Landholding in England Part 3

"Hae sunt Leges et Consuetudines quas Willielmus Rex concessit universo Populo Angliae post subactam terram.

Eaedum sunt quas Edwardus Rex cognatus ejus obscruauit ante eum.

"Ces sont les leis et les Custums que le Rui people de Engleterre apres le Conquest de le Terre. Ice les meismes que le Rui Edward sun Cosin tuit devant lui.

"LII.

"De fide et obsequio erga Regnum.

"Statuimus etiam ut omnes liiben homines foedere et sacramento affirment quod intra et extra universum regnum Anglias (quod olim vocabatur regnum Britanniae) Willielmo suo domino fideles esse volunt, terras et honores illins fidelitate ubique servare c.u.m eo et contra inimicos et alienigonas defendere."]

This simple statement gets rid of the theory of Sir Martin Wright, of Sir William Blackstone, of Mr. Hallam, and of Mr. FREEMAN, that William introduced a new system, and that he did so either as a new feudal law or as an amendment upon the existing feudalism. The LII. law, quoted by Wright, is as follows:

"We have decreed that all FREE MEN should affirm on oath, that both within and without the whole kingdom of England (which is called Britain) they desire to be faithful to William their lord, and everywhere preserve unto him his land and honors with fidelity, and defend them against all enemies and strangers."

Eadmerus, who wrote in the reign of Henry I., gives the LII. William I.

as a confirmatory law. The charter given by Stubbs is a contraction of the law given by Eadmerus. The former uses the words OMNES LIBERI HOMINES; the latter, the words OMNIS LIBERI h.o.m.o. Those interested can compare them, as I shall give the text of each side by side.

Since the paper was read, I have met with the following pa.s.sage in Stubbs's "Const.i.tutional History of England," vol. i., p. 265:

"It has been maintained that a formal and definitive act, forming the initial point of the feudalization of England, is to be found in a clause of the laws, as they are called, of the Conqueror, which directs that every FREEMAN shall affirm, by covenant and oath, that 'he will be faithful to King William within England and without, will join him in preserving his land with all fidelity, and defend him against his enemies.' But this injunction is little more than the demand of the oath of allegiance taken to the Anglo-Saxon kings, and is here required not of every feudal dependant of the king, but of every FREEMAN or freeholder whatsoever. In that famous Council of Salisbury, A. D, 1086, which was summoned immediately after the making of the Doomsday survey, we learn, from the 'Chronicle,' that there came to the king 'all his witan and all the landholders of substance in England, whose va.s.sals soever they were, and they all submitted to him and became his men, and swore oaths of allegiance that they would be faithful to him against all others.' In the act has been seen the formal acceptance and date of the introduction of feudalism, but it has a very different meaning. The oath described is the oath of allegiance, combined with the act of homage, and obtained from all landowners whoever their feudal lord might be.

It is a measure of precaution taken against the disintegrating power of feudalism, providing a direct tie between the sovereign and all freeholders which no inferior relations existing between them and the mesne lords would justify them in breaking."

I have already quoted from another of Stubbs's works, "Select Charters,"

the charter which he appears to have discovered bearing upon this transaction, and now copy the note, giving the authorities quoted by Stubbs, with reference to the above pa.s.sage. He appears to have overlooked the complete narration of the alleged laws of William I., given by Eadmerus, to which I have referred. The note is as follows:

"Ll. William I., 2, below note; see Hovenden, ii., pref. p. 5, seq., where I have attempted to prove the spuriousness of the doc.u.ment called the Charter of William I., printed in the ancient 'Laws' ed. Thorpe, p.

