from his personal character, his avarice. By the bishop’s ceasing to
be a judge in the temporal courts, he lost his share of the mulcts or
fines imposed therein, and in consequence the king’s two-thirds of them
were encreased. But his other view lay deeper. To comprehend this, we
must remember how great was the ignorance of those ages. Scarce a man,
except a clergyman, could read or write, insomuch that being able to
read was looked upon as a proof of being in orders. Many even of the
greatest lords could not write their names, but signed _marks_; and from
this ignorance it was that proceeded the great weight our law gives to
_sealing_ above _signing_ any instrument, and that sealing is what makes
it a man’s deed. It followed from hence that the laity must be grossly
ignorant in point of the laws. Their knowledge could extend no farther
than as they remembered a few particular cases, that fell under their own
observation; whereas the clergy had the benefit of reading the written
laws, and consulting the proceedings thereon, in the rolls of the courts
of justice, and they were the only lawyers of the times; insomuch that it
became a proverb, _nullus clericus nisi causidicus_.
What method then could so effectually answer the king’s end of making
the Saxon law fall into oblivion, which he could not openly abolish,
after having solemnly sworn to observe it, as the removing from the
courts of justice those persons who only knew it, and could oppose any
innovation his Norman ministers should attempt to introduce. This policy,
however, as artfully as it was laid, had not its full effect; for many
of the clergy, unwilling to lose so gainful a trade, appeared still
in these courts in disguise, as laymen, and at this time it is very
probably conjectured that that ornament of the serjeant at law’s dress,
the _coiff_, was introduced, and for this very purpose of hiding the
tonsure, which would have shewn them to be clerks. This their attendance,
in some degree, frustrated the scheme, and many of the Saxon laws, such
especially as were repeated in William’s, kept their ground, but many
more were forgotten.
I mentioned that one motive of William’s to separate the jurisdictions,
was to oblige the pope, to whose favour he owed much, yet it ought to
be observed to his honour, that he maintained the independency of his
kingdom with a royal firmness. Pope Gregory, commonly called Hildebrand,
who was the first that ventured so far as to excommunicate sovereign
princes, as he did the emperor no less than four different times,
conceiving William could not sit securely on his throne without the aid
of his see, demanded of him homage for the kingdom of England, and the
arrears of Peter’s pence; grounding his claim of superiority on his
predecessor’s consecrated banner, and that Peter-pence was the service
by which the kingdom was held from the holy see. But he found he had a
man of spirit to deal with. William allowed the justice of the demand
of Peter-pence, and promised to have it collected and paid, not as a
tribute, but as a charitable foundation, as in truth it was, to support
a college of English students at Rome, for the benefit of the English
church. As to _homage_, he absolutely refused it, and declared he held
his crown from God alone, and would maintain its independence; and to
convince the pope he was in earnest, he issued an edict forbidding, on
their allegiance, his subjects to acknowledge any person for sovereign
pontiff, until he had first acknowledged him. So bold a step convinced
Gregory, who was already sufficiently embroiled with the emperor, that
this was no fit time to push things; and so he dropped his project,
but without retracting it; for the court of Rome never did in any case
formally recede from a pretension it had once advanced.
The consequences of the separation of the ecclesiastical from the
temporal jurisdiction were many. It naturally occasioned controversies
concerning the respective limits, and these gave rise to the _curia
regis_ interposing in these matters, and, by prohibitions, preventing one
from encroaching upon the other. The great contest was concerning suits
for benefices, or church livings, which the clergy contended were of
_spiritual_, and the king’s courts, of _temporal_ cognizance. And this,
indeed, was the great question that, in those days, divided the Christian
world abroad. However in England, the clergy were, at length, foiled in
this point. But a much greater evil arose from this separation. It is
a maxim of all laws, that no man should be twice punished for the same
crime, and this just maxim the clergy, in favour of the members of their
own body, perverted in a shocking manner. If a clerk committed murder,
rape, or robbery, the bishop tried and condemned him to penance; and
this sentence was made a pretence of not delivering him to the temporal
courts, to be tried for his life. This was one of the great disputes
concerning the constitutions of Clarendon, in Henry the Second’s time,
between him and archbishop Becket[338].
