lopement of that system under the Anglo-Saxon monarchy, and those who deny that there was the slightest approximation to it. At ali events, the Saxon vassals by choice-the usual way, indeed, by which, on the continent, allodial was changed into feudal property, and likewise entitled, on the death of the overlord, to select any other superior they thought fit as well as those vassals whose relation to their superior was of a more feudal character, presenting at least the appearance of obligation to military service, were, in the Norman times, equally brought under the control of strictly feudal relationship.

Notwithstanding the transfer of a large portion of the country to the Norman leaders, the introduction of institutions of Norman origin,and in particular, the new modelling, to a great extent, of the tenure by which land was held,—many of the old customs were retained, especially those which related to the internal administration of the executive government, and the distribution of justice. The conquest effected no radical change in the principles of the constitution; and it is certain, that in the reign of the Conqueror and his sons, the county and the hundred courts, perhaps the most remarkable features of Saxon legislation, remained in full activity; and upon the whole, the ancient laws do not seem to have been altered even so far as might have been looked for from the violent change which had taken place, and the rigorous precautions adopted to quell frequent insurrections. The Norman settlement, in short, was the substitution of a rew oligarchy for an old one; not the entrance of a nation after the expulsion of another, as had been the case when the Saxons came into Britain. But when property was subdivided in the course of a few reigns, the body of the people rose in importance; and the genius of Saxon equality, which had continued to lurk in the county and hundred courts, acquired additional vigour. It has been already noticed, that though the lands held of the crown were almost entirely in the hands of the new race, many of the Saxon proprietors held their former possessions under the king's grantees. The subdivision of the lands belonging to the crown-tenants, led to an increased influence amongst these other portions of the community. Normandy, too, soon came to be regarded as a province of England; nor did it remain long subject to the English kings. It was separated from England in the reign of William Rufus, and during that of Henry I., till the defeat and captivity of his brother Robert; again in Stephen's reign; and finally in that of John, whose son and successor, Henry III., solemnly renounced all claim to the dukedom of Normandy, in favour of the crown of France. The great body of the Normans, therefore, who were little inclined to submit to arbitrary rule, looked to England as their native country, and united with the English in forcing from their sovereigns repeated promises to adhere to the old Saxon laws, a demand which at least shows a traditional belief that these laws were more equitable than many of the customs which the conquest had introduced, and evinced a determination to impose more effectual checks upon the royal authority than had been in operation for some time after the conquest.

The immediate successors of the Conqueror were the most arbitrary in their conduct; but none of them reached the height of power which

Doomsday, 287, a. 6, 7, 129.—Lingard's Hist. of England, i. 458.

he attained. Though the government of William Rufus was lawless— the monks have, however, exhibited it in the darkest colours-yet, being less popular among the nobles than his elder brother, Robert, duke of Normandy, whom he excluded from the throne, he found it necessary to throw himself in a great measure upon the support of his English subjects. If Henry I. changed his policy in this respect before the close of his reign, he was, on his accession, perhaps from the greater imperfection of his title, still more anxious than Rufus had been to conciliate their good-will, and, as the first act of his administration, granted a charter, in which he engaged that all the bad customs by which the kingdom had been oppressed, should be removed. The charter of Stephen-in the vulgar meaning of the word, an usurper-was still more explicit than that of Henry, though its execution was delayed by civil

war.

9

But whatever the arbitrary practices of the crown in an unsettled age, the right of the sovereign to enact laws without the consent of the great council, or as it was afterwards termed, the parliament of the kingdom, was not acknowledged, nor the attempt ventured, even in the times of the Conqueror. According to the words of a writ of sumions to parliament, in the time of Edward I., it was always a maxim of the English constitution, "that what concerned all, should be done with the approbation of all; and that danger to the whole community, should be obviated by remedies provided by the whole community."10

How the great councils were composed during the reigns of the first princes of the Norman and Plantagenet line, is, however, a question of considerable interest, with regard to which, it is proposed to enter into some discussion. Some of our most eminent antiquaries have represented them as formed on the model of the baronial courts of the different feudal lords, and, therefore, as attended only by the king's tenants-in-chief, or even a portion of their number. We shall, perhaps, have occasion to see that there was no very precise rule upon the subject; but, in the meantime, in reference to the opinion of those who argue for the constant and absolute exclusion of all but a very limited part of the community from these assemblies, it ought to be observed, that, as regards political subordination, the feudal system was not established in England in the vigour by which it was distinguished on the continent, and that the Saxon institutions retained strength sufficient to check the spirit of the feudal aristocracy. At the same time, the paramount authority of the king's courts over those of the nobles, in conjunction with the influence of the county and hundred courts, weakened the ties of feudal subjection, and tempered the feelings of the vassal with those of the citizen. Even in Normandy, the dependence of the vassal on his lord was not so deeply rooted as in the rest of France. The baronial courts had not so large a jurisdiction ;" and the court of Exchequer, composed of the principal officers of the duke, and the barons, or their delegates, comprehended the whole duchy within its jurisdiction; examined into abuses, and received appeals from the inferior tribunals.

