empire, they were obliged to establish a system of government which
might secure their conquests, as well against the revolt of their
numerous subjects who remained in the provinces, as from the inroads
of other tribes, who might be tempted to ravish from them their new
acquisitions. The great change of circumstances made them here depart
from those institutions which prevailed among them while they remained
in the forests of Germany; yet was it still natural for them to retain,
in their present settlement, as much of their ancient customs as was
compatible with their new situation.
The German governments, being more a confederacy of independent warriors
than a civil subjection, derived their principal force from many
inferior and voluntary associations which individuals formed under a
particular head or chieftain, and which it became the highest point
of honor to maintain with inviolable fidelity. The glory of the chief
consisted in the number, the bravery, and the zealous attachment of his
retainers; the duty of the retainers required that they should accompany
their chief in all wars and dangers, that they should fight and perish
by his side, and that they should esteem his renown or his favor a
sufficient recompense for all their services.[*] The prince himself was
nothing but a great chieftain, who was chosen from among the rest on
account of his superior valor or nobility; and who derived his power
from the voluntary association or attachment of the other chieftains.
[* Tacit. de Mor. Germ.]
When a tribe, governed by these ideas, and actuated by these principles,
subdued a large territory, they found that, though it was necessary to
keep themselves in a military posture, they could neither remain united
in a body, nor take up their quarters in several garrisons, and that
their manners and institutions debarred them from using these expedients
the obvious ones, which, in a like situation, would have been employed
by a more civilized nation. Their ignorance in the art of finances,
and perhaps the devastations inseparable from such violent conquests,
rendered it impracticable for them to levy taxes sufficient for the pay
of numerous armies; and their repugnance to subordination, with their
attachment to rural pleasures, made the life of the camp or garrison,
if perpetuated during peaceful times, extremely odious and disgustful to
them. They seized, therefore, such a portion of the conquered lands as
appeared necessary; they assigned a share for supporting the dignity
of their prince and government; they distributed other parts, under the
title of fiefs, to the chiefs; these made a new partition among their
retainers; the express condition of all these grants was, that they
might be resumed at pleasure, and that the possessor, so long as he
enjoyed them, should still remain in readiness to take the field for the
defence of the nation. And though the conquerors immediately separated,
in order to enjoy their new acquisitions, their martial disposition made
them readily fulfil the terms of their engagement: they assembled on
the first alarm; their habitual attachment to the chieftain made them
willingly submit to his command; and thus a regular military force
though concealed was always ready to defend, on any emergency, the
interest and honor of the community.
We are not to imagine, that all the conquered lands were seized by
the northern conquerors, or that the whole of the land thus seized was
subjected to those military services. This supposition is confuted by
the history of all the nations on the continent. Even the idea given us
of the German manners by the Roman historian, may convince us, that
that bold people would never have been content with so precarious a
subsistence, or have fought to procure establishments which were only
to continue during the good pleasure of their sovereign. Though the
northern chieftains accepted of lands which, being considered as a kind
of military pay, might be resumed at the will of the king or general,
they also took possession of estates which, being hereditary and
independent, enabled them to maintain their native liberty, and support,
without court favor, the honor of their rank and family.
But there is a great difference, in the consequences, between the
distribution of a pecuniary subsistence, and the assignment of lands
burdened with the condition of military service. The delivery of the
former, at the weekly, monthly, or annual terms of payment, still
recalls the idea of a voluntary gratuity from the prince, and reminds
the soldier of the precarious tenure by which he holds his commission.
But the attachment, naturally formed with a fixed portion of land,
gradually begets the idea of something like property, and makes the
possessor forget his dependent situation, and the condition which was
at first annexed to the grant. It seemed equitable, that one who had
cultivated and sowed a field, should reap the harvest: hence fiefs,
which were at first entirely precarious were soon made annual. A man
who had employed his money in building, planting, or other improvements,
expected to reap the fruits of his labor or expense: hence they were
next granted during a term of years. It would be thought hard to expel a
man from his possessions who had always done his duty, and performed the
conditions on which he originally received them: hence the chieftains,
in a subsequent period, thought themselves entitled to demand the
enjoyment of their feudal lands during life. It was found, that a man
would more willingly expose himself in battle, if assured that his
family should inherit his possessions, and should not be left by his
death in want and poverty; hence fiefs were made hereditary in families,
and descended, during one age to the son, then to the grandson, next to
the brothers, and afterwards to more distant relations.[*] The idea of
property stole in gradually upon that of military pay; and each century
made some sensible addition to the stability of fiefs and tenures.
[* Lib. Feud. lib. i. tit. i.]
In all these successive acquisitions, the chief was supported by his
vassals; who, having originally a strong connection with him, augmented
by the constant intercourse of good offices, and by the friendship
arising from vicinity and dependence, were inclined to follow their
leader against all his enemies, and voluntarily, in his private
quarrels, paid him the same obedience to which, by their tenure, they
were bound in foreign wars. While he daily advanced new pretensions to
secure the possession of his superior fief, they expected to find the
same advantage in acquiring stability to their subordinate ones;
and they zealously opposed the intrusion of a new lord, who would be
inclined, as he was fully entitled, to bestow the possession of their
lands on his own favorites and retainers. Thus the authority of the
sovereign gradually decayed; and each noble, fortified in his own
territory by the attachment of his vassals, became too powerful to be
expelled by an order from the throne; and he secured by law what he had
at first acquired by usurpation.
During this precarious state of the supreme power, a difference would
immediately be experienced between those portions of territory which
were subjected to the feudal tenures, and those which were possessed by
an allodial or free title. Though the latter possessions had at first
been esteemed much preferable, they were soon found, by the progressive
changes introduced into public and private law, to be of an inferior
condition to the former. The possessors of a feudal territory, united by
a regular subordination under one chief, and by the mutual attachments
of the vassals, had the same advantages over the proprietors of the
other, that a disciplined army enjoys over a dispersed multitude; and
were enabled to commit with impunity all injuries on their defenceless
neighbors Every one, therefore, hastened to seek that protection which
he found so necessary; and each allodial proprietor, resigning his
possessions into the hands of the king, or of some nobleman respected
for power or valor, received them back with the condition of feudal
services,[*] which, though a burden somewhat grievous, brought, him
ample compensation, by connecting him with the neighboring proprietors,
and placing him under the guardianship of a potent chieftain. The decay
of the political government thus necessarily occasioned the extension of
the feudal: the kingdoms of Europe were universally divided into
baronies, and these into inferior fiefs; and the attachment of vassals
to their chief, which was at first an essential part of the German
manners, was still supported by the same causes from which it at first
arose; the necessity of mutual protection, and the continued
intercourse, between the head and the members, of benefits and services.
[* Marculf. Form. 47, apud lindenbr. p. 1238,]
But there was another circumstance, which corroborated these feudal
dependencies, and tended to connect the vassals with their superior lord
by an indissoluble bond of union. The northern conquerors, as well
as the more early Greeks and Romans, embraced a policy, which is
unavoidable to all nations that have made slender advances in
refinement: they every where united the civil jurisdiction with the
military power. Law, in its commencement, was not an intricate science,
and was more governed by maxims of equity, which seem obvious to common
sense, than by numerous and subtile principles, applied to a variety
of cases by profound reasonings from analogy. An officer, though he
had passed his life in the field, was able to determine all legal
controversies which could occur within the district committed to his
charge; and his decisions were the most likely to meet with a prompt and
ready obedience, from men who respected his person, and were accustomed
to act under his command. The profit arising from punishments, Which
were then chiefly pecuniary, was another reason for his desiring to
retain the judicial power; and when his fief became hereditary, this
authority, which was essential to it, was also transmitted to his
posterity. The counts and other magistrates, whose power was merely
official, were tempted, in imitation of the feudal lords, whom they
resembled in so many particulars, to render their dignity perpetual
and hereditary; and in the decline of the regal power, they found no
difficulty in making good their pretentions. After this manner the vast
fabric of feudal subordination became quite solid and comprehensive; it
formed every where an essential part of the political constitution; and
the Norman and other barons, who followed the fortunes of William, were
so accustomed to it, that they could scarcely form an idea of any other
species of civil government.[*]
The Saxons who conquered England, as they exterminated the ancient
inhabitants, and thought themselves secured by the sea against new
invaders, found it less requisite to maintain themselves in a military
posture: the quantity of land which they annexed to offices seems to
have been of small value; and for that reason continued the longer in
its original situation, and was always possessed during pleasure by
those who were intrusted with the command. These conditions were too
precarious to satisfy the Norman barons, who enjoyed more independent
possessions and jurisdictions in their own country; and William was
obliged, in the new distribution of land, to copy the tenures which
were now become universal on the continent. England of a sudden became a
feudal kingdom,[**] and received all the advantages, and was exposed to
all the inconveniences, incident to that species of civil polity.
