep. lib. 3. cap. 10.]

The northern nations had no idea that any man, trained up to honour, and inured to arms, was ever to be governed, without his own consent, by the absolute will of another; or that the administration of justice was ever to be exercised by the private opinion of any one magistrate, without the concurrence of some other persons, whose interest might induce them to check his arbitrary and iniquitous decisions. The king, therefore, when he found it necessary to demand any service of his barons or chief tenants, beyond what was due by their tenures, was obliged to a.s.semble them in order to obtain their CONSENT: and when it was necessary to determine any controversy which might arise among the barons themselves, the question must be discussed in their presence, and be decided according to their opinion or ADVICE. In these two circ.u.mstances of consent and advice consisted chiefly the civil services of the ancient barons; and these implied all the considerable incidents of government. In one view, the barons regarded this attendance as their princ.i.p.al PRIVILEGE; in another, as a grievous BURDEN. That no momentous affairs could be transacted without their consent and advice was in GENERAL esteemed the great security of their possessions and dignities: but as they reaped no immediate profit from their attendance at court, and were exposed to great inconvenience and charge by an absence from their own estates, every one was glad to exempt himself from each PARTICULAR exertion of this power; and was pleased both that the call for that duty should seldom return upon him, and that others should undergo the burden in his stead. The king, on the other hand, was usually anxious, for several reasons, that the a.s.sembly of the barons should be full at every stated or casual meeting: this attendance was the chief badge of their subordination to his crown, and drew them from that independence which they were apt to affect in their own castles and manors; and where the meeting was thin or ill attended, its determinations had less authority, and commanded not so ready an obedience from the whole community.

The case was the same with the barons in their courts, as with the king in the supreme council of the nation. It was requisite to a.s.semble the va.s.sals, in order to determine by their vote any question which regarded the barony; and they sat along with the chief in all trials, whether civil or criminal, which occurred within the limits of their jurisdiction. They were bound to pay suit and service at the court of their baron: and as their tenure was military, and consequently honourable, they were admitted into his society, and partook of his friends.h.i.+p. Thus, a kingdom was considered only as a great barony, and a barony as a small kingdom. The barons were peers to each other in the national council, and, in some degree, companions to the king: the va.s.sals were peers to each other in the court of barony, and companions to their baron [i].

[FN [i] Du Cange, Gloss. in verb. PAR Cujac. Commun. in Lib. Feud.

lib. I. t.i.t. p. 18. Spellm. Gloss. in verb.]

But though this resemblance so far took place, the va.s.sals, by the natural course of things, universally, in the feudal const.i.tutions, fell into a greater subordination under the baron, than the baron himself under his sovereign; and these governments had a necessary and infallible tendency to augment the power of the n.o.bles. The great chief, residing in his country-seat, which he was commonly allowed to fortify, lost, in a great measure, his connexion or acquaintance with the prince; and added every day new force to his authority over the va.s.sals of the barony. They received from him education in all military exercises: his hospitality invited them to live and enjoy society in his hall: their leisure, which was great, made them perpetual retainers on his person, and partakers of his country sports and amus.e.m.e.nts: they had no means of gratifying their ambition but by making a figure in his train: his favour and countenance was their greatest honour: his displeasure exposed them to contempt and ignominy: and they felt every moment the necessity of his protection, both in the controversies which occurred with other va.s.sals, and, what was more material, in the daily inroads and injuries which were committed by the neighbouring barons. During the time of general war, the sovereign, who marched at the head of his armies, and was the great protector of the state, always acquired some accession to his authority, which he lost during the intervals of peace and tranquillity: but the loose police, incident to the feudal const.i.tutions, maintained a perpetual, though secret hostility, between the several members of the state; and the va.s.sals found no means of securing themselves against the injuries to which they were continually exposed, but by closely adhering to their chief, and falling into a submissive dependence upon him.

If the feudal government was so little favourable to the true liberty even of the military va.s.sal, it was still more destructive of the independence and security of the other members of the state, or what, in a proper sense, we call the people. A great part of them were SERFS, and lived in a state of absolute slavery or villanage: the other inhabitants of the country paid their rents in services, which were in a great measure arbitrary; and they could expect no redress of injuries, in a court of barony, from men who thought they had a right to oppress and tyrannize over them. The towns were situated either within the demesnes of the king, or the lands of the great barons, and were almost entirely subjected to the absolute will of their master.

The languis.h.i.+ng state of commerce kept the inhabitants poor and contemptible; and the political inst.i.tutions were calculated to render that poverty perpetual. The barons and gentry, living in rustic plenty and hospitality, gave no encouragement to the arts, and had no demand for any of the more elaborate manufactures: every profession was held in contempt but that of arms: and if any merchant or manufacturer rose by industry and frugality to a degree of opulence, he found himself but the more exposed to injuries, from the envy and avidity of the military n.o.bles.

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 const.i.tution which bound him, as a va.s.sal, 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 va.s.sals. 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 n.o.bles as his immediate rivals, a.s.sumed 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 circ.u.mstance, 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 circ.u.mstance 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 va.s.sals, 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 lords.h.i.+ps: 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 Yorks.h.i.+re: Todenei, 81: Roger BiG.o.d, 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 t.i.tle; adding, that William the b.a.s.t.a.r.d 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 const.i.tuent members of this council. They sat by a double t.i.tle: 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 t.i.tles 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 t.i.tle to be derived merely from ancient possession.

When a bishop was elected, he sat in Parliament before the king had made him rest.i.tution 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 const.i.tuent 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 va.s.sals 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 va.s.sals 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 cla.s.s 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 [s]: but where a man held of the king only one or two knights' fees, he was still an immediate va.s.sal of the crown, and as such had a t.i.tle 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 t.i.tle, 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 a.s.sembly was never likely to become too numerous for the despatch of public business.

[FN [s] 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, const.i.tuent 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 a.s.sembly.

The va.s.sals 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 va.s.sals possessed a subordinate rank within their district; the baron enjoyed a superior dignity in the great a.s.sembly: 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 inst.i.tutions, 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.]