• Parliament was not a word in common use till the time of Edward I.; but in these remarks it has sometimes been used as synonymous with "the great council." 10 Rot Unus, 24, Ed. i. as cited by Lyttelton, Hist. of Henry II. ii. 279.-See also Bracton.

"Houard Anc. Luis des Français, i. p. 196.

In entering upon an inquiry into the constitution of the great council, it may be proper, in the first place, to state shortly the nature and functions of the Saxon wittenagemote, of which it was the successor. In conjunction with the king, the wittenagemote possessed all the powers of government. Its assent was necessary to the enactment of laws; it had the supreme judicial power of the kingdom; the question of peace and war lay with it; at its meetings grants of land by the crown were bestowed or confirmed. There, also, the election of bishops, subject to confirmation by the sovereign,12 was sometimes made; and the prerogative of the assembly went the length of regulating the succession to the throne itself. The name of this council, invested with so great authority, means literally, the assembly of the wise men; and in the general descriptions of historians, it is said to have consisted of prelates and abbots, of the aldermen of shires, and of the wise men, great men, counsellors, and senators of the kingdom.13 We have, however, only imperfect notices of the manner of its constitution. But it seems most probable, that "as the court of every tything, hundred, and shire was composed of the respective proprietors of land in those districts, the constituent members of the wittenagemote were the people of a similar description throughout the whole kingdom." The passage in the register of Ely, from which some have inferred that no one had a right to appear in the assembly, unless he possessed an estate of 40 hides of land, or between 4000 and 5000 acres, does not warrant that conclusion.15 If, then, all the proprietors of lands, or, as they were termed, thanes, who were very numerous, had the right of attending at the deliberations of the wittenagemote, that right must have been extensive; but it is also obvious, that the exercise of the abstract right would practically be but limited,-without representation it was useless; and is only deserving of remark, as it marks the popular bias of the Saxon polity. If, indeed, it could be shown that the dignity of alderman or earl, though in time it became hereditary or dependent upon the will of the monarch, had been originally an annual office, to which the freeholders in the county court had the right of election, its possessor, when sitting in the wittenagemote, might not inaptly be considered a representative of the county over which he presided. But the Saxon chronicle informs us, that the king, in early times, had the nomination of the dukes, earls, and sheriffs of the counties; and Alfred appears, of his own authority, to have deposed several ignorant aldermen.17

16

Like the wittenagemote of the Saxon monarchy, the great council, after the conquest, possessed the supreme legislative and judicial power of the realm. It was generally assembled at the three festivals of Christmas, Easter, and Whitsuntide. The Easter council was usually summoned by the Conqueror to Winchester; the Whitsuntide one to

Eddius, cap. 2.-Hume, i. 203.

13 Turner's History of the Anglo-Saxons, iv. 275.

14 Millar's Historical View of the Eng. Gov. i. 205-Spelman Concil. sub ann. 555. "Hallam's Middle Ages, ii. 388.-Sir William Dugdale was of opinion, that the Fame qualification was necessary to the creation of a parliamentary barony after the Conquest.-Carte, ii. 246.-Dugdale's Preface to the Baronage of England.

18 As supposed by Millar, i. 291, 293, 295.

17 It deserves, however, to be noticed, that the laws of Edward the Confessor state expressly, $35. that the heretochs, or dukes, were elected by the freeholders. The once popular notion, that the Anglo-Saxons had a representative system, may now be looked upon as altogether abandoned.

Westminster; that convoked at Christmas to Gloucester. But the same places were not chosen by succeeding monarchs. In describing the persons who attended these assemblies, historians enumerate the bishops, and abbots, the earls, barons, and knights, and in addition to these, the great men, 'Magnates,' Proceres; and sometimes use the expression of 'the whole kingdom,' 'regnum Angliæ;' or all the community,'' tota communitas regni.' The bishops and abbots sat in virtue, not of their clerical dignities, but as barons; the earls did not appear in right of their earldoms, but as tenants of land under the crown. With regard to the other classes of persons intended to be pointed at by the above-mentioned general phraseology, there is much dispute; and the difficulties are increased by the variety of meanings attached to the same expressions by contemporary writers, and in the documents of that period.