According to the principles of the feudal law, the king wa the supreme
lord of the landed property: all possessors, who enjoyed the fruits or
revenue of any part of it, held those privileges, either mediately or
immediately, of him; and their property was conceived to be, in some
degree, conditional.[***] The land was still apprehended to be a species
of benefice, which was the original conception of a feudal property; and
the vassal owed, in return for it, stated services to his baron, as the
baron himself did for his land to the crown. The vassal was obliged to
defend his baron in war; and the baron, at the head of his vassal, was
bound to fight in defence of the king and kingdom. But besides these
military services, which were casual, there were others imposed of a
civil nature, which were more constant and durable.
[* The ideas of the feudal government were so
rooted, that even lawyers in those ages could not form a
notion of any either constitution. Regnum (says Braeton,
lib. ii. cap. 34) quod ex comitatibus et baronibus dicitur
esse constitutum.]
[** Coke, Comm. on Lit. p. 1, 2, ad sect. 1.]
[*** Somner of Gavelk. p. 109, Smith de Rep. lib.
iii. cap. 10.]
The northern nations had no idea that any man trained up to honor and
inured to arms, was ever to be governed, without his own consent, by the
absolute will of another; or that the administration of justice was ever
to be exercised by the private opinion of any one magistrate, without
the concurrence of some other persons, whose interest might induce them
to check his arbitrary and iniquitous decisions. The king, therefore,
when he found it necessary to demand any service of his barons or chief
tenants, beyond what was due by their tenures, was obliged to assemble
them, in order to obtain their consent; and when it was necessary to
determine any controversy which might arise among the barons themselves,
the question must be discussed in their presence, and be decided
according to their opinion or advice. In these two circumstances of
consent and advice, consisted chiefly the civil services of the ancient
barons; and these implied all the considerable incidents of government.
In one view, the barons regarded this attendance as their principal
privilege; in another, as a grievous burden. That no momentous affairs
could be transacted without their consent and advice, was in general
esteemed the great security of their possessions and dignities; but as
they reaped no immediate profit from their attendance at court, and were
exposed to great inconvenience and charge by an absence from their
own estates, every one was glad to exempt himself liom each particular
exertion of this power; and was pleased both that the call for that duty
should seldom return upon him, and that others should undergo the burden
in his stead. The king, on the other hand, was usually anxious, for
several reasons, that the assembly of the barons should be full at every
stated or casual meeting: this attendance was the chief badge of their
subordination to his crown, and drew them from that independence which
they were apt to affect in their own castles and manors; and where the
meeting was thin or ill attended, its determinations had less authority,
and commanded not so ready an obedience from the whole community.
The case was the same with the barons in their courts, as with the king
in the supreme council of the nation. It was requisite to assemble the
vassals, in order to determine by their vote any question which regarded
the barony; and they sat along with the chief in all trials,
whether civil or criminal, which occurred within the limits of their
jurisdiction. They were; bound to pay suit and service at the court
of their baron; and as their tenure was military, and consequently
honorable, they were admitted into his society, and partook of his
friendship. Thus, a kingdom was considered only as a great barony, and
a barony as a small kingdom. The barons were peers to each other in the
national council, and in some degree companions to the king; the vassals
were peers to each other in the court of barony, and companions to their
baron.[*]
[* Du Cange, Gloss, in verb. Par. Cujac. Commun.
in Lib, Feud lib. I, tit i. p. 18, Spelm. Gloss, in verb.]
But though this resemblance so far took place, the vassals by the
natural course of things, universally, in the feudal constitutions, fell
into a greater subordination under the baron, than the baron himself
under his sovereign; and these governments had a necessary and
infallible tendency to augment the power of the nobles. The great chief,
residing in his country seat, which he was commonly allowed to fortify,
lost, in a great measure, his connection or acquaintance with the
prince, and added every day new force to his authority over the
vassals of the barony. They received from him education in all military
exercises; his hospitality invited them to live and enjoy society in his
hall; their leisure, which was great, made them perpetual retainers on
his person, and partakers of his country sports and amusements; they
had no means of gratifying their ambition but by making a figure in
his train; his favor and countenance was their greatest honor; his
displeasure exposed them to contempt and ignominy; and they felt every
moment the necessity of his protection, both in the controversies which
occurred with other vassals, and, what was more material, in the daily
inroads and injuries which were committed by the neighboring barons.
During the time of general war, the sovereign, who marched at the head
of his armies, and was the great protector of the state, always acquired
some accession to his authority, which he lost during the intervals
of peace and tranquillity; but the loose police incident to the feudal
constitutions, maintained a perpetual, though secret hostility, between
the several members of the state; and the vassals found no means of
securing themselves against the injuries to which they were continually
exposed, but by closely adhering to their chief, and falling into a
submissive dependence upon him.
If the feudal government was so little favorable to the true liberty
even of the military vassal, it was still more destructive of the
independence and security of the other members of the state, or what in
a proper sense we call the people. A great part of them were serfs,
and lived in a state of absolute slavery or villainage; the other
inhabitants of the country paid then rent in services, which were in a
great measure arbitrary; and they could expect no redress of injuries in
a court of barony from men who thought they had a right to oppress and
tyrannize over them: the towns were situated either within the demesnes
of the king, or the lands of the great barons, and were almost entirely
subjected to the absolute will of their master. The languishing state of
commerce kept the inhabitants poor and contemptible; and the political
institutions were calculated to render that poverty perpetual. The
barons and gentry, living in rustic plenty and hospitality, gave
no encouragement to the arts, and had no demand for any of the more
elaborate manufactures: every profession was held in contempt but
that of arms; and if any merchant or manufacturer rose by industry and
frugality to a degree of opulence, he found himself but the more exposed
to injuries, from the envy and avidity of the military nobles.
These concurring causes gave the feudal governments so strong a bias
towards aristocracy, that the royal authority was extremely eclipsed
in all the European states; and, instead of dreading the growth of
monarchical power, we might rather expect, that the community would
every where crumble into so many independent baronies, and lose the
political union by which they were cemented. In elective monarchies,
the event was commonly answerable to this expectation; and the barons,
gaining ground on every vacancy of the throne, raised themselves almost
to a state of sovereignty, and sacrificed to their power both the rights
of the crown and the liberties of the people. But hereditary monarchies
had a principle of authority which was not so easily subverted; and
there were several causes which still maintained a degree of influence
in the hands of the sovereign.
The greatest baron could never lose view entirely of those principles of
the feudal constitution which bound him, as, a vassal, to submission and
fealty towards his prince; because he was every moment obliged to have
recourse to those principles, in exacting fealty and submission from his
own vassals The lesser barons, finding that the annihilation of royal
authority left them exposed without protection to the insults and
injuries of more potent neighbors, naturally adhered to the crown, and
promoted the execution of general and equal laws. The people had still a
stronger interest to desire the grandeur of the sovereign; and the king,
being the legal magistrate, who suffered by every internal convulsion or
oppression, and who regarded the great nobles as his immediate rivals,
assumed the salutary office of general guardian or protector of the
commons. Besides the prerogatives with which the law invested him, his
large demesnes and numerous retainers rendered him, in one sense, the
greatest baron in his kingdom; and where he was possessed of personal
vigor and abilities, (for his situation required these advantages,) he
was commonly able to preserve his authority, and maintain his station as
head of the community, and the chief fountain of law and justice.
The first kings of the Norman race were favored by another circumstance,
which preserved them from the encroachments of their barons. They
were generals of a conquering army, which was obliged to continue in
a military posture, and to maintain great subordination under their
leader, in order to secure themselves from the revolt of the numerous
natives, whom they had bereaved of all their properties and privileges.
But though this circumstance supported the authority of William and his
immediate successors, and rendered them extremely absolute, it was lost
as soon as the Norman barons began to incorporate with the nation, to
acquire a security in their possessions, and to fix their influence over
their vassals, tenants, and slaves. And the immense fortunes which the
Conqueror had bestowed on his chief captains, served to support their
independence, and make them formidable to the sovereign.
He gave, for instance, to Hugh de Abrincis, his sister’s son, the whole
county of Chester, which he erected into a palatinate, and rendered by
his grant almost independent of the crown.[*] Robert, earl of Mortaigne,
had nine hundred and seventy-three manors and lordships: Allan, earl
of Brittany and Richmond, four hundred and forty-two: Odo, bishop of
Baieux, four hundred and thirty-nine:[**] Geoffrey, bishop of Coutance,
two hundred and eighty:[***] Walter Giffard, earl of Buckingham, one
hundred and seven.