At length, about Henry the Third’s reign, the limits between the several
jurisdictions were pretty well settled, and by subsequent statutes, and
judicial resolutions, are confined to the respective limits they are
now under. Indeed, since the Reformation, as the credit of the canon
law has declined, on account of the dilatory proceedings, and the use
of excommunication upon every trifling contempt, the reputation of the
ecclesiastical courts has greatly fallen, and prohibitions are now
issued, in many cases, where they could not have been granted in former
times. Yet, if we examine accurately, we shall find that these great
complaints, which, it must be owned, are in the general just, namely, of
dilatoriness and excommunications, proceeded from the separation of the
two courts by William. Before, when the courts sat together, the sheriff
assisted the bishop, and by his temporal power compelled the parties to
appear, and submit to the sentence, if they were contumacious against
excommunication. But when they were separated, the bishop was left to his
spiritual arms, merely, excommunication; and as the consequences of such
a sentence were, in the superstitious times, looked on as very dreadful,
and are really severe in law, several intermediate processes and notices
were necessary before they proceeded to that extremity; and this gave
opportunity to litigious persons to disobey every order the court made in
a cause, until they came to the brink of excommunication, and that way,
by repeated contumacies, to spin out causes to an unconscionable length.
And the want of other arms compelled these courts, on very trifling
contempts, to enforce their orders by excommunication, which, it must be
owned, according to its primitive and right use, should be reserved only
for flagitious immoralities[339].
Another evil consequence that flowed from this separation of these
courts, was, that the pope cunningly got his, the canon law, introduced
into the ecclesiastical courts, which made him the head of the church,
introduced appeals to him, and in effect, robbed the king of so many
subjects in ecclesiastical affairs, whereas, before, though there might
be references in cases of difficulty for advice to Rome, there were
no appeals thither. The _curia regis_ was to reform ecclesiastical
judgments, and the ecclesiastical, as well as temporal jurisdiction, was
the king’s.
Another evil consequence, and it is the last I shall mention, of this
alteration, was the setting up two legislatures, if I may say so, in the
kingdom. In the antient time all laws were made in the same assembly,
but now, the clergy being separated from the laity, when a parliament
was called, the business became divided; ecclesiastical matters, and
the taxes on the clergy, were handled in the convocation, as temporal
matters, and the taxes on the laity, were in parliament. This contributed
to the further clashing of jurisdictions. For it must be owned the
convocation exceeded their powers, and made canons about things merely
temporal; which, however, they contended to be spiritual; and sometimes
contrary to the express law of the land, nevertheless they by the
superstitious and ignorant, who knew not the distinction between such
things, were generally obeyed, and hence from such submission it is,
that, by custom, in several places, tythes are payable of things that are
not tythable at common law.
The right of the convocation’s canons binding the laity in spiritual
matters was never doubted in the times of popery, nay till Charles the
First’s time, if they had the approbation of the king, who was the head
of the church, it was the general opinion, except among the Puritans.
But since that time their jurisdiction is settled on a reasonable
footing. Their canons bind no man, spiritual or lay, in temporal matters.
They bind no layman in spiritual matters; but they bind the clergy
in spiritual matters, provided that no right of the laity is thereby
infringed. As for instance, there is a canon forbidding clergymen to
celebrate marriage out of canonical hours. This doth not bind even a
clergyman, for if it did, it would strip the laity of their right of
being married at any hour. However it is to be considered whether a canon
of the convocation is a new ordinance, or only a repetition of the old
ecclesiastical law. If the latter, it binds all men, spiritual and lay,
not as a canon, but as the law of the land.
LECTURE XXX.
_Robert Duke of Normandy, and William Ruffus, dispute the
succession to the Conqueror—The English prefer the latter—The
forest laws—The cruelty and oppressions of William—The
advancement of Henry, the Conqueror’s youngest son, to the
crown of England—He grants a charter—The nature of this
charter—His dispute with Anselm concerning Investitures—The
celibacy of the clergy—State of the kingdom under Stephen._
William the Conqueror left three sons, Robert, William and Henry. The
eldest, Robert, according to the established rules of the French fiefs,
succeeded in Normandy, and on account of his primogeniture laid claim
also to the crown of England; but what right that gave him, might in
those days, well be a question. In the Saxon times the rule was to elect
a king out of the royal family, and the election generally fell on the
eldest son, though not universally; for the line of Alfred reigned in
prejudice to the descendants of his two elder brothers. Edred succeeded
to his brother Edmund, in prejudice of Edmund’s two sons; again, on
Edred’s death, his son was excluded, and Edmund’s eldest son resigned;
and lastly Edward the Confessor was king, though his elder brother’s
son was living. So that priority of birth was rather a circumstance
influencing the people’s choice, than what gave an absolute right of
succession[340].
Another thing, it might be pretended, should determine this point,
that is, as William claimed the crown through the will, as he said, of
the Confessor, he also had not a power to bequeath the crown. When,
therefore, he was making his will he was applied to on this head, but the
approach of death seems to make him acknowledge that his only just title
was his _election_, for though he hated his son Robert, and was extremely
fond of William, he refused to dispose of it by will. He only expressed
his wish that William might succeed, and dispatched him to England, with
letters to Lanfranc archbishop of Canterbury, requesting him to influence
the election in his favour, and he accordingly was crowned. Indeed, it
seems a little odd that William, whose bad qualities were universally
known (for he had not one single virtue, except personal bravery) should
be preferred to Robert, who, with that virtue, possessed all the amiable
virtues of humanity.
