perty of it, and it would have been deemed incongruous to Appendix 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."

b

If it be unreasonable to think that the vassals of a barony, though their tenure was military and noble and ho nourable, 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 Domesday, 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 and 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 sepa

a Spelm, Gloss. in verb. Baro. b Liber homo anciently signified a gen-、 leman: For scarce any one beside was entirely free. Spelm. Gloss, in verbo.

Appendix rate jurisdiction.

II.

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. 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. By the English feudal law, the superior lord was prohibited from marrying his female ward to a burgess or a villain; 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.

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 dutchy were Rouen and Falaise, which enjoyed their privileges by a grant of Philip Augustus in the year 1207.h 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 com

e Du Cange's Gloss. in verb. Commune, Communitas. d Guibertus de vita sua lib. ii. c. 7. e Stat. of Merton, 1235. cap. 6. f Hollingshed, vol. ii. p. 15. Madox's Baron. Angl. p. 19. h Norman. Du Chesnii, p. 1066. Du Cange, Gloss. in verb. Commune

II.

mons to be constituent members of that body. If in the Appendix long period of 200 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.

IT was probably the example of the French baron's 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 of England and the liberty of the commons were originally the growth of that foreign country.

i Sometimes the historians mention the people, populus, as a part of the par liament; 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 spoke 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 150 boroughs who received writs of summons from Edward 1. 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. D

VOL. II.

Appendix

II.

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 subvassals 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,' 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, ei

1 Dugd. Orig. Jurid. p. 15. Spelm. Gloss in verbo Parliamentum.

II

ther in resisting a foreign enemy, or reducing his rebel- Appendix lious 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..

power.

THE general plan of the Anglo-Norman government Judicial 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," to judge between the subjects of different baronies ;" and the curia regis, or king's court, to give sentence among the barons themselves. 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.

THE king himself often sat in his court, which always attended his person :P 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. The other chief officers of the crown, the constable, mareschal, seneschal, chamberlain, treasurer,

r.

m Ang. Sacra. vol. i. p. 354, &c. Dug. Orig. Jurid. p. 27. 29. Madox, Hist of Exch. p. 75, 76. Spelm. Gloss. in verbo Hundred..

n None of the feudal governments in Europe had such institutions as the county courts, which the 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 sheriff's 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. o Brady, Pref. p. 143. p Madox, Hist. of Exch. p. 103.

ii. c. 9. § 1. c. 10. $1.

r Spelm. Gloss. in verbo Justiciarü.

q Bracton, lib