211. The way in which the regulation of the Conqueror here referred to has been misunderstood and misused is curious. Lambarde, in the 'Archaionomia,' p. 170, printed the false charter in which this genuine article is incorporated as an appendiz to the French version of the Conqueror's laws, numbering the clauses 51 to 67; from Lambarde, the whole thing was transferred by Wilkins into his collection of ANGLO-SAXON laws. Blackstone's 'Commentary,' ii. 49, suggested that perhaps the very law (which introduced feudal tenures) thus made at the Council of Salisbury is that which is still extant and couched in these remarkable words, i. e., the injunction in question referred to by Wilkins, p. 228 Ellis, in the introduction to 'Doomsday,' i. 16, quotes Blackstone, but adds a reference to Wilkins without verifying Blackstone's quotation from his collection of laws, subst.i.tuting for that work the Concilia, in which the law does not occur. Many modern writers have followed him in referring the enactment of the article to the Council of Salisbury. It is well to give here the text of both pa.s.sages; that in the laws runs thus: 'Statuimus etiam ut omnis liber h.o.m.o foedere et sacremento affirmet, quod intra et extra Angliam Willelmo regi fideles esse volunt, terras et honorem illius omni fidelitate eum eo servare et ante eum contra inimicos defendere' (Select Charters, p. 80). the homage done at Salisbury is described by Florence thus: 'Nec multo post mandavit ut Archiepiscopi episcopi, abbates, comitas et barones et vicecomitas c.u.m suis militibus die Kalendarum Augustarem sibi occurent Saresberiae quo c.u.m venissent milites eorem sibi fidelitatem contra omnes homines jurare coegit.' The 'Chronicle'

is a little more full: 'Thaee him comon to his witan and ealle tha Landsittende men the ahtes waeron ofer eall Engleland waeron thaes mannes men the hi waeron and ealle hi bugon to him and waeron his men, and him hold athas sworon thaet he woldon ongean ealle other men him holde beon.'"

Mr. Stubbs had, in degree, adopted the view at which I had arrived, that the law or charter of William I. was an injunction to enforce the oath of allegiance, previously ordered by the laws of Edward the Confessor, to be taken by all FREEMEN, and that it did not relate to va.s.sals, or alter the existing feudalism.

As the subject possesses considerable interest for the general reader as well as the learned historian, I think it well to place the two authorities side by side, that the text may be compared:

LII. William I., as given by Eadments. "De fide et obsequio erga Regnum.

"Statuimus etiam ut omnes LIBERI HOMINES foedere et sacramento affirment quod intra et extra univereum regnum Anglise (quod olim vocabatur regnum Britanniae) Wilhielmo suo domino fideles ease volunt, terras et honores ilius fidelitate ubique servare c.u.m eo et contra inimicos et alienigenas defendere."

Charter from Textus Roffensis, given by Mr. Stubbs.

"Statuimus etiam ut omnis liber h.o.m.o feodere et sacramento affirmet, quod intra et extra Angliam. Willelmo regi fideles ease volunt, terras et honorem illius omni fidelitate c.u.m eo servare et ante eum contra inimicos defendere."

I think the doc.u.ments I have quoted show that Sir Martin Wright, Sir William Blackstone, and Messrs. Hallam and FREEMAN, labored under a mistake in supposing that William had introduced or imposed a new feudal law, or that the va.s.sals of a lord swore allegiance to the king. The introduction to the laws of William I. shows that it was not a new enactment, or a Norman custom introduced into England, and the law itself proves that it relates to FREEMEN, and not to va.s.sals.

The misapprehension of these authors may have arisen in this way: William I. had two distinct sets of subjects. The NORMANS, who had taken the oath of allegiance on obtaining invest.i.ture, and whose retinue included va.s.sals; and the ANGLO-SAXONS, among whom va.s.salage was unknown, who were FREEMAN (LIBERI HOMINES) as distinguished from serfs.

The former comprised those in possesion of Odhal (n.o.ble) land, whether held from the crown or its tenants. It was quite unnecessary to convoke the Normans and their va.s.sals, while the a.s.semblage of the Saxons--OMNES LIBERI HOMINES--was not only to conformity with the laws of Edward the Confessor, but was specially needful when a foreigner had possesed himself of the throne.

I have perhaps dwelt to long upon this point, but the error to which I have referred has been adopted as if it was an unquestioned fact, and has pa.s.sed into our school-books and become part of the education given to the young, and therefore it required some examination.

