of the nobility were slain, determined the fate of England. However,
many of the great men survived, and the bulk of the nation were averse
to his pretensions. A weak attempt was made to set up Edgar Atheling,
the only prince remaining of the royal race, but the intrigues of the
clergy, who were almost universally on the invader’s side (on account of
his being under the protection of the pope, and having received from him
a consecrated banner) co-operating with the approach of his victorious
army, soon put an end to Edgar’s shadow of royalty. He submitted, as did
his associates, and they were all received, not only with kindness but
with many high marks of distinction. William, accordingly, was crowned
with the unanimous consent of the nation, upon swearing to the laws of
Edward the Confessor; and it must be owned he behaved, during his first
stay, with the utmost equal justice and impartiality between the Normans
and natives. But the continuing to act in that manner did not consist
with his views, which were principally two; the first to gratify his
hungry adventurers with lands, the next to subvert the English law, and
introduce the feudal and Norman policy in lieu of it[330].
The first step he made there was no finding fault with. It was now
allowed, that William’s title was legal from the beginning, and that
Harold was an usurper, and all that adhered to him rebels. He made
enquiry for all the great men that fell in battle on Harold’s side. Their
lands he confiscated, and distributed, upon the terms of the Norman law,
to his followers; but these were not half sufficient to satisfy the
expectants, and the English were still too powerful, as he had pardoned
all those who survived. He therefore returned to Normandy, carrying
Edgar and the chief of the English nobility with him, under pretence
of doing them honour, but in reality, that they might be absent while
his views were carrying on; and in the mean time he left his scheme to
be executed by his Normans, and those he had appointed his regents. I
say _his_ scheme, for his interest, to exalt one side and depress the
other, on which he could not depend, almost forced him to this conduct.
The oppressions, therefore, were so exorbitant in his absence, as must
necessarily have driven a people to rebel, and for which a man of justice
would think the real delinquents ought to be the persons punished, whilst
the unhappy nation merited the freest pardon, for whatever they did when
actuated by a despair, proceeding from the denial of justice. But that
he himself was the immediate source of these distresses is evident from
his temper, which was such, that no regents of his durst have acted as
they did without his approbation. The Normans began by encroaching on
their neighbours the English, nay with forcibly turning them out of their
entire possessions. If these applied to the regents in the _curia regis_,
there was no redress. If they retaliated the injuries they suffered, they
were declared outlaws and rebels[331].
These proceedings threw the whole nation into a flame, and, had they
had a leader of sufficient weight and abilities to head them, William,
perhaps, might have been dethroned; but the right heir, and all the
men he feared, were out of the kingdom. They produced, therefore,
only ill-concerted, unconnected insurrections, headed by men of no
considerable figure, provoked by private wrongs; and these being easily
suppressed, afforded a fund of new confiscations, which he disposed of
in the same manner as the former, and thereby spread the use of the
feudal law further into several parts of England. However, though he did
not spare the insurgents, nor punish his officers that had occasioned
those commotions, he did not, as some have asserted, seize all the
lands of England as his by right of conquest; for, when he came over,
his court was open to the complaints of the English, and if any of them
could undeniably prove, as indeed few of them could, that they had never
assisted Harold, or been concerned in the late disturbances, they were
restored to their lands as they held them before; as appears from the
case of Edwin Sharrburn, and many others. By these means William obtained
the first of his great ends, the transferring almost all the lands of
England to his followers, and making them inheritances, descendible
according to the Norman law.