[* Camd. in Chesh. Spel. Gloss, in verb. Comes
Palatinus.]
[** Brady’s Hist. p. 198, 200.]
[*** Order Vitalia.]
William, earl Warrenne, two hundred and ninety-eight, besides
twenty-eight towns or hamlets in Yorkshire: Todenei, eighty-one: Roger
Bigod, one hundred and twenty-three: Robert, earl of Eu, one hundred and
nineteen: Roger Mortimer, one hundred and thirty-two, besides several
hamlets: Robert de Stafford, one hundred and thirty: Walter de Eurus,
earl of Salisbury, forty-six Geoffrey de Mandeville, one hundred
and eighteen Richard de Clare, one hundred and seventy-one: Hugh de
Beauchamp, forty-seven: Baldwin de Rivers, one hundred and sixty-four:
Henry de Ferrers, two hundred and twenty? two: William de Percy, one
hundred and nineteen:[*] Norman d’Arcy, thirty-three.[**] Sir Henry
Spelman computea that, in the large county of Norfolk, there were not,
in the Conqueror’s time, above sixty-six proprietors of land.[***] Men
possessed of such princely revenues and jurisdictions could not long
be retained in the rank of subjects. The great Earl Warrenne, in a
subsequent reign, when he was questioned concerning his right to the
lands which he possessed, drew his sword, which he produced as his
title; adding, that William the bastard did not conquer the kingdom
himself; but that the barons, and his ancestor among me rest, were joint
adventurers in the enterprise.[****]
[* Dugdale’s Baronage, from Domesday-book, vol. i.
p. 60, 74; iii. 112, 132, 136, 138, 156, 174, 200, 207, 223,
254, 257, 269.]
[** Ibid. p. 319. It is remarkable that this
family of D’Arcy seema to be the only male descendants of
any of the Conqueror’s barons now remaining among the peers.
Lord Holdernesse is the heir of that family.]
[*** Spel. Gloss, hi verb. Domesday.]
[**** Dug. Bar. vol. i. p. 79. Ibid. Origines
Juridicales p. 13,]
[***** Spel. Glos. it verb. Baro.] in parliament
before the king had made him restitution of his
temporalities; and during the vacancy of a see, the guardian
of the spiritualities was summoned to attend along with the
bishops.
The supreme legislative power of England was lodged in the king and
great council, or what was afterwards called the parliament. It is not
doubted but the archbishops, bishops, and most considerable abbots were
constituent members of this council. They sat by a double title: by
prescription, as having always possessed that privilege, through the
whole Saxon period, from the first establishment of Christianity; and
by their right of baronage, as holding of the king in capite by
military service. These two titles of the prelates were never accurately
distinguished. When the usurpations of the church had risen to such a
height, as to make the bishops affect a separate dominion, and regard
their seat in parliament as a degradation of their episcopal dignity,
the king insisted that they were barons, and, on that account, obliged,
by the general principles of the feudal law, to attend on him in his
great councils. Yet there still remained some practices, which supposed
their title to be derived merely from ancient possession.
The barons were another constituent part of the great council of the
nation These held immediately of the crown by a military tenure: they
were the most honorable members of the state, and had a right to be
consulted in all public deliberations: they were the immediate vassals
of the crown, and owed as a service their attendance in the court of
their supreme lord. A resolution taken without their consent was likely
to be but ill executed: and no determination of any cause or controversy
among them had any validity, where the vote and advice of the body did
not concur. The dignity of earl or count was official and territorial,
as well as hereditary; and as ali the earls were also barons, they
were considered as military vassals of the crown, were admitted in that
capacity into the general council, and formed the most honorable and
powerful branch of it.
But there was another class of the immediate military tenants of the
crown, no less, or probably more numerous than the barons, the tenants
in capite by knights’ service and these, however inferior in power or
property, held by a tenure which was equally honorable with that of the
others. A barony was commonly composed of several knightsr fees:
and though the number seems not to have been exactly defined, seldom
consisted of less than fifty hides of land:[*] but where a man held of
the king only one or two knight’s fees, he was still an immediate vassal
of the crown, and as such had a title to have a seat in the general
councils. But as this attendance was usually esteemed a burden, and
one too great for a man of slender fortune to bear constantly, it is
probable that, though he had a title, if he pleased, to be admitted,
he was not obliged by any penalty, like the barons, to pay a regular
attendance.
[* Four hides made one knight’s fee: the relief of
a barony was twelve times greater than that of a knight’s
fee; whence we may conjecture its usual value. Spel. Gloss,
in verb. Feodum. There were two hundred and forty-three
thousand six hundred hides in England, and sixty thousand
two hundred and fifteen knights’ fees; whence it is evident
that there were a little more than four hides in each
knight’s fee.]
All the immediate military tenants of the crown amounted not fully to
seven hundred, when Domesday-book was framed; and as the membeirs were
well pleased, on any pretext, to excuse themselves from attendance, the
assembly was never likely to become too numerous for the despatch of
public business.
So far the nature of a general council or ancient parliament is
determined without any doubt or controversy, The only question seems to
be with regard to the commons, or the representatives of counties and
boroughs; whether they were also, in more early times, constituent parts
of parliament. This question was once disputed in England with great
acrimony; but such is the force of time and evidence, that they can
sometimes prevail even over faction; and the question seems, by general
consent, and even by their own, to be at last determined against the
ruling party. It is agreed, that the commons were no part of the great
council till some ages after the conquest; and that the military tenants
alone of the crown composed that supreme and legislative assembly.
The vassals of a baron were by their tenure immediately dependent on
him, owed attendance at his court, and paid all their duty to the king,
through that dependence which their lord was obliged by his tenure to
acknowledge to his sovereign and superior. Their land, comprehended in
the barony, was represented in parliament by the baron himself, who was
supposed, according to the fictions of the feudal law, to possess the
direct property of it; and it would have been deemed incongruous to give
it any other representation. They stood m the same capacity to him, that
he and the other barons did to the king: the former were peers of the
barony; the latter were peers of the realm: the vassals possessed a
subordinate rank within their district: the baron enjoyed a superior
dignity in the great assembly: they were in some degree his companions
at home; he the king’s companion at court: and nothing can be
more evidently repugnant to all feudal ideas, and to that gradual
subordination which was essential to those ancient institutions, than to
imagine that the king would apply either for the advice or consent of
men who were of a rank so much inferior, and whose duty was immediately
paid to the mesne lord that was interposed between them and the
throne.[*]
[* Spel. Gloss, in verb. Baro.]
If it be unreasonable to think that the vassals of a barony, though
their tenure was military, and noble, and honorable, were ever summoned
to give their opinion in national councils, much less can it be supposed
that the tradesmen or inhabitants of boroughs, whose condition was so
much inferior, would be admitted to that privilege. It appears from
Domesday, that the greatest boroughs were, at the time of the conquest,
scarcely more than country villages; and that the inhabitants lived
in entire dependence on the king or great lords, and were of a
station little better than servile.[*] They were not then so much as
incorporated; they formed no community; were not regarded as a body
politic; and being really nothing but a number of low, dependent
tradesmen, living, without any particular civil tie, in neighborhood
together, they were incapable of being represented in the states of the
kingdom. Even in France, a country which made more early advances in
arts and civility than England, the first corporation is sixty years
posterior to the conquest under the duke of Normandy; and the erecting
of these communities was an invention of Lewis the Gross, in order
to free the people from slavery under the lords, and to give
them protection by means of certain privileges and a separate
jurisdiction.[**] An ancient French writer calls them a new and wicked
device, to procure liberty to slaves, and encourage them in shaking off
the dominion of their masters.[***] The famous charter, as it is called,
of the Conqueror to the city of London, though granted at a time when he
assumed the appearance of gentleness and lenity, is nothing but a letter
of protection, and a declaration that the citizens should not be treated
as slaves.[****] By the English feudal law, the superior lord
was prohibited from marrying his female ward to a burgess or a
villain;[*****] so near were these two ranks esteemed to each other,
and so much inferior to the nobility and gentry. Besides possessing the
advantages of birth, riches, civil powers and privileges, the nobles
and gentlemen alone were armed a circumstance which gave them a mighty
superiority, in an age when nothing but the military profession
was honorable, and when the loose execution of laws gave so much
encouragement to open violence, and rendered it so decisive in all
disputes and controversies.[*****]
[* “Liber homo” anciently signified a gentleman:
for scarce any one beside was entirely free. Spel. Gloss, in
verbo.]
[** Du Gauge’s Gloss, in verb. Commune,
Communitas.]
[*** Guibertus, de vita sua, lib. iii. cap. 7.]
[**** Stat. of Merton, 1235, esp. 6.]
