in Doomsday Book was to possess himself of the information necessary for making his exactions, and exercising his arbitrary will in a manner that should be certain and scientific. But this information, it was seen, would be best obtained by means of jurors. The jurors called into action for this purpose in the different localities consisted, of necessity, not of Normans only, but, for the most part, of the old inhabitants. The Saxon jurors, in such cases, included the yeomen, the burghers, and even the churl. The local evidence thus supplied gave, for that time, a sufficient basis for local taxation. It is material to observe, that the people of the district did in effect determine the liabilities of the district; and that the king tacitly, consented to be bound by the evidence so furnished. Jurors, moreover, in such cases, formed a recognised corporate authority. Now it is the tendency of all such bodies to act, upon occasions, with a measure of independence and spirit, such as the individual members would never venture upon in their separate capacity. But the most pregnant fact remains. The evidence thus obtained concerning the persons and properties of the kingdom, in 1085, might serve as a basis for taxation at that time; but properties change in ownership, and change no less in value, and thus the necessity for jurors at one time comes to be a necessity for them at all times. Thus, by degrees, it grew to be a recognised principle that, in a sense, the subject should not be taxed without his consent for the liabilities of the district must be virtually fixed by the 'good men' of the district. The germ of the most liberal and healthy provision of Magna Charta, and of much more, lay in this custom. No little service was thus rendered to our country by the first William, though his selfish and iron nature meant it not.

The great instrument through which England was governed during this Norman period, was the king's council. But this council bore only a partial resemblance to a Saxon Wittanagemote. All persons included in this council were called to it by special summons. These persons consisted of barons only, who, as peers, possessed their rank in common. So convened, these nobles were accounted as representing the realm at large, and the Anglo-Norman kings deemed it expedient to act, in The laws many respects, as by the voice of this assembly. passed during this period were the laws of the king, issued with the advice or consent of his council. It is true, this custom did not always suffice to secure the subject against lawless acts on the part of the crown. But the ideas which became familiar to men were, that it became the king to advise with his council in the enactment of laws, and to govern according to laws so ori

Trial by Jury—the King's Council.

39

ginated and sanctioned. The Conqueror issued his laws in his own name and in the name of his council; and in the celebrated charter of Henry the First, the king gives his subjects the laws of Edward the Confessor, with the emendations of his father, and both with the consent of his own barons." The Saxons, as is well known, were earnest and constant in their call for these laws; and before the close of the period now under review, many of the Normans had learnt to join in the demand. The solicitude in both cases, was a solicitude to be governed by such known laws or customs as should serve to protect them against the caprice or injustice of magistrates or kings.

Concerning the judicial power which belonged to the Council of Barons, even under the Conqueror, we have evidence in the proceedings recorded as belonging to the sixth year of his reign. In that year, the King, with the advice of his assembled prelates and barons, put an end to the controversy which had grown up between the Archbishops of York and Canterbury in regard to precedence. The decision was in favour of Canterbury. In that year, also, the charge of treason against Earl Waltheof was urged before that council, and on the verdict then given by his peers the Earl was beheaded. In the reign of Richard I. we meet with a striking instance of the authority which the Norman barons had learnt to regard as pertaining to them when assembled in council. The King, before going on his crusade, had appointed his Chancellor, William Longchamp, a justiciary, or vicar, of the kingdom, conjointly with the Bishop of Durham. But Longchamp assumed the whole function to himself. The barons took upon them to chastise the folly and insolence of this man, which they did by depriving him of his office and sending him into exile. This was not only to assume the right of impeachment, it was something more. Bitter and protracted controversies arose during this period between the Kings of England and the Court of Rome. These are especially conspicuous during the long reigns of Henry I. and Henry II. In waging their warfare against the secular encroachments of the papacy, carried on as usual under spiritual pretences, both the kings above mentioned, and particularly the latter, deemed it prudent that the decisions published by them from time to time should go forth as being those, not only of the Crown, but of the great council of the nation. In this manner, from the natural influence of circumstances, the convening of this council came to be more frequent and more regular, its proceedings became more formal, its authority more acknowledged, and its position in all respects more accordant with the later idea of a parliament.

* Madox's Hist. Excheq., c. i. 111.

The officer who presided in the king's court in the absence of the king was the Chief Justiciar. To that functionary the guardianship of the realm was entrusted when the king was beyond sea. With the Justiciar were associated, as alike officers of the king's court, the Constable, the Marshal, the Seneschal, the Chamberlain, the Chancellor, and the Treasurer. The division of labour which these different titles imply, led by degrees to the division of the one original court into several. The four courts at Westminster became, in fact, so many sub-divisions of the king's court. These courts all made their appearance towards the close of this period-that is, within a century and a half from the Conquest; and so nearly contemporaneous, that lawyers, to preclude strife about precedence, have agreed to regard them as coeval. But in all these forms of administration the idea is that the king is the great administrator-the fountain of justice. The labour in the four great courts, and in all the lower courts, was properly the king's labour-those who there served did so in his name, and in his stead. Could the king do the whole, the legal conception of his function was that he should do it. Our early Norman kings often judged in person both in civil and in criminal causes. The separation of the king in person from all part in such proceedings, in the manner familiar to us, has been the work of a civilization which it has required many centuries to develop. It is not before the time of Henry II. that we find England divided into law-circuits, and judges in eyre- itinerant' judges appointed to hold their assize at fixed times and places.