I believe that a very large portion of the land in England did not change hands at that period, nor was the position of either SERFS or VILLEINS changed. The great alteration lay in the increase in the quant.i.ty of BOC-LAND. Much of the FOLC-LAND was forfeited and seized upon, and as the king claimed the right to give it away, it was called TERRA REGIS. The charter granted by King William to Alan Fergent, Duke of Bretagne, of the lands and towns, and the rest of the inheritance of Edwin, Earl of Yorks.h.i.+re, runs thus:

"Ego Guilielmus cognomine b.a.s.t.a.r.dus, Rex Anglise do et concede tibi nepoti meo Alano Brittanias Comiti et hseredibus tuis imperpetuum omnes villas et terras qua nuper fuerent Comitis Edwini in Eboras.h.i.+na c.u.m feodis militise et aliis libertatibus et consuetudinibus ita libere et honorifice sicut idem Edwinus eadem tenuit.

"Data obsidione coram civitate Eboraci."

This charter does not create a different t.i.tle, but gives the lands as held by the former possessor. The monarch a.s.sumed the function of the fole-gemot, but the principle remained--the feudee only became tenant for life. Each estate reverted to the Crown on the death of him who held it; but, previous to acquiring possession, the new tenant had to cease to be his own "man," and became the "man" of his superior. This act was called "homage," and was followed by "invest.i.ture." In A.D. 1175, Prince Henry refused to trust himself with his father till his homage had been renewed and accepted, for it bound the superior to protect the inferior.

The process is thus described by De Lolme (chap, ii., sec. 1):

"On the death of the ancestor, lands holden by 'knight's service' and by 'grand sergeantcy' were, upon inquisition finding the tenure and the death of the ancestor, seized into the king's hands. If the heir appeared by the inquisition to be within the age of twenty-one years, the King retained the lands till the heir attained the age of twenty-one, for his own profit, maintaining and educating the heir according to his rank. If the heir appeared by the inquisition to have attained twenty-one, he was ent.i.tled to demand livery of the lands by the king's officers on paying a relief and doing fealty and homage. The minor heir attaining twenty-one, and proving his age, was ent.i.tled to livery of his lands, on doing fealty and homage, without paying any relief."

The idea involved is, that the lands Were HELD, and NOT OWNED, and that the proprietary right lay in the nation, as represented by the king.

If we adopt the poetic idea of the Brehon code, that "land is perpetual man," then HOMAGE for land was not a degrading inst.i.tution. But it is repugnant to our ideas to think that any man can, on any ground, or for any consideration, part with his manhood, and become by homage the "man"

of another.

The Norman chieftains claimed to be peers of the monarch, and to sit in the councils of the nation, as barons-by-tenure and not by patent.

This was a decided innovation upon the usages of the Anglo-Saxons, and ultimately converted the Parliament, the FOLC-GEMOT, into two branches.

Those who accompanied the king stood in the same position as the companions of Romulus, they were the PATRICIANS; those subsequently called to the councils of the sovereign by patent corresponded with the Roman n.o.bILES. No such patents were issued by any of the Norman monarchs. But the insolence of the Norman n.o.bles led to the attempt made by the successors of the Conqueror to revive the Saxon earldoms as a counterpoise. The weakness of Stephen enabled the greater fudges to fortify their castles, and they set up claims against the Crown, which aggravated the discord that arose in subsequent reigns.

The "Saxon Chronicles," p. 238, thus describes the oppressions of the n.o.bles, and the state of England in the reign of Stephen:

"They grievously oppressed the poor people with building castles, and when they were built, filled them with wicked men, or rather devils, who seized both men and women who they imagined had any money, threw them into prison, and put them to more cruel tortures than the martyrs ever endured; they suffocated some in mud, and suspended others by the feet, or the head, or the thumbs, kindling fires below them. They squeezed the heads of some with knotted cords till they pierced their brains, while they threw others into dungeons swarming with serpents, snakes, and toads."

The nation was mapped out, and the owners' names inscribed in the Doomsday Book. There were no unoccupied lands, and had the possessors been loyal and prudent, the sovereign would have had no lands, save his own private domains, to give away, nor would the industrious have been able to become tenants-in-fee. The alterations which have taken place in the possession of land since the composition of the Book of Doom, have been owing to the disloyalty or extravagance of the descendants of those then found in possession.