[***** Holingshed. vol. iii. p. 15.]
[****** Madox, Baron. Angl. p. 19.]
The great similarity among the feudal governments of Europe is well
known to every man that has any acquaintance with ancient history: and
the antiquaries of all foreign countries, where the question was never
embarrassed by party disputes, have allowed that the commons came very
late to be admitted to a share in the legislative power. In Normandy
particularly, whose constitution was most likely to be William’s
model in raising his new fabric of English government, the states were
entirely composed of the clergy and nobility; and the first incorporated
boroughs or communities of that duchy were Rouen and Falaise, which
enjoyed their privileges by a grant of Philip Augustus in the year
1207.[**] All the ancient English historians, when they mention the
great council of the nation, call it an assembly of the baronage,
nobility, or great men; and none of their expressions, though several
hundred passages might be produced, can, without the utmost violence,
be tortured to a meaning which will admit the commons to be constituent
members of that body.[***]
[** Norman, du Chesnil, p. 1066. Du Cange, Gloss,
in verb. Commune.]
[*** Sometimes the historians mention the people,
“populus,” as a part of the parliament; but they always mean
the laity, in opposition to the clergy. Sometimes the word
“communitas” is found; but it always means “communitas
baronagii.” These points are clearly proved by Dr. Brady.
There is also mention sometimes made of a crowd or multitude
that thronged into the great council on particular
interesting occasions; but as deputies from boroughs are
never once spoken of, the proof that they had not then any
existence becomes the more certain and undeniable. These
never could make a crowd, as they must have had a regular
place assigned them if they had made a regular part of the
legislative body. There were only one hundred and thirty
boroughs who received writs of summons from Edward I. It is
expressly said in Gesta Reg. Steph. p. 932, that it was
usual for the populace, “vulgus,” to crowd into the great
councils; where they were plainly mere spectators, and could
only gratify their curiosity.]
If in the long period of two hundred years, which elapsed between
the conquest and the latter end of Henry III., and which abounded
in factions, revolutions, and convulsions of all kinds, the house of
commons never performed one single legislative act so considerable as
to be once mentioned by any of the numerous historians of that age, they
must have been totally insignificant: and in that case, what reason can
be assigned for their ever being assembled? Can it be supposed that men
of so little weight or importance possessed a negative voice against the
king and the barons? Every page of the subsequent histories discovers
their existence; though these histories are not written with greater
accuracy than the preceding ones, and indeed scarcely equal them in that
particular. The Magna Charta of King John provides that no scutage or
aid should be imposed, either on the land or towns, but by consent
of the great council; and for more security it enumerates the persons
entitled to a seat in that assembly, the prelates and immediate tenants
of the crown, without any mention of the commons; an authority so full,
certain, and explicit, that nothing but the zeal of party could ever
have procured credit to any contrary hypothesis.
It was probably the example of the French barons, which first imboldened
the English to require greater independence from their sovereign: it
is also probable that the boroughs and corporations of England were
established in imitation of those of France. It may, therefore, be
proposed as no unlikely conjecture, that both the chief privileges of
the peers in England and the liberty of the commons were originally the
growth of that foreign country.
In ancient times, men were little solicitous to obtain a place in
the legislative assemblies; and rather regarded their attendance as
a burden, which was not compensated by any return of profit or
honor, proportionate to the trouble and expense. The only reason for
instituting those public councils was, on the part of the subject, that
they desired some security from the attempts of arbitrary power; and on
the part of the sovereign, that he despaired of governing men of such
independent spirits without their own consent and concurrence. But the
commons, or the inhabitants of boroughs, had not as yet reached such a
degree of consideration, as to desire security against their prince, or
to imagine that, even if they were assembled in a representative body,
they had power or rank sufficient to enforce it. The only protection
which they aspired to, was against the immediate violence and injustice
of their fellow-citizens; and this advantage each of them looked for
from the courts of justice, or from the authority of some great lord, to
whom, by law or his own choice, he was attached. On the other hand, the
sovereign was sufficiently assured of obedience in the whole community
if he procured the concurrence of the nobles; nor had he reason to
apprehend that any order of the state could resist his and their united
authority. The military sub-vassals could entertain no idea of opposing
both their prince and their superiors: the burgesses and tradesmen
could much legs aspire to such a thought: and thus, even if history were
silent on the head, we have reason to conclude, from the known situation
of society during those ages, that the commons were never admitted as
members of the legislative body.
The executive power of the Anglo-Norman government was lodged in the
king. Besides the stated meetings of the national council at the
three great festivals of Christmas, Easter, and Whitsuntide,[*] he was
accustomed, on any sudden exigence to summon them together. He could at
his pleasure command the attendance of his barons and their vassals,
in which consisted the military force of the kingdom; and could employ
titem, during forty days, either in resisting a foreign enemy, or
reducing his rebellious subjects. And what was of great importance, the
whole judicial power was ultimately in his bands, and was exercised by
officers and ministers of his appointment.
The general plan of the Anglo-Norman government was, that the court of
barony was appointed to decide such controversies as arose between the
several vassals or subjects of the same barony: the hundred court and
county court, which were still continued as during the Saxon times,[**]
to judge between the subjects of different baronies;[***] and the
curia regis, or king’s court, to give sentence among the barons
themselves.[****]
[* Dugd. Orig. Jurid, p. 1.5 Spel. Gloss, in verbo
Parliamentum.]
[** Ang. Sacra, vol. i., p. 334, etc. Dugd. Orig.
Jurid., p. 27, 29. Madox, Hist, of the Exch., p. 75, 76.
Spel. Gloss, in verbo Hundred:]
[*** None of the feudal governments in Europe had
such institutions as the county courts, which the great
authority of the Conqueror still retained from the Saxon
customs. All the freeholders of the county, even the
greatest barons, were obliged to attend the sheriff in these
courts, and to assist them in the administration of justice.
By this means they received frequent and sensible
admonitions of their dependence on the king or supreme
magistrate: they formed a kind of community with their
fellow-barons and freeholders; they were often drawn from
their individual and independent state, peculiar to the
feudal system, and were made members of a political body:
and perhaps this institution of county courts in England has
had greater effects on the government than has yet been
distinctly pointed out by historians, or traced by
antiquaries. The barons were never able to free themselves
from this attendance on the sheriffs and itinerant justices
till the reign of Henry III.]
[**** Brady, Tref. p. 143.]
Circumstances which, being derived from a very extensive authority
assumed by the conqueror, contributed to increase the royal prerogative;
and, as long as the state was not disturbed by arms, reduced every order
of the community to some degree of dependence and subordination.
The king himself often sat in his court, which always attended his
person:[**] he there heard causes and pronounced judgment;[***] and
though he was assisted by the advice of the other members, it is not to
be imagined that a decision could easily be obtained, contrary to his
inclination or opinion. In his absence the chief justiciary presided,
who was the first magistrate in the state, and a kind of viceroy, on
whom depended all the civil affairs of the kingdom.[****] The other
chief officers of the crown, the constable, mareschal, seneschal
chamberlain, treasurer, and chancellor,[*****] were members, together
with such feudal barons as thought proper to attend, and the barons of
the exchequer, who at first were also feudal barons appointed by the
king.[******] This court, which was sometimes called the king’s court,
sometimes the court of exchequer, judged in all causes, civil and
criminal, and comprehended the whole business which is now shared out
among four courts the chancery, the king’s bench, the common pleas, and
the exchequer.[*******]
Such an accumulation of powers was itself a great source of authority,
and rendered the jurisdiction of the court formidable to all the
subjects; but the turn which judicial trials took soon after the
conquest, served still more to increase its authority, and to augment
the royal prerogatives. William, among the other violent changes
which he attempted and effected, had introduced the Norman law into
England,[********] had ordered all the pleadings to be in that tongue,
and had interwoven with the English jurisprudence all the maxims and
principles which the Normans, more advanced in cultivation and naturally
litigious, were accustomed to observe in the distribution of justice.
[** Madox, Hist. of the Exch. p. 103.]
[*** Bracton, lib. iii. cap. 9, sect. 1; cap. 10,
sect. 1.]
[**** Spel. Gloss, in verbo Justiciarii.]
[***** Madox, Hist. Exch. p. 27, 29, 83, 38, 41,
54. The Normans introduced the practice of sealing charters;
and the chancellor’s office was to keep the great seal.
Ingulph. Dugd. p. 33, 34.]
[****** Madox, Hist, of the Exch. p. 134, 135.
Gerv. Dorob. p, 1387,]
[******* Madox. Hist. of the Exch. p. 56, 70.]
[******** Dial, de Scac. p. 30, apud Madox, Hist,
of the Exch.]