But important as these organizations must appear, under any view of them, the instructions given to the judges concerning the mode in which they were to obtain the evidence necessary to detect the delinquent were fraught, in a still higher degree, with good for the future. For it was in this part of their proceedings that the jury principle, and an embryo representative principle, came into most salutary action.

When Henry II. returned from Normandy in 1170, he found the people loud in their complaints on account of the extortions and oppressions which had been practised upon them in his absence. Henry, with the advice of his great council (optimates), sent judges (barones errantes) to visit the different counties, and to collect evidence in relation to these charges. In pursuance of these instructions the judges were empowered to demand an oath from all barons, knights, and freemen, and from all citizens and burgesses, that they should say the truth concerning all that

* Madox, c. ii—xix.

The King's Courts-Growth of Representation.

41

should be required of them on behalf of the king, and that they should not conceal the truth for love or hatred, favour or affection, gift or reward. As the sheriffs and bailiffs were the parties most vehemently accused, their conduct was to be especially investigated. Inquiry was to be made concerning the amount of money which they had unduly levied on the Hundreds and Townships since the king had passed into Normandy, so that every excess in rating being ascertained, justice might be done. Great was the terror excited by these proceedings. The result, indeed, was not altogether such as some men had feared, and other men had hoped; but the effect, as Sir Francis has said, was good. It made the latent power manifest that might be evoked on any day against the delinquent. Nearly all the sheriffs were removed from their office, and many of their subordinates were heavily fined.

In all these proceedings the judges administered the law by means of juries; and, in so doing, they made their uses, as far as practicable, of the old Saxon Hundreds. It should be observed, also, that in prosecuting these inquiries they conformed themselves to another old Saxon usage, by accepting 'four men and a reeve' as representative of a Township. In a grand inquest held at St. Alban's, in the time of John, only a few years later, each of the demesne towns of the king sent its 'four good men' and its reeve.' We read also in those times of 'four discreet knights,' and sometimes of twelve men, as the representatives required from every county, corresponding with the four men summoned from the Borough, or the jurors summoned for the Hundred. As these parties had been wont to present the grievances of the people before the representatives of the king in the old shire-motes, so now they presented them before the judges, who had come by a special commission into the place of the sovereign. But who does not see here the precursors of those knights of the shire, and those representatives from boroughs, who were soon to have their place in an English House of Commons?

It is well known, however, that even under this same Henry II. justice was bought and sold in the king's courts, and even by the king's judges, with a shamelessness which is almost incredible. The prerogatives of the crown, too, were no doubt, in many respects, exorbitant, especially in relation to feudal exactions and taxation. The wealth of the crown was enormous. king taxed the vast domains, and the towns, immediately subject to him, according to his pleasure; and his barons, his tenants-inchief, might tax their sub-vassals in the same proportion.* The

* Madox, c. xviii.

The

demand that might be made by them on their sub-tenants was understood to be determined by the demand made upon themselves by the crown.* Imports and exports were all taxed according to the king's pleasure, and a considerable revenue was derived, even in those times, from the sale of monopolies. Where there is no will of a representative body to impose a check on such exercises of authority, there is always the law of circumstances to which even the most arbitrary are bound, more or less, to conform themselves.

We have thus glanced at some of the main facts indicating the effect of the Norman Conquest on the future constitution and government of this country. In the experience of the English the change brought a long subjection to spoliation, scorn, and oppression. Nevertheless, the result was not to be all evil. The Norman government proved to be a strong government. Only by such a government was it possible to teach that old enemy the Dane to respect the shores of this island. In securing the kingdom against all further danger from that quarter the Normans did a good work. The Normans were the first real masters of the island after the departure of the Romans. Under the kings of this race England became truly a kingdom-compact, potent, and promising to be equal some day to great things. The great power which the Conqueror was concerned to transmit to his successors had in this way its uses. But it also had its drawbacks. It prompted to excess-and excess could hardly fail to produce resistance and reaction. Even this, accordingly, was advantageous. It obliged the haughty Norman king to cede much both to Norman and Saxon which he would not otherwise have thought of ceding. For the two races had their common grievances, and learnt by degrees to make common cause against the oppressor. This became less difficult as they became more mixed together by intermarriages and other influences. This we are assured by an authority of the time, was so much the tendency of affairs before the close of the reign of Henry II., that among the people generally the distinction between Saxon and Norman had almost wholly disappeared. Even the difference of language was rarely perceptible. These were the facts which prepared the way for the Great Charter, and determined its complexion. The principle on which redress was sought in that Charter was one that can never lose its value. It was, that there is a power in the subject which may be legitimately exercised to lay restraint on the power of the crown. Wardship, scutage, tallage, and other feudal grievances, together with the abuses which grew up with them, have ceased long since; but the prin

* Dialogus de Scaccario, lib. i. c. 10.

+ Ibid.