Notwithstanding the vast loss of life in the contests following upon the invasion, the population of England increased from 2,150,000 in 1066, when William landed, to 3,350,000 in 1152, when the great-grandson of the Conqueror ascended the throne, and the first of the Plantagenets ruled in England.

V. THE PLANTAGENETS.

Whatever doubts may exist as to the influence of the Norman Conquest upon the ma.s.s of the people--the FREEMEN, the ceorls, and the serfs--there can be no doubt that its effect upon the higher cla.s.ses was very great. It added to the existing FEUDALISM--the system of Baronage, with its concomitants of castellated residences filled with armed men.

It led to frequent contests between neighboring lords, in which the liberty and rights of the FREEMEN were imperilled. It also eventuated in the formation of a distinct order-the peerage--and for a time the const.i.tutional influence of the a.s.sembled people, the FOLC-GEMOT, was overborne.

The princ.i.p.al Norman chieftains were barons in their own country, and they retained that position in England, but their holdings in both were feudal, not hereditary. When the Crown, originally elective, became hereditary, the barons sought to have their possessions governed by the same rule, to remove them from the cla.s.s of TERRAREGIS (FOLC-LAND), and to convert them into chartered land. Being gifts from the monarch, he had the right to direct the descent, and all charters which gave land to a man and his heirs, made each of them only a tenant for life; the possessor was bound to hand over the estate undivided to the heir, and he could neither give, sell, nor bequeath it. The land was BENEFICIA, just as appointments in the Church, and reverted, as they do, to the patron to be re-granted. They were held upon military service, and the major barons, adopting the Saxon t.i.tle Earl, claimed to be PEERS of the monarch, and were called to the councils of the state as barons-by-tenure. In reply to a QUO WARRANTO, issued to the Earl of Surrey, in the reign of Edward I., he a.s.serted that his ancestors had a.s.sisted William in gaining England, and were equally ent.i.tled to a share of the spoils. "It was," said he, "by their swords that his ancestors had obtained their lands, and that by his he would maintain his rights." The same monarch required the Earls of Hereford and Norfolk to go over with his army to Guienne, and they replied, "The tenure of our lands does not require us to do so, unless the king went in person."

The king insisted; the earls were firm. "By G.o.d, sir Earl," said Edward to Hereford, "you shall go or hang." "By G.o.d, sir King," replied the earl, "I will neither go nor hang." The king submitted and forgave his warmth.

The struggle between the n.o.bles and the Crown commenced, and was continued, under varying circ.u.mstances. Each of the barons had a large retinue of armed men under his own command, and the Crown was liable to be overborne by a union of ambitious n.o.bles. At one time the monarch had to face them at Runnymede and yield to their demands; at another he was able to restrain them with a strong hand. The Church and the barons, when acting in union, proved too strong for the sovereign, and he had to secure the alliance of one of these parties to defeat the views of the other. The barons abused their power over the FREEMEN, and sought to establish the rule "that every man must have a lord," thus reducing them to a state of va.s.salage. King John separated the barons into two cla.s.ses--major and minor; the former should have at least thirteen knights' fees and a third part; the latter remained country gentlemen.

The 20th Henry III., cap. 2 and 4, was pa.s.sed to secure the rights of FREEMEN, who were disturbed by the great lords, and gave them an appeal to the king's courts of a.s.size.

Bracton, an eminent lawyer who wrote in the time of Henry III., says:

"The king hath superiors--viz., G.o.d and the law by which he is made king; also his court--viz., his earls and barons. Earls are the king's a.s.sociates, and he that hath an a.s.sociate hath a master; and therefore, if the king be unbridled, or (which is all one) without law, they ought to bridle him, unless they will be unbridled as the king, and then the commons may cry, Lord Jesus, pity us," etc.

An eminent lawyer, time of Edward I., writes:

"Although the king ought to have no equal in the land, yet because the king and his commissioners can be both judge and party, the king ought by right to have companions, to hear and determine in Parliament all writs and plaints of wrongs done by the king, the queen, or their children."