Law now became a science, which at first fell entirely into the hands of
the Normans; and which, even after it was communicated to the English,
required so much study and application, that the laity in those ignorant
ages were incapable of attaining it, and it was a mystery almost solely
confined to the clergy, and chiefly to the monks[*] The great officers
of the crown, and the feudal barons, who were military men, found
themselves unfit to penetrate into those obscurities; and though they
were entitled to a seat in the supreme judicature, the business of the
court was wholly managed by the chief justiciary and the law barons, who
were men appointed by the king, and entirely at his disposal.[**] This
natural course of things was forwarded by the multiplicity of business
which flowed into that court, and which daily augmented by the appeals
from all the subordinate judicatures of the kingdom.
In the Saxon times, no appeal was received in the king’s court, except
upon the denial or delay of justice by the inferior courts; and the same
practice was still observed in most of the feudal kingdoms of Europe.
But the great power of the Conqueror established at first in England an
authority which the monarchs in France were not able to attain till the
reign of St. Lewis, who lived near two centuries after: he empowered his
court to receive appeals both from the courts of barony and the
county courts, and by that means brought the administration of justice
ultimately into the hands of the sovereign.[***] And, lest the expense
or trouble of a journey to court should discourage suitors, and make
them acquiesce in the decision of the inferior judicatures, itinerant
judges were afterwards established, who made their circuits throughout
the kingdom, and tried all causes that were brought before them.[****]
[* Malms, lib. iv. p. 123.]
[** Dugd. Orig. Jurid. p. 25.]
[*** Madox, Hist. of the Exch, p.65. Glanv. lib.
xii. cap. 1, 7. LL. Hen. I. sect. 31, apud Wilkins, p. 248.
Fitz-Stephens, p. 36. Coke’s Comment, on the Statute of
Mulbridge, cap. 20.]
[**** Madox, Hist, of the Exch. p. 83, 84, 100.
Gerv. Dorob. p. 1410 What made the Anglo-Norman barons more
readily submit to appeals from their court to the king’s
court of exchequer, was their being accustomed to like
appeals in Normandy to the ducal court of exchequer. See
Gilbert’s History of the Exchequer, p. 1, 2; though the
author thinks it doubtful whether the Norman court was not
rather copied from English. (p. 6.)]
By this expedient the courts of barony were kept in awe: and if they
still preserved some influence, it was only from the apprehensions which
the vassals might entertain of disobliging their superior, by appealing
from his jurisdiction. But tha county courts were much discredited; and
as the freeholders were found ignorant of the intricate principles and
forms of the new law, the lawyers gradually brought all business
before the king’s judges, and abandoned the ancient simple and popular
judicature. After this manner the formalities of justice, which, though
they appear tedious and cumbersome, are found requisite to the support
of liberty in all monarchical governments, proved at first, by a
combination of causes, very advantageous to royal authority in England.
The power of the Norman kings was also much supported by a great
revenue; and by a revenue that was fixed, perpetual, and independent
of the subject. The people, without betaking themselves to arms, had no
check upon the king, and no regular security for the due administration
of justice. In those days of violence, many instances of oppression
passed unheeded; and soon after were openly pleaded as precedents, which
it was unlawful to dispute or control. Princes and ministers were
too ignorant to be themselves sensible of the advantages attending
an equitable administration; and there was no established council or
assembly which could protect the people, and, by withdrawing supplies,
regularly and peaceably admonish the king of his duty, and insure the
execution of the laws.
The first branch of the king’s stated revenue was the royal demesnes, or
crown lands, which were very extensive, and comprehended, beside a
great number of manors, most of the chief cities of the kingdom. It was
established by law, that the king could alienate no part of his demesne,
and that he himself, or his successor, could at any time resume such
donations:[*] but this law was never regularly observed; which happily
rendered, in time, the crown somewhat more dependent.
[* [*Feta], lib. i. cap. 8, sect. 17; lib. iii.
cap. 6, sect. 3. Bracton, lib ii. cap. 5.]
The rent of the crown-lands, considered merely as so much riches, was a
source of power: the influence of the king over his tenants and the
inhabitants of his towns increased this power: but the other numerous
branches of his revenue, besides supplying his treasury, gave, by their
very nature, a great latitude to arbitrary authority, and were a support
of the prerogative; as will appear from an enumeration of them.
The king was never content with the stated rents, but levied heavy
talliages at pleasure on the inhabitants both of town and, country who
lived within his demesne. All bargains of sale, in order to prevent
theft, being prohibited, except in boroughs and public markets,[*] he
pretended to exact tolls on all goods whist were there sold.[**] He
seized two hogsheads, one before and one behind the mast, from every
vessel that imported wine. All goods paid to his customs a proportional
part of their value:[***] passage over bridges and on rivers was loaded
with tolls at pleasure:[****] and though the boroughs by degrees bought
the liberty of farming these impositions, yet the revenue profited
by these bargains, new sums were often exacted for the renewal and
confirmation of their Charters,[*****] and the people were thus held in
perpetual dependence.
Such was the situation of the inhabitants within the royal demesnes. But
the possessors of land, or the military tenants, though they were better
protected, both by law and by the great privilege of carrying arms,
were, from the nature of their tenures, much exposed to the inroads of
power, and possessed not what we should esteem in our age a very durable
security. The Conqueror ordained that the barons should be obliged to
pay nothing beyond their stated services,[******] except a reasonable
aid to ransom his person if he were taken in war, to make his eldest
son a knight, and to marry his eldest daughter. What should on these
occasions be deemed a reasonable aid, was not determined; and the
demands of the crown were so far discretionary.
The king could require in war the personal attendance of his vassals,
that is, of almost all the landed proprietors; and if they declined the
service, they were obliged to pay him a composition in money, which
was called a scutage. The sum was, during some reigns, precarious and
uncertain; it was sometimes levied without allowing the vassal the
liberty of personal service;[*******] and it was a usual artifice of the
king’s to pretend an expedition, that he might be entitled to levy the
scutage from his military tenants.
[* LL. Will. i. cap. 61.]
[** Madox, p. 530.]
[*** Madox, p. 529. This author says a fifteenth.
But it is not easy to reconcile this account to other
authorities.]
[**** Madox, p. 529.]
[***** Madox, Hist. of the Exch. p. 275, 276, 277,
etc.]
[****** LL. Will. Conq. sect. 55.]
[******* Gervase de Tilbury, p. 25.]
Danegelt was another species of land-tax levied by the early Norman
kings, arbitrarily, and contrary to the laws of the Conqueror.[*]
Moneyage was also a general land-tax of the same nature, levied by the
two first Norman kings, and abolished by the charter of Henry I.[**] It
was a shilling paid every three years by each hearth, to induce the king
not to use his prerogative in debasing the coin. Indeed, it appears from
that charter, that though the Conqueror had granted his military tenants
an immunity from all taxes and talliages, he and his son William had
never thought themselves bound to observe that rule, but had levied
impositions at pleasure on all the landed estates of the kingdom. The
utmost that Henry grants is, that the land cultivated by the military
tenant himself shall not be so burdened; but he reserves the power of
taxing the farmers: and as it is known that Henry’s charter was never
observed in any one article, we may be assured that this prince and his
successors retracted even this small indulgence, and levied arbitrary
impositions on all the lands of all their subjects. These taxes were
sometimes very heavy; since Malmsbury tells us that, in the reign of
William Rufus, the farmers, on account of them, abandoned tillage, and a
famine ensued.[***]
[* Madox, Hist, of the Exch. p. 475.]
[** M. Paris, p. 38.]
[*** So also Chron. Abb. St. Petri de Burgo, p.
55. Knyghton, p. 2366.]
The escheats were a great branch both of power and of revenue,
especially during the first reigns after the conquest. In default of
posterity from the first baron, his land reverted to the crown, and
continually augmented the king’s possessions. The prince had indeed by
law a power of alienating these escheats; but by this means he had an
opportunity of establishing the fortunes of his friends and servants,
and thereby enlarging his authority. Sometimes he retained them in his
own hands; and they were gradually confounded with the royal demesnes,
and became difficult to be distinguished from them. This confusion is
probably the reason why the king acquired the right of alienating his
demesnes.
