* Vol. I. Tit. Warr.

+ Spelm Gloss. p. 184.

* Gloss.

tit. Conq. fol. 145.

+ Ex MS.

Dom. Rog. Owen Mil.

the lands of the English among his Norman followers, and that the chief of them were the great nobles who flourished in the succeeding reigns, this assertion is by no means meant to convey an idea that king William entirely dispossessed the Anglo-Saxons of their inheritances, or that he deprived them of their privileges; on the contrary, those Saxon thanes, who sided with him, and others who stood neuter, were allowed to keep their tainlands, and were styled sometimes thanes, and sometimes barons; but the former term was soon after dropped, and the latter adopted, which thenceforth became general.

In support of this statement may be cited divers ancient records, and particularly Doomsday Book, viz.

DORSETSHIRE. Ten Thains hold Chimedecome ipsi tenuerunt T. R. E. pro I manerio-omnes qui has terras tenuerunt T. R. E. potuerunt ire ad quem dominum volebant.

STAFFORDSHIRE.-viz. Alric holds Stagrisgeshowe. Aswold holds Chrochesdene; and fourteen more, hold lands, of titles prior to king William.

Dugdale, under the article of Warren in his Baronage*, and also Camden in his Britannia, recites, that the Conqueror gave to one Warren, a Norman, a great favourite, the lands of Edwin de Sharnborne, an Englishman ; which Edwin, thereupon, in open court, claimed restitution of the same, as his right, for that he had never taken up arms against the king, either before his coming in or since: whereupon, the king, vinculo juramenti astrictus, gave judgment of right against the Norman, and Sharnborne recovered his lordshipt. (†)

But, though the duke of Normandy, by the victory at Hastings and the death of Harold, became the conqueror of his foe, yet the title of conqueror, rather than of victor, was probably assumed by him, as a word signifying a purchaser, or, in the acceptation of the law, one that acquires a real estate, not by hereditary descent, but by bargain or gift. Thus, sir Henry Spelman says, Willielmus primus conquestor dicitur, quia Angliam conquisivit, id est, acquisivit, non quod subegit. To this effect also are words contained in a charter† of Hen. I. to the abbey of Westminster, viz. pro memoriâ Edwardi, cognati mei, qui patrem meum et liberos, illius in regnum suum, adoptivos hæredes instituit.

(b) Dr. Brady says, the account of Sharnborne being restored to his lands by William the Conqueror, is a famous legend and trite fable, as no person is recorded in Domesday to bold

Thus far appears established the fact, that William did not disinherit the Saxons (or rather English) at large; and that he allowed them to retain their feudal rights, privileges, and distinctions, in common with his Normans. The following proofs of record may be adduced :—

Pro Jacobo Archamgere*.

* Commun.

de term.

Sanct, Mich.

An.36Incip.
Hen. 3. Rot.

pr. pen.

Remem.

Dom. Thes.

Rex Baronibus.-Mandamus vobis quòd occasione arrentationis Serjan- 35 Fin. et tiarum, assessæ per Robertum Passelewe, non distringas Jacobum de Archamgere per 2 marc. et dimid. de tenemento quod de nobis tenet per serjantiam in Archamgere (in com. Southamp.) per chartam beati regis Edwardi antecessoribus ipsius Jacobi super hoc confectam, sed ipsum Jacobum de predictis 2 marcis et dimid. quietum esse faciatis in perpetuum ; quia chartam præfati beati Edwardi confirmavimus, et ipsam volumus inviolabiliter observari.

Breve est in forulo mareschalli, et mandatum est vicecomiti Southamp. comparat. die Jovis, die 15 Jan. A.D. &c.

Again; viz. † Willem gret mines bishops, et mines earles, et ealle mines -Here were English thanes, "Thani thegnes, Frencisse et Englisce.--Here were English thanes, appellatione viri interdum liberæ conditionis homines, interdum magistratus, atq. sæpenumero ministri notantur."

Ex Chart. Spelm. Antiq. 1. Gloss.

Lambard de prisc.

Again; viz. §W. Rex Anglorum, O. Episcopo Sarisburiensi et L. Abbati Ang. Leg. Glastoniensi et A. vicecomiti omnibusq. baronibus, Francigenis et Anglis de Sumerseta, et Wiltunscire, Salutem, &c.

fol. 223.
§ Monast.
Ang. VI.
fol. 185.

Idem.|| Rex Ang. episcopo de Suthsexa, et vicecomiti, et cæteris baronibus || Ibid. suis Francigenis, et Anglis salutem, &c.

From these writs and charters, it seems plain, that in the time of the Conqueror the general direction of the writs and charters is addressed to

fol. 29.

any lands in Sharnborne but William de Warren; nevertheless, it is certain that Sharnborne recovered the possession of his lands, though Warren is recited in Domesday as the chief lord. -Vide the Ancient Right of the Commons of England Asserted, by W. Petyt; Pref. p. 24 et sequentes.

* Pref. 8 Rep.

French and English, both alike, without any difference of power or authority, otherwise, than that the French are named before the English barons or landholders.

Now, though the Conqueror might introduce divers new customs into the country, it is not to be concluded that he changed the whole frame and constitution of the government, for lord chief-justice Coke says, “The grounds of our common laws at this day are beyond the memory or register of any beginning, and the same which the Norman conqueror then found within this realm of England:" and those laws he sworet to St. Albani. observe, which were good, approved, and ancient.

+ Ex Vitâ Albat.

Œuvres de Basnag. Vol. I.