But as to the inheritances that still remained in English hands, had he
not proceeded somewhat farther, they would have gone in the old course,
and been free from the burthen of feudal tenure. But how to alter this,
and to subject the few allodial lands, as also the church lands, to the
Norman services, was the question; for he had sworn to observe Edward’s
laws. The alteration, therefore, must be made by the _commune concilium_,
or parliament, and this he was not in the least danger of not carrying,
in a house composed of his own countrymen, enriched by his bounty, and
who were born and bred under the law he had a mind to introduce; and
who could not be well pleased to see some of the conquered nation enjoy
estates on better terms than themselves the conquerors. The pretence
of calling this assembly, which was convened in the fourth year of
his reign, was very plausible. The English had grievously and justly
complained of the constant violation of the Saxon laws, and the only
extenuation that could be made for this, and which had some foundation
in truth, was, that the king and his officers were strangers, and not
acquainted with that law. He therefore summoned this _commune concilium_,
or parliament, to ascertain what the antient law was, and to make such
amendments thereto, as the late change and circumstances of affairs
required. And, for their instruction in the old law, which was but partly
in writing, most of it customary, he summoned twelve men, the most
knowing in the laws of England, out of each county, to assist and inform
them what those laws were.
Accordingly, we find the laws of William the First are, in general,
little other than transcripts of the Saxon laws or customs. However,
there are two, which were intended to alter the military policy of the
kingdom, to abolish the _trinoda necessitas_, and in its lieu, to make
the lands of the English, and of the church liable to knights service,
as the Normans lands were by his new grants, and thereby make the system
uniform. His fifty second law is entirely in feudal terms, and was
certainly drawn up by some person skilled in that law, for the purpose I
have mentioned. It runs thus: _Statuimus ut omnes liberi homines fædere
& sacramento affirment, quod intra et extra universum regnum angliæ,
Willielmo Domino suo fideles esse volunt, terras & honores illius ubique
servare cum eo, & contra inimicos & alienigenas defendere_[332].
I shall make a few remarks on the wording of this law; and first on the
word _statuimus_. Wright[333] observes, that it being plural, implies
that this was not by the king alone, but by the _commune concilium_,
or parliament, for the stile of the king of England, when speaking of
himself was for ages after in the singular number, and in the subsequent
part he is plainly distinguished from the enactors of the law; for it
is not _mihi_, or _nobis fideles esse_, but _Willielmo Domino suo_ in
the third person, nor, _terras & honores meos_ or _nostros servare_, but
_terras & honores illius_; and indeed, in the subsequent law I shall
mention it is expressly said in effect, that the subjecting the free
lands to knight service was _per commune concilium_. Secondly, the words
_liberi homines_ is a term of the feudal law, properly applicable to
allodial tenants, who held their lands free from the military service
that vassals were obliged to: And in this sense was it used in France
also, from whence William came. In these words were included also, the
men of the church, for as their lands were before subject to the _trinoda
necessitas_, it was reasonable when that was abolished, they should be
subject to this that came in the lieu of it. _Fædere_ and _sacramento
affirment_. _Fædus_ is the homage, which, though done by the tenant only
to the lord, was looked upon by the feudists as a contract, and equally
bound both parties, as is _sacramentum_; as appears after the feudal
oath of fealty; and they are placed in the order they are to be done,
homage first and then the oath of fealty. _Willielmo Domino suo_, not
_regi_, not the oath of allegiance as king, but the oath of fealty from
a tenant to a landlord, for the lands he holds. _Fidelis_ is the very
technical word of the feudal law for a vassal. But the words _intra &
extra universum regnum angliæ_ are particularly to be observed: For these
made a deviation from the general principles of the feudal law, and one
highly advantageous to the kingly power. By the feudal law no vassal
was obliged to serve his lord in war, unless it was a defensive war, or
one he thought a just one, nor for any foreign territories belonging
to his lord, that was not a part of the seignory of which he held; but
this would not effectually serve for the defence of William. He was duke
of Normandy, which he held from France, and he knew the king of that
country was very jealous of the extraordinary accession of power he had
gained by his new territorial acquisition, and would take every occasion,
just or unjust, of attacking him there; in short, that he must be almost
always in a state of war. Such an obligation on his tenants, of serving
every where, was of the highest consequence for him to obtain; nor was
it difficult, as most of them had also estates in Normandy, and were by
self-interest engaged in its defence.