That the native English should prefer any one to Robert is not to be
wondered at, as he had, on all occasions, expressed the highest aversion
to them, but they had no influence in the matter and it appears, at first
view, the interest of the English lords, most of whom had also estates in
Normandy, to be subject to one monarch, and not have their estates liable
to confiscation, on taking part with one of the brothers against the
other. But the interest of Lanfranc and the clergy, added to his father’s
treasure, which he had seized, and distributed liberally, bore down all
opposition; and indeed, it is probable that Robert’s disposition, which
was well known, operated in his disfavour; for his extreme indolence and
prodigality, and his scruples of using improper means for attaining the
most desirable ends (whereas William was extremely active and would stick
at nothing) made it easy for persons of any penetration to see in whose
favour the contest between the two brothers must end[341].
We have little to say of the laws in his time, for he regarded no laws,
divine or human, ecclesiastical or temporal. He chose for judges and
courtiers the most profligate persons he could find. And one of the great
oppressions his people laboured under was the extending, and aggravating
the forest laws. The _forests_ were large tracts of land, set apart
by his father for the king’s hunting out of the royal demesnes; and
consequently William his father had by his own authority, made laws, and
severe ones, to be observed in these districts for the preservation of
the game, and erected courts to try offenders, and trespassers in his
forests. The great intention of these courts was to fleece his subjects,
who were as fond of hunting as their sovereign, by mulcts and fines; and
in truth, these were the only oppressions his countrymen, the Normans,
suffered under the Conqueror.
But Ruffus flew out of all bounds. He introduced the _lawing_, as it
is called, the Hamstringings of Dogs; nay, he made a law, by his own
authority, to make the killing of a deer capital. On pretence of this law
he seized many of the great and rich, confined them for years, without
bringing them to tryal, until he forced them to compound, and to give up
the better part of their estates. Not content with harrassing the laity,
he laid sacrilegious hands on the church revenues. Whenever a rich abbey,
or bishoprick, fell vacant, he laid his hands on the temporalities, kept
them vacant for years, as he did that of Canterbury four years; and even,
when he was prevailed upon to fill them, he openly set them to sale in
his presence, and gave them to the best bidder. However, in a violent
fit of sickness, he promised to reform, and did till he recovered his
strength, when his reformation vanished. The remonstrances of his clergy,
or the pope, had no effect with him; and, indeed, the circumstances of
the times were favourable. For as there were two popes, one made by the
emperor, the other, by the Romans, who disowned the imperial authority in
that respect, William acknowledged neither, and each was afraid to drive
him into his adversaries party, by proceeding to extremities.
These enormities raised him so many enemies among his subjects, of all
kinds, that Robert had a strong party, and an insurrection was begun
in his favour, which William, profiting of Robert’s indolence, easily
suppressed, and then invaded him in Normandy, and was near conquering it,
as, by a sum of money, he detached the king of France from the alliance,
if he had not been invaded by Scotland, in favour of Robert. He patched
up, therefore, a peace with him, ratified by the barons on both sides,
the terms of which were, that the adherents of each should be pardoned,
and restored to their estates, and the survivor succeed to the other[342].
Thus there was a legal settlement of the crown of England made, which
ought to have taken place, but did not. For William being accidentally
killed in hunting, while Robert was absent in Italy, on his return from
the holy war, Henry the youngest son, took the advantage, and seizing
his brother William’s treasure, was crowned the third day, after a very
tumultuous election, the populace threatening death to any that should
oppose him. The reason of their attachment to him was, that he was, by
birth, an Englishman, and therefore, they hoped for milder treatment
from him than they had met from his two Norman predecessors. Besides he
had promised a renewal of the Confessor’s laws, with such emendations as
his father had made. And in pursuance of this promise, as soon as he was
crowned, he issued a charter, containing the laws as he now settled them,
and sent copies of it to every cathedral in his kingdom.