But besides escheats from default of heirs, those which ensued from
crimes or breach of duty towards the superior lord were frequent in
ancient times. If the vassal, being thrice summoned to attend his
superior’s court, and do fealty, neglected or refused obedience, he
forfeited all title to his land.[*] If he denied his tenure, or refused
his service, he was exposed to the same penalty.[**] If he sold his
estate without license from his lord,[***] or if he sold it upon any
other tenure or title than that by which he himself held it,[****]
he lost all right to it. The adhering to his lord’s enemies,[*****]
deserting him in war,[******] betraying his secrets,[*******] debauching
his wife or his near relations,[********] or even using indecent
freedoms with them,[*********] might be punished by forfeiture. The
higher crimes, rapes, robbery, murder, arson, etc., were called felony;
and being interpreted want of fidelity to his lord, made him lose his
fief.[**********] Even where the felon was vassal to a baron, though his
immediate lord enjoyed the forfeiture, the king might retain possession
of his estate during a twelvemonth, and had the right of spoiling
and destroying it, unless the baron paid him a reasonable
composition.[***********] We have not here enumerated all the species
of felonies, or of crimes by which forfeiture was incurred: we have said
enough to prove that the possession of feudal property was anciently
somewhat precarious, and that the primary idea was never lost, of its
being a kind of fee or benefice.
[* Hottom. de Feud. Disp. cap. 38, col. 886.]
[** Lib. Feud. lib. iii. tit. 1; lib. iv. tit. 21,
39.]
[*** Lib. Feud. lib. i. tit. 21.]
[**** Lib. Feud. lib. iv. tit. 44.]
[***** Lib. Feud. lib. iii. tit. 1.]
[****** Lib. Feud. lib. iv. tit. 14, 21]
[******* Lib. Feud. lib. iv. tit. 14.]
[******** Lib. Feud. lib. i. tit. 14, 21.]
[********* Lib. Feud. lib. i. tit. 1.]
[********** Spel. Gloss, in verbo Felonia]
[*********** Spel. Glos. Glanville, lib. vii. cap.
17.]
When a baron died, the king immediately took possession of the estate;
and the heir, before he recovered his right, was obliged to make
application to the crown, and desire that he might be admitted to do
homage for his land, and pay a composition to the king. This composition
was not at first fixed by law, at least by practice: the king was often
exorbitant in his demands, and kept possession of the land till they
were complied with.
If the heir were a minor, the king retained the whole profit of the
estate till his majority; and might grant what sum he thought proper for
the education and maintenance of the young baron. This practice was also
founded on the notion that a fief was a benefice, and that, while the
heir could not perform his military services, the revenue devolved to
the superior, who employed another in his stead. It is obvious that a
great proportion of the landed property must, by means of this device,
be continually in the hands of the prince, and that all the noble
familius were thereby held in perpetual dependence. When the king
granted the wardship of a rich heir to any one, he had the opportunity
of enriching a favorite or minister: if he sold it, he thereby levied
a considerable sum of money. Simon de Mountfort paid Henry III. ten
thousand marks, an immense sum in those days, for the wardship of
Gilbert de Umfreville.[*] Geoffrey de Mandeville paid to the same prince
the sum of twenty thousand marks, that he might marry Isabel, countess
of Glocester, and possess all her lands and knights’ fees. This sum
would be equivalent to three hundred thousand, perhaps four hundred
thousand pounds in our time.[**]
If the heir were a female, the king was entitled to offer her any
husband of her rank he thought proper; and if she refused him, she
forfeited her land. Even a male heir could not marry without the royal
consent; and it was usual for men to pay large sums for the liberty of
making their own choice in marriage.[**] No man could dispose of his
land, either by sale or will, without the consent of his superior. The
possessor was never considered as full proprietor; he was still a kind
of beneficiary; and could not oblige his superior to accept of any
vassal that was not agreeable to him.
Fines, amerciaments, and oblatas, as they were called, were another
considerable branch of the royal power and revenue. The ancient records
of the exchequer, which are still preserved, give surprising accounts of
the numerous fines anc amerciaments levied in those days,[****] and of
the strange inventions fallen upon to exact money from the subject.
[* Madox, Hist. of the Exch. p. 223.]
[** Madox, Hist. of the Exch. p. 322.]
[*** Madox, Hist. of the Exch. p. 320.]
[**** Madox, Hist. of the Exch. p. 272.]
It appears that the ancient kings of England put themselves entirely on
the footing of the barbarous Eastern princes, whom no man must approach
without a present, who sell all their good offices, and who intrude
themselves into every business, that they may have a pretence for
extorting money. Even justice was avowedly bought and sold; the king’s
court itself, though the supreme judicature of the kingdom, was open
to none that brought not presents to the king; the bribes given for the
expedition, delay,[*] suspension, and, doubtless, for the perversion of
justice, were entered in the public registers of the royal revenue, and
remain as monuments of the perpetual iniquity and tyranny of the times.
The barons of the exchequer, for instance, the first nobility of the
kingdom, were not ashamed to insert, as an article in their records,
that the county of Norfolk paid a sum that they might be fairly dealt
with;[**] the borough of Yarmouth, that the king’s charters, which they
have for their liberties, might not be violated;[***] Richard, son
of Gilbert, for the king’s helping him to recover his debt from the
Jews;[****] Serlo, son of Terlavaston, that he might be permitted to
make his defence, in case he were accused of a certain homicide;[*****]
Waiter de Burton, for free law, if accused of wounding another;[******]
Robert de Essart, for having an Liquest to find whether Roger the
butcher, and Wace and Humphrey, accused him of robbery and theft out
of envy and ill will, or not;[*******] William Buhurst, for having an
inquest to find whether he were accused of the death of one Goodwin
out of ill will, or for just cause.[********] I have selected these few
instances from a great number of a like kind, which Madox had selected
from a still greater number, preserved in the ancient rolls of the
exchequer.[*********]
Sometimes the party litigant offered the king a certain portion, a half,
a third, a fourth, payable out of the debts which he, as the executor
of justice, should assist him in recovering.[**********] Theophania de
Westland agreed to pay the half of two hundred and twelve marks, that
she might recover that sum against James de Fughleston;[*] Solomon the
Jew engaged to pay one mark out of every seven that he should recover
against Hugh dè la Hose;[************] Nicholas Morrel promised to pay
sixty pounds, that the earl of Flanders might be distrained to pay him
three hundred and forty-three pounds, which the earl had taken from
him; and these sixty pounds were to be paid out of the first money that
Nicholas should recover from the earl.[*************]
[* Madox, Hist. of the Exch. p. 274, 309.]
[** Madox, Hist. of the Exch. p. 295]
[*** Madox, Hist. of the Exch. p. 295.]
[**** Madox, Hist. of the Exch. p. 296. He paid
two hundred marks, a great sum in those days.]
[***** Madox, Hist. of the Exch. p. 296.]
[****** Madox, Hist. of the Exch. p. 296.]
[******* Madox, Hist. of the Exch. p 298.]
[******** Madox, Hist. of the Exch. p. 302.]
[********* Madox, Hist. of the Exch. chap. xii.]
[********** Madox, Hist. of the Exch. p. 311.]
[*********** Madox, Hist. of the Exch. p. 311.]
[************ Madox, Hist. of the Exch. p. 79,
312.]
[************* Madox, Hist. of the Exch. p. 312.]
As the king assumed the entire power over trade, he was to be paid for a
permission to exercise commerce or industry of any kind.[**] Hugh Oisel
paid four hundred marks for liberty to trade in England:[***] Nigel de
Havene gave fifty marks for the partnership in merchandise which he
had with Gervase de Hanton:[****] the men of Worcester paid one hundred
shillings, that they might have the liberty of selling and buying
dyed cloth, as formerly;[*****] several other towns paid for a like
liberty.[******] The commerce indeed of the kingdom was so much under
the control of the king, that he erected guilds, corporations, and
monopolies wherever he pleased; and levied sums for these exclusive
privileges.[*******]
There were no profits so small as to be below the king’s attention.
Henry, son of Arthur, gave ten dogs, to have a recognition against
the countess of Copland for one knight’s fee.[********] Roger, son of
Nicholas, gave twenty lampreys and twenty shads for an inquest to find
whether Gilbert, son of Alured, gave to Roger two hundred muttons to
obtain his confirmation for certain lands, or whether Roger took
them from him by violence;[*********] Geoffrey Fitz-Pierre, the chief
justiciary, gave two good Norway hawks, that Walter le Madine might
have leave to export a hundred weight of cheese out ot the king’s
dominions.[**********]
It is really amusing to remark the strange business in which the king
sometimes interfered, and never without a present; the wife of Hugh
de Nevile gave the king two hundred hens, that she might lie with her
husband one night;[***********] and she brought with her two sureties,
who answered each for a hundred hens.
[** Madox, Hist. of the Exch. p. 323.]
[*** Madox, Hist. of the Exch. p. 323.]
[**** Madox, Hist. of the Exch. p. 323.]
[***** Madox, Hist. of the Exch. p. 324.]
[****** Madox, Hist. of the Exch. p. 324.]
[******* Madox, Hist. of the Exch. p. 232, 233,
etc.]
[******** Madox, Hist. of the Exch. p. 298.]