The next law of his I shall mention is the fifty-eighth, which
enjoins all who held lands by military service, and some others, to
be in perpetual readiness. It runs to this effect: “We enact and
firmly command, that all earls and barons and knights and servants,
_servientes_, (that is the lower soldiers, not knighted, who had not
yet got lands, but were quartered on the abbeys,) and all the freemen,
(namely the Saxon freeholders, and of the tenants of the church,
which now was subjected to knights service) of our whole aforesaid
kingdom, shall have and keep themselves well in arms, and in horses,
as is fitting, and their duty; and that they should be always ready,
and well prepared to fulfil and to act whensoever occasion shall be,
according to what they ought by law to do for us from their fiefs and
tenements; and as we have enacted to them by the _commune concilium_ of
our whole kingdom aforesaid; and have given and granted to them in fee
in hereditary right.” The great effect of this law was to settle two
things, not expressly mentioned in the former; the first to shew the
nature of the service now required, knight service on horseback; and the
other, to ascertain to all his tenants, Saxons as well as Normans, the
hereditary right they had in their lands, for if that had not been done
by this law, as now all lands were made feudal, and their titles to them
consequently to be decided by that law, they might otherwise be liable
to a construction, according to its principles, that any man, who could
not shew in his title _words of inheritance_, which the Saxons generally
could not, was but tenant for life[334].
This general law then put all on the same footing, and gave them
inheritances, as they had before, but of another nature, the feudal one,
and consequently, made them subject to all its regulations. From this
time, and in consequence of these laws, the maxim prevailed, that _all
lands in England are held from the king_, and that they all proceeded
from his free bounty, as is strongly implied in the word _concessimus_;
and hence some, indeed many, have imagined that the conqueror seized
all the lands of England, as his by right of conquest, and distributed
them to whom, and on what terms he pleased. With respect to the greater
part, which he gave to his Normans, this is true; but it appears from
the records of his time, that it was not universally the case. The laws
I have mentioned so changed the nature of the inheritances, which he did
not seize, that they were subject to all the same consequences, as if
he had so done; though in truth, with respect to the Saxons, he did not
dispossess them. It was but a fiction in law.
I have mentioned that he made the lands of the church liable to knights
service, in lieu of the military expedition they were subject to before;
but this is to be understood with some limitation. For where the lands
of an ecclesiastical person, or corporation, were barely sufficient
to maintain those that did the duty, they, for necessity’s sake, were
exempted; and the Saxon expedition being abolished, the contribution
thereto fell with it, and they became tenants in _frankalmoine_, or
_free alms_. But where an ecclesiastical corporation was rich, and
able, besides their necessary support, according to their dignity, they
were, by these laws, under the words _liberi homines_, subjected to the
new ordained military service, as they had been before to the old, and
according to their wealth, were obliged to find one or more knights or
horsemen. If they were obliged to furnish as many as a baron regularly
was, they were barons, as all the bishops and many of the great abbots
were; and, as barons, sat in the _commune concilium_; whereas, before,
the clergy in general sat in parliament, as well as the laity, not as a
separate body, nor invested with separate rights, but both clergy and
laity equally concurred in making laws, whether relative to temporal
affairs or spiritual; though, with respect to the latter, it may well
be inferred, from the ignorance of the times, that they had almost the
entire influence. But after this time the clergy became a separate body
from the laity, had distinct interests also, and a separate jurisdiction;
nay, I may say, became, in some degree, a separate branch of the
legislature, by the right they claimed, and exercised, of making canons
to bind laity as well as clergy[335]. But the explaining this would carry
me too far at present, so I shall defer it to my next lecture.
