CHAP. I. increased tolerably independent of the assent of their tenantsin-chief, and would seldom have required to tax them beyond the regular feudal aids. Personal service took 1066-1215 the place of a war budget; the taxation of socage tenants, the tallage exacted from towns and other royal demesne, were limited by nothing but the kings will and the length of the purses to be emptied. The Conqueror was lord of both nationalities, and used both systems-the feudal, which he brought with him and improved; the native, which he found and adapted he needed the aid of neither party to tax the other, and was thus independent of both. The royal power in this respect was somewhat limited, or somewhat at least reduced from the dimensions to which it had under grown under William II, by the charter of Henry I ; Henry I, but even here the limitation is 'the kings own gift.' The same king speaks of an aid which the barons. have given me;' but not much stress can be laid on the use of such a word to imply that the barons were entitled to withhold the g. We find no instance in which the right to a share in the taxation is stated; no parliamentary opposition to the king on this head or that of legislation, in the declaration of war or the regulation of the Church, appears in the records preserved to us. The difficulties to be met by the king are such as spring from the isolated resistance of feudal barons, not from a Parliament with traditional rights to defend. The Peers' Committee thinks but hardly that the consent of military tenants-in-chief was nominal. considered necessary in the case of extraordinary taxation; but the theory, if it existed, seems to have gone no further than this, that the levying of such 'Stubbs, Const. Hist. i. 370. Anselm was not supported by the Church. more than Slight in fluence of the National Council under the Norman kings. CHAP.. taxes without the form of approval by a council was I. held to be in some way or other unjust. As to legis1066-1215 lation, the rights of the baronage seem to have been confined to that of being present and supporting, but not opposing, the kings acts. New laws, properly so called, during this period there were none; royal edicts and charters, of so fleeting a character that it seems to have been considered needful to confirm them at the beginning of each reign, supplied their place. Sir John Fortescue says, some three centuries later, that it never was a maxim in England that 'that which the prince wills has the force of law;' but it is very much to be doubted whether it did not hold good during the first century after the Conquest. Composition of the National Council under the Norman kings. It is very hard to decide, owing to the constant variation of terms, what were the component parts of a Great Council under the Norman kings. The elements and size of the councils vary according to circumstances, time, and place, from the small councils, or rather courts, consisting of the higher officers of the realm and the regular attendants of royalty, with whose aid the king transacted the ordinary business of government, to the great assemblies of all feudal tenants, whether tenants-in-chief or subtenants, possibly of the whole body of landowners, such as that. of 1086, at which the Domesday survey was ordained. Such great assemblies were however very rare, and even those that occurred can hardly have been attended by all who might have been expected to be present. The ordinary Great Council appears to have been attended by archbishops, bishops, abbots, earls, and persons called, sometimes alone, and sometimes in conjunction with the rest of the proceres or magnates, by the name Barons. This word seems generally to include all who held by military tenure of the king CHAP. 1066-1215 The Barons greater and smaller : the distinc in chief, except those who held of him by escheat, that is, those who by the death of their mesne lord were no longer subtenants but tenants of the king. It was however used in many different senses, and its meaning is very obscure. The distinction between earls and others, called especially barons, is already evident under the first Norman kings; and in the charter of Henry I a distinction is made between barones and homines, the former alone being recognised as members of the council, and apparently including earls and those barons who are called Majores Barones in Magna Carta. There naturally grew up a distinction between those who habitually origin of attended and those who did not; the number of mili- tion. tary tenants-in chief was even under William I far too large ever to have met practically for the purpose of consultation; the smaller barons would not have received the special summons directed to the greater and better known; and thus a precedent was gradually established by which a distinction not originally existing was introduced and confirmed. Included in the list of barons would doubtless have been some of the inhabitants of London and the Cinque Ports, but such would have attended as barons in their own right, and in no way as connected with those towns. Corporate tenure, such as that obtained gradually by most great towns, conferred no right of membership, nor could such right have been exercised until the system of representation was introduced into politics. Ecclesiastics who were present, even if they kept at first the position they had held in the Witenagemot, Towns and church. CHAP. I. must soon, in a feudal assembly, have been looked. on primarily as feudal tenants, obliged to do military 1066-1215 service like any other tenants-in-chief. Limited nature of the National Council. Thus the whole great class of freeholders, including all tenants not holding by military tenure, that is, all socage tenants, tenants of royal demesne and others, were left entirely without share in the government, and were subject to tallage and other exactions at the kings will. The class of subtenants, gradually rising to greater power, some of whom were superior in importance to many tenants-in-chief, while others. were at the same time tenants-in-chief themselves, were considered, fallaciously enough, to be represented by their mesne lords. In the time of Henry II the number of such tenants holding by knight-service of their lords was nearly equal to the whole number of knights fees in the kingdom. The force of such a body may be imagined when they first became conThe smaller scious of their political needs. The smaller tenantsin-chief who, from inadvertence, from fear of expense, very often perhaps because they were not summoned, had ceased, except on rare occasions, to attend the Council, were theoretically perhaps members but had no real power. It cannot have been pleasant for them. to attend merely to be overridden by the physical force of the greater barons; and the latter were not likely to encourage those who, nominally their equals by similarity of tenure, were in reality so far their inferiors in strength. Even in the case of the greater barons, that the king could abuse his privilege of summoning the members so as to keep out an obnoxious noble, is shown by the provisions of Magna Carta on that point. tenants-in retically, not actu ally, members. I. 1066-1215 Council In its influence in legisla tion but This constitution of the national council as a CHAP. feudal assembly lasted after the accession of Henry II up to and long past the date of Magna Carta. The NaWith regard to this point the utmost demanded in tional that charter is that all tenants-in-chief shall be in under some way or another summoned. Unsettled as it may Henry II : have been before, the theory that this was the legitimate form seems to have grown up during the reign of Henry II. The importance of the council had meanwhile been growing in no small degree. right of legislation, it is true, not much advance was made. The Charter of Liberties issued by Henry slight. II confirms that of his grandfather, and the same form, that of a donation or concession, is kept up. The Constitutions of Clarendon are the report of a body of recognitors made in the presence of the great men, lay and clerical, and confirmed by archbishops, bishops, earls, barons, and the nobler men and elders of the realm; the latter seem to have been the great officers and men of experience connected with the kings courts, who would naturally attend such a council. The Assizes of Clarendon and Woodstock were made by assent of a similar body; but the authority by which other assizes were issued during this reign is not stated to have been any other than that of the king. How little is to be inferred from this action by common counsel of the great men is evident from the fact that, when in 1177 Henry II assembled his whole army for an expedition to Nor 1 Stubbs, Const. Hist. i. 356: cf. Vita S. Thoma, quoted in Sel. Chart. 123, where omnes qui de rege tenerent in capite,' are said to have attended at Clarendon in 1164; this can hardly, however, include any but military tenants-in-chief. " 'Recognitus' is the word used. - Stubbs, Sel. Chart. 131. |