[********* Madox, Hist. of the Exch. p. 305.]
[*0: Madox, Hist. of the Exch. p. 325.]
[*1: Madox, Hist. of the Exch. p. 326 ]
[*2: Madox, Hist. of the Exch. p 326]
It is probable that her husband was a prisoner, which debarred her from
having access to him. The abbot of Rucford paid ten marks for leave
to erect houses and place men upon his land near Welhang, in order to
secure his wood there from being stolen; Hugh, archdeacon of Wells, gave
one tun of wine for leave to carry six hundred summs of corn whither he
would; Peter de Perariis gave twenty marks for leave to salt fishes as
Peter Chevalier used to do.
It was usual to pay high fines, in order to gain the king’s good will
or mitigate his anger. In the reign of Henry II., Gilbert, the son of
Fergus, fines in nine hundred and nineteen pounds nine shillings, to
obtain that prince’s favor; William de Chataignes, a thousand marks,
that he would remit his displeasure. In the reign of Henry III., the
city of London fines in no less a sum than twenty thousand pounds on the
same account.
The king’s protection and good offices of every kind were bought and
sold. Robert Grislet paid twenty marks of silver, that the king would
help him against the earl of Mortaigne in a certain plea: Robert de
Cundet gave thirty marks of silver, that the king would bring him to an
accord with the bishop of Lincoln; Ralph de Bréckham gave a hawk, that
the king would protect him; and this is a very frequent reason for
payments; John, son of Ordgar, gave a Norway hawk, to have the king’s
request to the king of Norway to let him have his brother Godard’s
chattels; Richard de Neville gave twenty palfreys to obtain the king’s
request to Isolda Bisset, that she should take him for a husband; Roger
Fitz-Walter gave three good palfreys to have the king’s letter to Roger
Bertram’s mother, that she should marry him; Eling the dean paid one
hundred marks, that his whore and his children might be let out upon
bail; the bishop of Winchester gave one tun of good wine for his not
putting the king in mind to give a girdle to the countess of Albemarle;
Robert de Veaux gave five of the best palfreys, that the king would
hold his tongue about Henry Pinel’s wife. There are in the records of
exchequer many other singular instances of a like nature.[*] It will,
however, be just to remark, that the same ridiculous practices and
dangerous abuses prevailed in Normandy, and probably in all the other
states of Europe.[**] England was not in this respect more barbarous
than its neighbors.
These iniquitous practices of the Norman kings were so well known, that,
on the death of Hugh Bigod, in the reign of Henry II., the best and most
just of these princes, the eldest son and the widow of this nobleman
came to court, and strove, by offering large presents to the king, each
of them to acquire possession of that rich inheritance. The king was so
equitable as to order the cause to be tried by the great council!
But, in the mean time, he seized all the money and treasure of the
deceased,[***] Peter, of Blois, a judicious, and even an elegant writer,
for that age, gives a pathetic description of the reign of Henry; and he
scruples not to complain to the king himself of these abuses.[****]
[* We shall gratify the reader’s curiosity by
subjoining a few more instances from Madox, p. 332. Hugh
Oisel was to give the king two robes of a good green color,
to have the king’s letters patent to the merchants of
Flanders with a request to render him one thousand marks,
which he lost in Flanders. The abbot of Hyde paid thirty
marks, to have the king’s letters of request to the
archbishop of Canterbury, to remove certain monks that were
against the abbot. Roger de Trihanton paid twenty marks and
a palfrey, to have the king’s request to Richard de
Umfreville to give him his sister to wife, and to the sister
that she would accept of him for a husband; William de
Cheveringworth paid five marks, to have the king’s letter to
the abbot of Perfore, to let him enjoy peaceably his tithes
as formerly; Matthew de Hereford, clerk, paid ten marks for
a letter of request to the bishop of Llandaff, to let him
enjoy peaceably his church of Schenfrith; Andrew Neuhm gave
three Flemish caps, for the king’s request to the prior of
Chikesand, for performance of an agreement made between
them; Henry de Fontibus gave a Lombardy horse of value, to
have the king’s request to Henry Fitz-Hervey, that he would
give him his daughter to wife; Roger, son of Nicholas,
promised all the lampreys he could get, to have the king’s
request to Earl William Mareschal, that he would grant him
the manor of Langeford at Ferm. The burgesses of Glocester
promised three hundred lampreys, that they might not be
distrained to find the prisoners of Poictou with
necessaries, unless they pleased. Madox, p. 352. Jordan, sen
of Reginald, paid twenty marks, to have the king’s request
to William Panier, that he would grant him the land of Mill
Nierenuit, and the custody of his heirs; and if Jordan
obtained the same, he was to pay the twenty marks, otherwise
not. Madox, p. 333,]
[** Madox, Hist. of the Exch. p, 359.]
[*** Benedict. Abbas, p. 180, 181.]
[**** Petri Bless. Epist. 95, apud Bibl. Patrum,
tom. 24, p. 2014.]
We may judge what the case would be under the government of worse
princes. The articles of inquiry concerning the conduct of sheriffs,
which Henry promulgated in 1170, show the great power as well as the
licentiousness of these officers.[**]
Amerciaments or fines for crimes and trespasses were an ether
considerable branch of the royal revenue.[***] Most crimes were atoned
for by money; the fines imposed were not limited by any rule or statute;
and frequently occasioned the total ruin of the person, even for the
slightest trespasses. The forest laws, particularly, were a great source
of oppression The king possessed sixty-eight forests, thirteen
chases, and seven hundred and eighty-one parks, in different parts of
England;[****] and, considering the extreme passion of the English and
Normans for hunting, these were so many snares laid for the people, by
which they were allured into trespasses and brought within the reach of
arbitrary and rigorous laws, which the king had thought proper to enact
by his own authority.
But the most barefaced acts of tyranny and oppression were practised
against the Jews, who were entirely out of the protection of law, were
extremely odious from the bigotry of the people, and were abandoned to
the immeasurable rapacity of the king and his ministers. Besides many
other indignities to which they were continually exposed, it appears
that they were once all thrown into prison, and the sum of sixty-six
thousand marks exacted for their liberty:[*****] at another time, Isaac
the Jew paid, alone, five thousand one hundred marks[******] Brim, three
thousand marks;[*******] Jurnet, two thousand; Bennet, five hundred: at
another, Licorica, widow of David the Jew, of Oxford, was required to
pay six thousand marks; and she was delivered over to six of the
richest and discreetest Jews in England, who were to answer for the
sum.[********]
[** Hoveden, Chron. Gerv. p. 1410.]
[*** Madox, chap. xiv.]
[**** Spel. Gloss, in verbo Forests.]
[***** Madox, Hist. of the Exch. p. 151. This
happened in the reign of King John.]
[****** Madox, Hist. of the Exch, p. 151]
[******* Madox, Hist. of the Exch, p. 153.]
[******** Madox, Hist. of the Exch, p, 168.]
Henry III borrowed five thousand marks from the earl of Cornwall; and
for his repayment consigned over to him all the Jews in England. The
revenue arising from exactions upon this nation was so considerable,
that there was a particular court of exchequer set apart for managing
it.
We may judge concerning the low state of commerce among the English,
when the Jews, notwithstanding these oppressions, could still find
their account in trading among them, and lending them money. And as
the improvements of agriculture were also much checked by the immense
possessions of the nobility, by the disorders of the times, and by the
precarious state of feudal property, it appears that industry of no kind
could then have place in the kingdom.
It is asserted by Sir Harry Spelman,[*] as an undoubted truth, that,
during the reigns of the first Norman princes, every edict of the king,
issued with the consent of his privy council, had the full force of
law. But the barons surely were not so passive as to intrust a power,
entirely arbitrary and despotic, into the hands of the sovereign. It
only appears, that the constitution had not fixed any precise boundaries
to the royal power; that the right of issuing proclamations on any
emergence, and of exacting obedience to them,--a right which was always
supposed inherent in the crown,--is very difficult to be distinguished
from a legislative authority; that the extreme imperfection of the
ancient laws, and the sudden exigencies which often occurred in such
turbulent governments, obliged the prince to exert frequently the
latent powers of his prerogative; that he naturally proceeded, from the
acquiescence of the people, to assume, in many particulars of moment,
an authority from which he had excluded himself by express statutes,
charters, or concessions, and which was, in the main, repugnant to the
general genius of the constitution; and that the lives; the personal
liberty, and the properties of all his subjects were less secured by law
against the exertion of his arbitrary authority than by the independent
power and private connections of each individual.
