Page 151 of 155

     [** Hoveden, Chron. Gerv. p. 1410.]

     [*** Madox, chap. xiv.]

     [**** Spel. Gloss, in verbo Forests.]
     happened in the reign of King John.]

     [****** Madox, Hist. of the Exch, p. 151]

     [******* Madox, Hist. of the Exch, p. 153.]

     [******** Madox, Hist. of the Exch, p, 168.]

Henry III borrowed five thousand marks from the earl of Cornwall; and for his repayment consigned over to him all the Jews in England. The revenue arising from exactions upon this nation was so considerable, that there was a particular court of exchequer set apart for managing it.

We may judge concerning the low state of commerce among the English, when the Jews, notwithstanding these oppressions, could still find their account in trading among them, and lending them money. And as the improvements of agriculture were also much checked by the immense possessions of the nobility, by the disorders of the times, and by the precarious state of feudal property, it appears that industry of no kind could then have place in the kingdom.

It is asserted by Sir Harry Spelman,[*] as an undoubted truth, that, during the reigns of the first Norman princes, every edict of the king, issued with the consent of his privy council, had the full force of law. But the barons surely were not so passive as to intrust a power, entirely arbitrary and despotic, into the hands of the sovereign. It only appears, that the constitution had not fixed any precise boundaries to the royal power; that the right of issuing proclamations on any emergence, and of exacting obedience to them,—a right which was always supposed inherent in the crown,—is very difficult to be distinguished from a legislative authority; that the extreme imperfection of the ancient laws, and the sudden exigencies which often occurred in such turbulent governments, obliged the prince to exert frequently the latent powers of his prerogative; that he naturally proceeded, from the acquiescence of the people, to assume, in many particulars of moment, an authority from which he had excluded himself by express statutes, charters, or concessions, and which was, in the main, repugnant to the general genius of the constitution; and that the lives; the personal liberty, and the properties of all his subjects were less secured by law against the exertion of his arbitrary authority than by the independent power and private connections of each individual.

     [* We learn from the extracts given us of Domesday
     by Brady in his Treatise of Boroughs, that almost all the
     boroughs of England had suffered in the shock of the
     conquest, and had extremely decayed between the death of the
     Confessor and the time when Domesday was framed. * Gross. in
     verb. Justicium Dei. The author of the Miroir des Justices
     complains that ordinances are only made by the king and his
     clerks, and by aliens and others, who dare not contradict
     the king, but study to please him. Whence, he concludes,
     laws are oftener dictated by will than founded on right.]

It appears from the Great Charter itself, that not only John, a tyrannical prince, and Richard, a violent one, but their father, Henry, under whose reign the prevalence of gross abuses is the least to be suspected, were accustomed, from their sole authority, without process of law, to imprison, banish, and attaint the freemen of their kingdom.

A great baron, in ancient times, considered himself as a kind of sovereign within his territory; and was attended by courtiers and dependants more zealously attached to him than the ministers of state and the great officers were commonly o their sovereign. He often maintained in his court the parade of royalty, by establishing a justiciary, constable, mareschal, chamberlain, seneschal, and chancellor, and assigning to each of these officers a separate province and command He was usually very assiduous in exercising his jurisdiction, and took such delight in that image of sovereignty, that it was found necessary to restrain his activity, and prohibit him by law from holding courts too frequently.[*] It is not to be doubted but the example set him by the prince, of a mercenary and sordid extortion, would be faithfully copied; and that all his good and bad offices, his justice and injustice, were equally put to sale. He had the power, with the king’s consent, to exact talliages even from the free citizens who lived within his barony; and as his necessities made him rapacious, his authority was usually found to be more oppressive and tyrannical than that of the sovereign.[**] He was ever engaged in hereditary or personal animosities or confederacies with his neighbors, and often gave protection to all desperate adventurers and criminals, who could be useful in serving his violent purposes. He was able alone, in times of tranquillity, to obstruct the execution of justice within his territories; and by combining with a few malecontent barons of high rank and power, he could throw the state into convulsions. And, on the whole, though the royal authority was confined within bounds, and often within very narrow ones, yet the check was Irregular, and frequently the source of great disorders; nor was it derived from the liberty of the people, but from the military power of many petty tyrants, who were equally dangerous to the prince and oppressive to the subject.

     [* Dugd. Jurid. Orig. p. 26.]

     [** Madox, Hist. of the Exch. p. 520.]

The power of the church was another rampart against royal authority; but this defence was also the cause of many mischiefs and inconveniencies. The dignified clergy, perhaps, were not so prone to immediate violence as the barons; but as they pretended to a total independence on the state, and could always cover themselves with the appearances of religion, they proved, in one respect, an obstruction to the settlement of the kingdom, and to the regular execution of the laws. The policy of the Conqueror was in this particular liable to some exception. He augmented the superstitious veneration for Rome, to which that age was so much inclined, and he broke those bands of connection which, in the Saxon times, had preserved a union between the lay and the clerical orders. He prohibited the bishops from sitting in the county courts; he allowed ecclesiastical causes to be tried in spiritual courts only;[**] and he so much exalted the power of the clergy, that of sixty thousand two hundred and fifteen knights’ fees, into which he divided England, he placed no less than twenty-eight thousand and fifteen under the church.[**]

The right of primogeniture was introduced with the feudal law; an institution which is hurtful by producing and maintaining an unequal division of private propeny; but is advantageous in another respect, by accustoming the people to a preference in favor of the eldest son, and thereby preventing a partition or disputed succession in the monarchy. The Normans introduced the use of surnames, which tend to preserve the knowledge of families and pedigrees. They abolished none of the old, absurd methods of trial by the cross or ordeal; and they added a new absurdity—the trial by single combat—[***] which became a regular part of jurisprudence, and was conducted with all the order, method, devotion, and solemnity imaginable.[****] The ideas of chivalry also seem to have been imported by the Normans: no traces of those fantastic notions are to be found among the plain and rustic Saxons.