in the na for the king's service. The military service due from the ten- No immediant was probably measured at first by the old custom which ate change required the equipment of one fully armed man for every five ture of hides of land.1 Under William as under Eadward, military service. service is due, not to the lord as lord, but to the state and to the king as its head.2 military ism im the Old system. system 4. The origin and growth of the feudal elements contained Elements in the Old-English system have been already explained. In of feudalthat system the relation of lord and man a relation at first bedded in not necessarily connected with the holding of land-was English fully developed. This relation in its primitive form was that of princeps and comes, of king and thegn, of lord and man, and not of lord and tenant. But in the "process of feudalization," through which the primitive system was passing at the time the Norman conquest began, a gradual development can be traced in which the original relation of lord and man closely approaches that of lord and tenant. The fact has Manorial been already pointed out that the manorial system originates originates in Old-English and not in Norman law, and that the relation in OldEnglish of a lord of a manor and his tenants substantially existed and not in from the time the title to the lands of the once free village- law. community passed from the community itself and became vested in a lord. The lord or thegn, whose men were thus gradually becoming his tenants, looked in turn to the king as the lord from whom he might receive the grant of a large district to be held allodially, or simply as a possessory right in the folkland upon the payment of dues and services. Every landowner, whether his land was burdened or not, was subject to military service, which was regarded, not as an incident of tenure, but as a duty to the state. The Old-English system thus contained all the these elements, at the time of elements of feudalism, and the Conquest, were gradually Norman Only an embryonic feudalism. Norman feudal ideas more fully their influ ence upon becoming blended: the thegn was passing into the tenant-inchief; the men of the dependent township were surely becoming the tenants of the lord in whom the title to lands of the community was vested. And yet these elements, which thus developed in England before the Conquest into a kind of feudalism, were never worked into a systematic shape; they were never woven into a harmonious feudal system. In the minds of William and his followers, who came from a continental land in which feudal ideas had reached a far developed; higher and more perfect development, the conception of feudal tenure, of military tenure, was no doubt far more clearly defined than it had ever been in the insular English system.1 By the coming of William two kindred systems of land tenure, both tending in the same direction, and yet in different stages of development, were brought into the closest contact, and out of the fusion between the two has arisen the feudal mode of holding land imbedded in the English common law. Under the invigorating influence of Norman ideas the growth of feudalism as a system of tenure was greatly stimulated; the idea of tenure, the more exact definition of the rights and duties of lord and tenant, was rapidly developed. William's endless confiscations and regrants gave a new strength to the principle that all land should be held of a lord; the folkland which had long been tending to become terra regis actually became so; the king's thegns who had been tending to become tenants-in-chief actually became so; 3 the dependent township became the manor of the lord, and the once free townsmen became his tenants. By the end of the Conquerbecomes the or's reign the principle was settled that the king was the (supreme landlord; that all private land was held mediately or immediately of him; and that all holders were bound to their the growth of the idea of tenure. The king supreme landlord. 1 "To the mass of his (William's) tenure, must have seemed the natural lords by homage and fealty, either expressed or implied, in every case of transfer by inheritance or otherwise.1 And yet the extent of the change that actually took place in William's reign must not be overestimated. Although Domesday contains abundant evidence of the growth of the idea of tenure, the "men" of a lord rather than his tenants are spoken of on every page; the personal relation of lord and man is generally, though not always, merged in that of lord. and tenant of knight service or military tenure in its later and stricter sense we hear nothing, "miles" had not yet acquired the technical sense of "knight." It was in the suc- Feudalism ceeding reign of William Rufus that the system of military into a tenures was hardened and sharpened by the "malignant gen- methodical ius" of Ranulf Flambard into a methodical system of exac- under Wiltions and oppressions.3 hardens system liam Rufus. the Conquest on ganization: and the of the unbroken 5. An examination has been heretofore made of the his- Effects of tory of the witan, considered as the supreme council of an heptarchic state, and also as the supreme council of the whole central or English nation when finally united in a single consolidated the king kingdom. In the Old-English national assembly all grave witan. matters were discussed, and with its advice and consent were performed all important acts which the king could authorize.1 After the coming of William the continuity of the old na- Continuity tional assembly went on unbroken; the witan remained, as national before, the national council of the king, and during William's assembly reign it retained much of its earlier character. The name by the Conquest. witan goes on in English as long as the Chronicle continues, and the new Latin name, magnum concilium, which grows up by its side, is simply a translation of mycel gemot. Of the constitution of the witan, either before or after the Conquest, we have no direct or formal account, but the highest authorities substantially agree in the conclusion that on all ordinary occasions the witan was a comparatively small gathering of great men, while on extraordinary occasions the assembly was sometimes reinforced by large popular bodies from every part of the kingdom. From the Chronicler, who 1 Stubbs, Const. Hist., vol. i. p. 260. 