Baron was not a title of personal dignity till the reign of Richard II. and in the times which we are considering it was extended to all the immediate tenants of the crown by military service, and was frequently bestowed even upon the tenants of the crown's vassals.18 All the king's tenants, therefore, by knight-service, (whether the right was confined to them shall be afterwards considered,) had undoubtedly a right to be present at the king's great council: and the theory which some have adopted, that the privilege of a barony, and of sitting in the legislature, was confined to the possessors of a certain number (13) of knight's fees is inconsistent with historical evidence.19 The 11th article of the Constitutions of Clarendon, whilst it shows that all tenants in capite by knight-service were termed barons, leaves it doubtful whether even the crown's soccage tenants were not sometimes dignified by the same title. In the 9th article of the same Constitutions, the word is applied to all persons having fiefs to which the right of holding courts belonged, whether they held of the king, or of a mesne lord, and therefore included every person possessing a manor with five tenants attached to it. Our historians at times bestow the appellation of baron upon all freeholders of the county court; and the burgesses of the Cinque Ports, and the citizens of London, were addressed as barones' and 'eptimales' long before the reign of Henry III. In a writ of the 30th of that king, the former are expressly stated to have been present at a great council of the kingdom, and are named among the 'barones regni.' The Saxon chronicle uses the term 'thanos' for 'barones;' and in the convention between Stephen, and Henry duke of Normandy, afterwards Henry II., touching the succession to the crown, the barons are addressed after the sheriffs of counties; which could scarcely have happened if the former appellation had been confined to a small number of nobles.

There is equal uncertainty in regard to the precise meaning of the other generic terms by which the members of the great council are disnguished. Sometimes, as in one of the charters of Henry III., the word 'Magnates' includes prelates, earls, and barons, (that may, however, have a pretty wide compass) excluding all others; elsewhere it is em

1

18 Rudborne Hist. Wint. p. 279.-Hody on Convocations, p. 288, 289.

19 Lingard, 11. 67, 68.

20 M. Paris ad ann. 1237.-Fod. I. 232.

21 Fad. I. 121.

ployed to designate persons not even barons, and Bracton applies it to all the members of the great council. After the charters of Henry I. and Henry II. in virtue of which tenants of the crown could only be taxed of their own consent, the phrase of 'magnates regni' is used as a general description of the members of assemblies called for that purpose, where such persons at any rate must have been present; and after the attendance of knights of the shire in parliament became constant and unquestionable, they are addressed in the same manner. The words 'Milites' and 'Fideles' again, though often confined to the king's tenants by military service, are also on other occasions, conferred upon the tenants of mesne lords; or upon the freeholders, as in a writ to the sheriff of Worcester promulgating the great charter.23

These are a few of the instances which show that historians, and the imperfect records of the meetings of the great council, use the language descriptive of its members with so much vagueness, as to involve the question of the mode in which that assembly was composed in great obscurity. This much is evident, however, that when the attendance of the 'barones regni' is mentioned, we are not entitled to infer from that circumstance alone, that only the immediate tenants of the crown, still less a small fraction of them, were present. A term of phraseology, afterwards in a great measure applicable to the peerage, may have given undue weight to the opinions of the authors anxious to limit the numbers of those who had a voice in our early parliaments. But as the great council of the Anglo-Normans was a perpetuation of the Saxon wittenagemote, it acknowledged many principles not of feudal origin, and it seems to have obtained the character of having originally been a mere feudal court, rather from the general language by which in the prevalence of feudal notions it was described, than from a careful observation of the persons who frequently were summoned to its meetings.

The more minute descriptions by our ancient historians, of the constituent members of these assemblies, are extremely vague and indefinite; and they often state that resolutions were proposed or adopted with the consent of classes of men, whose presence they had not previously noticed. But while they may be considered as amply proving that the privilege of attendance was extended to all the tenants in chief of the crown by knight service, there are many passages which show, that though in point of constitutional right not essential, there were often many others present, not as spectators merely, but assisting in the deliberations. In a council held in the 4th year of William the Conqueror, twelve persons attended from each county, to declare the old laws and customs of the realm; a task in such times which it is very difficult to distinguish from that of legislation, and the imposition of which can hardly be reconciled with the idea that all interference in the administration of the government was of necessity confined to the immediate vassals of the crown. Eadmer's description of a council held in the time of William Rufus, for the purpose of determining the dispute between the king and Archbishop Anselm is remarkable. The historian says that a great multitude of the people' were present at the assembly; and they appear from his account to have taken a share in

Lord's report on the dignity of a peer, citing a writ of 38° Hen. III

23 Foed. 1. 147.

24 Wilkins Leg. Anglo-Sax. 216.-Hoveden Annals, 313.