In the mean time, I shall just recapitulate the prodigious alteration,
as to the properties of landed estates in England, introduced by the two
laws of the conquerors, I have mentioned, from what was their nature and
qualities before that time. They had been the absolute proprieties of
the owner, (I speak in general,) they could be aliened at pleasure, they
could be devised by will, were subject to no exactions on the death of
the owner, but a very moderate settled herriot paid by the executor. In
the mean time, on the death of the ancestor, the heir entered without
waiting for the approbation of the lord, or paying any thing for it; and
his heir, if there was no will, was all the sons jointly. No wardship,
or marriage, was due or exacted, if the heir was a minor. All these, by
the feudal customs being introduced, were quite altered. Lands could no
longer be aliened without the consent of the lord. No will or testament
concerning them availed any thing. The heir had no longer a right to
enter into his ancestor’s inheritance immediately on his death, until
he (not the executor) had paid a relief (and that not a moderate one)
and been admitted by the lord. The heir, likewise, was not all the sons
jointly, but one, first, such as the lord pleased to prefer; at length
it became settled universally in favour of the eldest; and the fruits of
tenure, wardship, marriage and relief (for the Saxon herriot was, as I
have mentioned, a different thing) came in as necessary attendants of a
feudal donation.
No wonder, then, that it has been said William introduced a new law, the
Norman one. He certainly did so as to landed estates; but this, as I have
observed before, by the consent of his parliament, who, being Normans,
were as well pleased with the change as himself; but it is not true
with respect to the other old Saxon laws, which did not clash with the
design of introducing the military feudal system. Them he confirmed, and
his feudal laws were called only emendations. However, certain it is,
his secret design was to eradicate even the Saxon, the laws he had, in
pursuance of his coronation oath, confirmed, and that he took many steps
thereto; which though they had not the full effect he intended, wrought
considerable changes. What these were, and the consequences of them,
shall be the subject of the next lecture.
LECTURE XXIX.
_The alterations introduced by William, as to the
administration of justice—The Judges of the Curia Regis are
appointed from among the Normans—The county courts decline—The
introduction of the Norman language—The distinction between
courts of record, and not of record—The separation of the
spiritual and temporal courts—The consequences of this measure._
William, by altering the nature of land estates, and the conditions upon
which they were held, had proceeded a good way in his second capital
design, the introduction of the Norman, and the abolishing of the Saxon
law. And farther than that, it was not proper nor consistent with his
honour, who had sworn to Edward’s laws, to proceed openly. However he
formed a promising scheme for sapping and undermining the Saxon law
by degrees. First, he appointed all the judges of the _curia regis_,
from among the Normans, persons fond of their own law, ignorant of the
English, and therefore incapable, even if they had a mind, to judge
according to it.
Before his time this court only meddled with the causes of the great
lords, or others that were of great difficulty, but now it was thought
proper to discourage the county courts, and to introduce most causes
originally into the superior court; and for this there was a reasonable
pretence, from the divisions and factions between the two nations and the
partialities that must ever flow from such a situation of affairs. The
ancient laws of England had been written, some in the Saxon, some in the
Latin tongue, and the laws of William, and of many of his successors,
were penned in the latter language. But in the _curia regis_ all the
pleadings henceforward were entered in the Norman tongue, the common
language of his court, as were also, all the proceedings therein, until
the time of Edward the Third. This introduced the technical law terms
and with those came in the maxims and rules of administering justice
belonging to that people, which gradually, wherever they differed
from, superseded the English. Hence proceeded the great affinity I may
say, identity, between the antient law of Normandy, as set forth in the
_coutumier_ of that country, and the law of England, as it stood soon
after the conquest.
The analogy, however, did not arise from this alone. Though England
borrowed most from Normandy, yet, on the other hand, Normandy borrowed
much from England. William, for the ease of his people, who had occasion
to frequent his court, or had suits in the _curia regis_, established
schools for instructing persons in this language, and obliged parents of
substance to send their children thither, which had the consequence of
abolishing the old Saxon tongue, and forming a new language, from the
mixture of both[336].