These laws were, as to the bulk of them, the old Saxon constitutions,
with the addition of the Conqueror’s law of fiefs, and some things taken
from the compilations of the canon law. However, with respect to the
feudal law, he, in many instances, moderated its severity. With respect
to _reliefs_, he abolished the arbitrary and heavy ones which William
had exacted, and restored the moderate, and certain ones, which his
father had established. With respect to the _marriage_ of his vassal’s
children, he gave their parents and relations free power of disposing
of them, provided they did not marry them to his enemies, for obviating
which, his consent was to be applied for, but then he expressly engaged
not to take any thing for his consent; and the _wardships_ of his minor
tenants he committed to their nearest kindred, that they might take care
of the persons and estates of the ward, and account with him for the
profits during the minority, upon reasonable terms. He even, in some
degree, restored the Saxon _law of descents_, and permitted alienation
of lands. For if a man had several fiefs, and several sons, the eldest
had the principal one, on which was the place of habitation, only, and
the rest went among the sons, as far as they would go; and if a man
purchased or acquired land (as land might be alienated by the feudal law,
with the consent of the superior lord,) such acquisitions by the laws of
Henry, he was not obliged to transmit to his heirs; but might alien at
pleasure[343].
This mitigation of the former law was very agreeable to his people,
both English and Normans. The former were pleased to see the Saxon law
so nearly restored, and the latter, harrassed with the oppressions of
William, were glad to have the heavy burthens of their tenures lightened;
and indeed, began, by degrees, to relish the old English law, and to
prefer it to their own.
To attach the bulk of his subjects to him still more strongly, he took
another very prudent step. He married Maud the daughter of the king of
Scotland, by Edgar Atheling’s sister, so that in his issue the blood
of the Norman and Saxon kings were united. But still he was not firmly
settled, until the affairs of the church, and the right of lay persons
granting investitures of church livings were settled. He intended to
proceed in the same manner that his father and brother had done. He
accordingly named persons to the vacant bishopricks, and recalled Anselm,
archbishop of Canterbury, who had lived in exile during the latter
part of William’s reign, on account of the then famous dispute of lay
investitures. But Anselm, adhering to the canons of a council held at
Rome, refused to consecrate the bishops named by the king, and also to do
him homage for the temporalities of his own see, which the king required
before he gave him possession.
Henry, afraid of detaching from himself, and attaching to his brother
Robert, the pope and so powerful a body as the bulk of the clergy,
with so popular and high spirited a priest at their head, was obliged
to propose an expedient, that he should send ambassadors to the pope,
to represent that these canons were contrary to the antient law and
customs of the nation, and to endeavour to obtain a dispensation for
not complying with the canons; and that, in the mean time, Anselm might
enter into the temporalities of his see. This proposal was accepted.
But, though, the king’s desiring to do that by dispensation, which he
had a right to do by law, was tacitly giving up his cause, the pope
knew his own strength, and Henry’s weakness too well, to grant this
favour. He insisted on the canons being executed, which produced another
quarrel between the king and archbishop. The archbishop, attended
by other bishops his adherents, went to Rome to complain. The king
sent new ambassadors, but all in vain. The pope proceeded to threaten
excommunication, which, in those days of superstition, would have
tumbled Henry from the throne, so he was obliged to submit, and come to
a composition. He renounced the nomination and investiture _per annulum
& baculum_, restored the free election of bishops and abbots to the
chapters and convents, which, as the pope was judge of the validity
of such elections, was, in effect, almost giving them to him; and, in
acknowledgment of his antient right of patronage, was allowed the custody
of the temporalities during the vacancy; was allowed to give the _congé
d’elire_, or license to proceed to election, without which they could
not elect, and was allowed to receive homage from the elect, upon the
restitution of the temporalities.
Thus the pope gratified the king with the shadow, and gained to himself
and the church the substance, and thus, at this time ended, that contest
in England, which had cost so many thousand lives abroad, between the
pope and emperors. Henry, however, retained a considerable influence in
the elections, for before he issued his _congé d’elire_, he generally
convened his nobles and prelates, and with them recommended a proper
person, who generally was chosen; and this the pope, for the present,
suffered to pass[344].
I have little else to observe touching the laws in this reign, save what
pertains to the _celibacy of the clergy_. The popes, aiming at detaching
the clergy entirely from secular interests, had made many canons against
their marrying, and all the eloquence of some centuries had been
employed in recommending celibacy. These canons, however, had not their
full effect in England; for very many of the secular clergy were still
married. Anselm, in a synod he assembled, enacted a canon against them,
commanding them to dismiss their wives, upon pain of suspension, and
excommunication, if they presumed to continue to officiate. Cardinal de
Crema was afterwards sent legate by the pope to England, where, in a
general assembly of the clergy, he re-enacted the canons against their
marriages, and presiding in a lofty throne, uttered a most furious
declamation against such a sinful practice, declaring it a horrid
abomination, that priests should rise from the arms of a strumpet, and
consecrate the body of Christ. And yet the historians assure us, that,
after consecrating the eucharist in that assembly, he was found that very
night in the stews of Southwark, in bed with a prostitute; which made
him so ashamed, that he stole privately out of England[345].