2 Sir H. Ellis, General Introduction to Domesday, vol. i. p. 58. 3 This is the conclusion of Stubbs, Const. Hist., vol. i. p. 298. Mr. Free man adopts this view, Norm. Cong., 5 Norm. Cong., vol. v. p. 276. 6 There may be a shade of difference of a chronicler who Testimony had evidently lived at King William's court, we learn that "thrice he wore his crown every year, as often as he was had lived at in England: at Easter he wore it at Winchester; at Pente William's court. cost at Westminster; at Midwinter at Gloucester; and then were with him all the rich men over all England, archbishops and suffragan bishops, abbots and earls, thegns and knights." 1 The ordinary courts or councils here referred to were no doubt of a limited character, seldom embracing more than the great officers of state, and the household, the bishops, the earls, and the greater barons. But in the great Gemot of Salisbury in 1086 we have an example of what seems to have been a general gathering of all the landowners in the kingdom. What were the qualifications necessary to bestow the right of membership in the great council, during the Norman reigns, cannot be definitely stated: not until the reign of Henry II. can it be confidently maintained that every tenantin-chief of the crown was a member of the assembly.2 It The witan seems to be admitted that the Norman conquest wrought no as the great formal change in the constitution of the witan: after the tains all of Conquest the great council remains in possession of all the council re its old powers. powers of the old witenagemot. In legal theory at least, what the witan was in the days of King Eadward it seems to have remained in the days of King William.3 In the forms of legislation, change there was none. William legislates, like his English predecessor, "with the common council and counsel of the archbishops, bishops, abbots, and all the princes of the kingdom." The formal right of the witan to elect the king is still distinctly recognized; William is elected before he receives the crown at Westminster. Henry admits that he owes his election to the barons; 5 while Stephen rests his sembly, so no formal change took place in its powers." - Freeman, Norm. Cong., vol. v. p. 280. 4" Communi concilio et consilio archiepiscoporum, episcoporum et abbatum et omnium principum regni mei." See William's ordinance separating the spiritual and temporal courts, Thorpe, Ancient Laws, p. 213. "This immemorial counsel and consent descends from the earliest Teutonic legislation." - Select Charters, p. 18. See preamble to charter Henry I., Thorpe, Ancient Laws, p. 215. kingship the doctrine the great council; claim on the broader basis of a choice by the clergy and the people. At the coronation the people still formally accept the king elected by the national assembly; and the king upon his part still takes the oath of good government, whose pledges are expressed in the form of charters.2 The elective Elective principle survives with diminishing force until it is finally finally extinguished in the time of the Angevins by the new feudal yields to theory of hereditary descent. From the mention made by of herediHenry of an aid which his barons had given him, it may be tary right. inferred that the king as of old, with the advice of the great council, laid taxes upon his people. Yet the right of the Taxative and judicial council to join in taxation is nowhere distinctly stated. That powers of the judicial powers of the witan went on practically undisturbed by the Conquest, there can be no doubt. The history of the Norman reigns furnish abundant instances of the ¡exercise of such powers by the national assembly both in civil and criminal cases. In such trials the will of the king may generally have prevailed, but the formal right at least of discussion and debate seems to have been recognized. The its power to power of the witan to deal with ecclesiastical business also regulate survived; but owing to the existence of the separate eccle- cal busisiastical courts and councils to which the policy of the Conqueror gave birth, it survived with diminished authority. But although the witan, under the title of the great council, outlived the Conquest, and although in legal theory it still retained all of its old powers, and although its formal right to participate in legislation was distinctly recognized, yet the fact remains that the constitution of the assembly underwent A great a great practical transformation. At the beginning of Wil- practical liam's reign those who composed the council that ordinarily tion. gathered round the king were a body of Englishmen; by the end of his reign this body had gradually changed into an 1 "Ego Stephanus Dei gratia assensu cleri et populi in regem Anglorum electus." See second charter of Stephen, Statutes of the Realm: Charters of Liberties, p. 3. 2 Stubbs, Const. Hist., vol. i. p. 339. 3 "Under the Angevins, circumstances became more favorable to hereditary succession, and such succession became, not by law but by prescription, the rule of English kingship." Freeman Norman Conquest, vol. v. p. Henry I. speaks of an aid as "auxilium quod barones mihi dederunt."Chron. Abingd., ii. p. 113. See First Report on the Dignity of a Peer, pp. 38, 39; Stubbs, Const. Hist., vol. i. p. 371, and note 4. Stubbs, Const. Hist., vol. i. pp. 371373; Freeman, Norm. Cenq., vol. v. p. 282. ecclesiasti ness. transforma |