This introduction of a new language, together with the exaltation of
the _curia regis_ and the consequent depression of the county courts,
introduced, as I apprehend, the distinction between the _courts of
record_, and _not of record_, and made the county courts considered of
the latter kind. Courts of record are such whose proceedings are duly
entered, which, at that time, was to have been done in the Norman tongue,
and which proceedings are of such weight, as, unless reversed, for ever
appearing from the record, can never be gainsaid or controverted. Now,
to allow such a privilege to the proceedings of the inferior courts,
the county ones, where the suitors were judges, and where, besides, the
proceedings were in the English language, would have been contrary to the
policy of that time, and would have tended, rather to the confirmation
than depression of the old law. The spiritual courts, also, are not
allowed to be courts of record, and that, I presume, because they were
antiently a part of the county courts, and separated from them, as I
shall shew presently in this reign, and therefore could have no greater
privilege than the court from which they were derived. However some
inferior courts, such as the _tourn_, and the leet, were allowed to be
courts of record, and that, I conceive, both for the benefit of the
realm, and the profit of the king; for these were criminal courts, where
public offences were punished, and therefore should have all weight given
them, and where the king’s forfeitures and fines for crimes were found.
I have observed before, that the courts, in the Saxon times, were
mixed assemblies, where the bishop and sheriff presided, and mutually
assisted each other, and where the bishop, I may add, had a share in the
amerciaments and fines. But in this reign the spiritual and temporal
courts were separated by William, a thing which afterwards was of bad
consequence to many of his successors, but was, at the time, very
serviceable to the views he then had. This was certainly done partly to
oblige the pope, who had espoused his title, and at this time was setting
up for the universal lord of churchmen, though, in after times, they
carried their pretensions much higher[337].
One great engine the popes set on foot to attain the power they aimed
at, was to make a distinction between _clergy_ and _laity_, to have
the matters relating to the former, as well the merely spiritual as
the temporal rights they had acquired, cognizable only in their own
jurisdictions; and, to preserve the distinction stronger, to forbid their
interfering in the temporal courts, upon pretence of their time being
taken up in spiritual exercises, and particularly, that it suited not the
piety and charity of a clergyman, even by his presence, to countenance
the proceeding to sentence of death, or the mutilation of limbs. Many
were the laws they made for this purpose, upon motives of pretended
piety; and the circumstances and practices of the times contributed
greatly to their success. The emperors, kings, and great lords, had the
nomination to bishoprics, and other benefices, as their ancestors had
been the founders, and their lands were held from them. But shameful was
the abuse they made of this power. Upon pretence of the clergy being
their beneficiary tenants, according to the principles of the feudal law,
they exacted reliefs, and arbitrary ones from them before investiture,
or, to speak in plain terms, they sold them on Simoniacal contracts to
the highest bidder, as the Conqueror’s son William did afterwards in
England; so that the profligate and vicious were advanced to the highest
dignities, while the conscientious clergy remained in obscurity; nay, if
they could get no clergyman to come up to their price, they made gifts of
the title and temporalities to laymen, nay, to children; it was a matter
of little concern that there was no one to do the spiritual office.
Such practices, (and they were too common) gave just and universal
offence to all sober persons, so that the popes were generally
applauded for their aiming at the reformation of the evils, and for the
endeavouring, by their decrees, to reform the morals of the corrupt
clergy, and to restore an elective manner of conferring benefices, though
their real design was first to become the protectors of the clergy,
next, their lords and masters, and then, by their means, to tyrannize
over the laity; a plan which they carried into execution with too much
success. This plan was in the height of its operation in William’s reign.
The foundation of it had been laid before, as I observed, in the many
distinctions made between clergy and laity, and the prohibiting the
first, except some great ones, from meddling with secular affairs, or
tribunals. This reparation, however, had not yet taken place in England,
and it is not a wonder that William, who had peculiar views of his own in
it, as I shall observe, thought it reasonable to oblige his benefactor
the pope, and to conform the constitution of this church and nation to
that of France, where the clergy were a separate body.