But, without entering too particularly into the history of the rise and progress of the feudal law, it may be sufficient to observe, that, according as, at the time of the conquest, it was understood and practised in France, it flourished in its full vigour in Normandy; not that the customs of Normandy were entirely the same with those of France, each province of that kingdom having distinct and different customaries, though all founded upon the same principles. +

What were the military tenures in England during the time of the Saxons, is not exactly ascertained. That such kind of tenures existed, is beyond a doubt; and it is probable that they underwent some, if not a very great alteration, by the accession of William the Conqueror to the throne, and that he established many feudal customs for law, which he brought with him from Normandy (†).

With respect to the orders and titles of dignity in England, after the conquest, they were for several centuries only of two kinds, viz. Earls and Barons: they were both similarly founded upon actual possessions, though, at this day, they have become merely personal honours, and names of dignity, shorn of their officiary functions, and co-ordinate estates. Of this nobility, the denomination of baron supplied the place of the Saxon

(c) In the proem of the customary of Normandy, which is entitled "Descriptio Normanniæ," it is asserted, that Edward the Confessor, king of England, gave the English laws to the Normans, when he was so long sheltered there. This point is also witnessed by Chronica Chronicorum.-Vide lord Whitlock's Speech in 1650, printed in Mr. Whitlock's Memorials of English Affairs.

*

79. Edit.

Selden.

thane, and was introduced from France, where it denoted a person who held a feudum nobile, with the right of administering justice in criminal and civil causes; and here, in England, signified a person holding his lands immediately of the king, and having a certain number of free tenants holding of him, with a court, in which he administered justice to his tenants. The words of Spelman are, viz. *" Barones autem antique Gloss. p. estimandi sunt qui in suis dominiis de litibus cognoscebant, et latrociniis; 1626. consuetudines habentes, quas Sac, Soc, Team, Infangtheife, Outfangtheife, Furcas, &c. appellant Hence, chief-justice Coke says, that + 2 Inst. 6. in ancient records "the baronage included all the nobility of England; because regularly all noblemen were barons, though they had a higher title." Some writers, (and, indeed, Spelman inclines to that opinion), have thought, that baron, and tenant in capite, were synonimous, yet, probably, they were led into that notion from the representation of old historians and the ancient modust. Thus, the tenure of thirteen knights fees, and a third part in capite of the crown constituted a baron of the realm. But, by reference to the public records, it will be seen, that it was always the quality, and not the quantity of the tenure, which gave right to the baronial honour; a fact, which the instances of Abergavenny and of Berkeley clearly evidence; for neither of those castles or territories, were holden in capite at even the service of five knights fees; they were, however, holden per baroniam, and that tenure was admitted to render them, ab origine, feudal baronies and parliamentary dignities, by prescription, in the constant usage of writs of summons, as barons.

Mod.

Tenen. Parl.

MS. cap. de
Laicis.

§ Vide ColPreced.

lins's Parl.

20 Edw. I. n. 36.

Moreover, there is no foundation for thinking barony, and tenure in capite, to be terms synonimous, because, in the instance of Philip de Marmion, who died the 20 Edw. I., it was found, that he died seised of Esch. the castle of Tamworth, holden in capite, by the service of three knights' fees; and of the manor of Scrivelby in com. Linc., holden in capite per baroniam; which two tenures were distinct services, the one being to find three men for forty days for the Welsh wars-the other being for general service in the field, or council, as the king should command. Furthermore, upon the authority of the case of Furnival, cited by Mr. Madox, in his History of the Exchequer, it appears, that, though every baron, ¶ p.370.

*Esch.

20 Edw. I. n. 36.

+ Rot. Pat.

27 Edw. 3.

p. 3. m. 3.

+ West's Enquiry.

properly so called, was a tenant in capite, yet, a tenant in capite was not by reason of his tenure, a baron, for the number of tenants in capite was always encreasing, but that of the feudal barons always decreased.

It certainly is clear that the term, tenant in capite, is, or was, equally applicable to all services, for lands or seignories holden of the crown, since what distinguishes a baron from all other tenants in capite, cannot be the want of mesnalty between himself and the crown, for that is common to them all, but must be the reservation of some particular services of a superior nature to the others, fit only to be performed by the person of a baron, and which were supplied in the phrase, "tenere per baroniam." Thus, in the instance of Philip de Marmion*, before cited, numerous documents in the public archives shew, that he held the manor of Scrivelby

per baroniam, and by the service of being champion to the kings of England, on the day of their coronation," a service which, of all others, demanded one of a noble state and degree to execute ;-to which example may be added, that of Abergavenny, which appears to have been holden by barony and by serjeanty, as in Collins's Parliamentary Precedents may be found very fully detailed.

That a barony was a tenure in capite, and immediately subject to the crown, is evident from the record, temp. Edw. IIIt. viz. "Rex, &c. sciatis quod, &c. Richardus comes Arundel, 24° Octobris, fecit nobis homagium pro baronia sua de Bromfield & Yale ; quam idem comes de nobis tenet in capite tanquam coronæ nostræ Angliæ immediàte subjectam." And therefore, it often happened in the case of amerciaments, that, when any man thought himself aggrieved by being amerced as a baron, he would plead, that he was not a baron, (though at the same time he would admit himself to be a tenant in capite,)" quia nil tenuit per baroniam.”

It may be observed, that the whole of parliamentary business, as attendant upon the service of the baron, is reducible to the heads of either advice or consent: the first of these is to be considered as a feudal service, performable to the king, as superior lord of their fiefs;-the second, is extra-feodal, and depends upon those principles of liberty, that were common to all the Gothic nations.

Every tenant, per baroniam, did homage to the king, by virtue of which