[* We learn from the extracts given us of Domesday
by Brady in his Treatise of Boroughs, that almost all the
boroughs of England had suffered in the shock of the
conquest, and had extremely decayed between the death of the
Confessor and the time when Domesday was framed. * Gross. in
verb. Justicium Dei. The author of the Miroir des Justices
complains that ordinances are only made by the king and his
clerks, and by aliens and others, who dare not contradict
the king, but study to please him. Whence, he concludes,
laws are oftener dictated by will than founded on right.]
It appears from the Great Charter itself, that not only John, a
tyrannical prince, and Richard, a violent one, but their father, Henry,
under whose reign the prevalence of gross abuses is the least to be
suspected, were accustomed, from their sole authority, without process
of law, to imprison, banish, and attaint the freemen of their kingdom.
A great baron, in ancient times, considered himself as a kind of
sovereign within his territory; and was attended by courtiers and
dependants more zealously attached to him than the ministers of state
and the great officers were commonly o their sovereign. He often
maintained in his court the parade of royalty, by establishing
a justiciary, constable, mareschal, chamberlain, seneschal, and
chancellor, and assigning to each of these officers a separate
province and command He was usually very assiduous in exercising his
jurisdiction, and took such delight in that image of sovereignty, that
it was found necessary to restrain his activity, and prohibit him by law
from holding courts too frequently.[*] It is not to be doubted but the
example set him by the prince, of a mercenary and sordid extortion,
would be faithfully copied; and that all his good and bad offices, his
justice and injustice, were equally put to sale. He had the power, with
the king’s consent, to exact talliages even from the free citizens who
lived within his barony; and as his necessities made him rapacious, his
authority was usually found to be more oppressive and tyrannical than
that of the sovereign.[**] He was ever engaged in hereditary or
personal animosities or confederacies with his neighbors, and often
gave protection to all desperate adventurers and criminals, who could be
useful in serving his violent purposes. He was able alone, in times
of tranquillity, to obstruct the execution of justice within his
territories; and by combining with a few malecontent barons of high rank
and power, he could throw the state into convulsions. And, on the whole,
though the royal authority was confined within bounds, and often within
very narrow ones, yet the check was Irregular, and frequently the source
of great disorders; nor was it derived from the liberty of the people,
but from the military power of many petty tyrants, who were equally
dangerous to the prince and oppressive to the subject.
[* Dugd. Jurid. Orig. p. 26.]
[** Madox, Hist. of the Exch. p. 520.]
The power of the church was another rampart against royal authority; but
this defence was also the cause of many mischiefs and inconveniencies.
The dignified clergy, perhaps, were not so prone to immediate violence
as the barons; but as they pretended to a total independence on the
state, and could always cover themselves with the appearances of
religion, they proved, in one respect, an obstruction to the settlement
of the kingdom, and to the regular execution of the laws. The policy
of the Conqueror was in this particular liable to some exception. He
augmented the superstitious veneration for Rome, to which that age was
so much inclined, and he broke those bands of connection which, in the
Saxon times, had preserved a union between the lay and the clerical
orders. He prohibited the bishops from sitting in the county courts; he
allowed ecclesiastical causes to be tried in spiritual courts only;[**]
and he so much exalted the power of the clergy, that of sixty thousand
two hundred and fifteen knights’ fees, into which he divided England,
he placed no less than twenty-eight thousand and fifteen under the
church.[**]
The right of primogeniture was introduced with the feudal law; an
institution which is hurtful by producing and maintaining an unequal
division of private propeny; but is advantageous in another respect, by
accustoming the people to a preference in favor of the eldest son, and
thereby preventing a partition or disputed succession in the monarchy.
The Normans introduced the use of surnames, which tend to preserve the
knowledge of families and pedigrees. They abolished none of the old,
absurd methods of trial by the cross or ordeal; and they added a new
absurdity--the trial by single combat--[***] which became a regular
part of jurisprudence, and was conducted with all the order, method,
devotion, and solemnity imaginable.[****] The ideas of chivalry also
seem to have been imported by the Normans: no traces of those fantastic
notions are to be found among the plain and rustic Saxons.
[* Char. Will, apud Wilkms, p. 230. Spel. Concil.
vol. ii p. 14.]
[** Spel. Gloss, in verb. Manus mortua. We are not
to imagine, as some have done, that the church possessed
lands in this proportion, but only that they and their
vassals enjoyed such a proportionable part of the landed
property.]
[*** LL. Will. cap. 68.]
[**** Spel. Gloss, in verbo Campus. The last
instance of these duels was in the 16th of Eliz. So long did
that absurdity remain.]
The feudal institutions, by raising the military tenants to a kind of
sovereign dignity, by rendering personal strength and valor requisite,
and by making every knight and baron his own protector and avenger,
begat that martial pride and sense of honor which, being cultivated
and embellished by the poets and romance writers of the age, ended in
chivalry. The virtuous knight fought not only in his own quarrel, but in
that of the innocent, of the helpless, and, above all, of the fair, whom
he supposed to be forever under the guardianship of his valiant arm.
The uncourteous knight who, from his castle, exercised robbery on
travellers, and committed violence on virgins, was the object of his
perpetual indignation; and he put him to death, without scruple, or
trial, or appeal, wherever he met with him. The great independence
of men made personal honor and fidelity the chief tie among them,
and rendered it the capital virtue of every true knight, or genuine
professor of chivalry. The solemnities of single combat, as established
by law, banished the notion of every thing unfair or unequal in
rencounters, and maintained an appearance of courtesy between the
combatants till the moment of their engagement. The credulity of the
age grafted on this stock the notion of giants, enchanters, dragons,
spells,[*] and a thousand wonders, which still multiplied during the
times of the crusades; when men, returning from so great a distance,
used the liberty of imposing every fiction on their believing audience.
These ideas of chivalry infected the writings, conversation, and
behavior of men, during some ages; and even after they were, in a great
measure, banished by the revival of learning, they left modern gallantry
and the point of honor, which still maintain their influence, and are
the genuine off-spring of those ancient affectations.
[* In all legal single combats, it was part of the
champion’s oath, that he carried not about him any herb,
spell, or enchantment, by which he might procure victory.
Dugd. Orig. Jurid. p. 82.]
The concession of the Great Charter, or rather its full establishment,
(for there was a considerable interval of time between the one and
the other,) gave rise, by degrees, to a new species of government, and
introduced some order and justice into the administration. The ensuing
scenes of our history are therefore somewhat different from the
preceding. Yet the Great Charter contained no establishment of new
courts magistrates, or senates, nor abolition of the old. It introduced
no new distribution of the powers of the common-wealth, and no
innovation in the political or public law of the kingdom. It only
guarded, and that merely by verbal clauses, against such tyrannical
practices as are incompatible with civilized government, and, if
they become very frequent, are incompatible with all government.
The barbarous license of the kings, and perhaps of the nobles, was
thenceforth somewhat more restrained: men acquired some more security
for their properties and their liberties; and government approached a
little nearer to that end for which it was originally instituted--the
distribution of justice, and the equal protection of the citizens. Acts
of violence and iniquity in the crown, which before were only deemed
injurious to individuals, and were hazardous chiefly in proportion to
the number, power, and dignity of the persons affected by them, were now
regarded, in some degree, as public injuries, and as infringements of a
charter calculated for general security. And thus the establishment of
the Great Charter, without seeming anywise to innovate in the
distribution of political power, became a kind of epoch in the
constitution.
NOTES.
[Footnote 1: NOTE A, p. 9. This question has been disputed With as great
zeal, and even acrimony, between the Scotch and Irish antiquaries, as if
the honor of their respective countries were the most deeply concerned
in the decision. We shall not enter into any detail on so uninteresting
a subject, but shall propose our opinion in a few words. It appears more
than probable, from the similitude of language and manners, that Britain
either was originally peopled, or was subdued, by the migration of
inhabitants from Gaul, and Ireland from Britain: the position of the
several countries is an additional reason that favors this conclusion.
It appears also probable, that the migrations of that colony of Gauls
or Celts, who peopled or subdued Ireland, was originally made from the
north-west parts of Britain; and this conjecture (if it do not merit
a higher name) is founded both on the Irish language which is a very
different dialect from the Welsh, and from the language anciently
spoken in South Britain, and on the vicinity of Lancashire, Cumberland,
Galloway, and Argyleshire, to that island. These events, as they passed
along before the age of history and records, must be known by reasoning
alone, which, in this case, seems to be pretty satisfactory. Caesar and
Tacitus, not to mention a multitude of other Greek and Roman authors,
were guided by like inferences. But, besides these primitive facts, which
lie in a very remote antiquity, it is a matter of positive and undoubted
testimony, that the Roman province of Britain, during the time of the
lower empire, was much infested by bands of robbers or pirates, whom
the provincial Britons called Scots or Scuits; a name which was probably
used as a term of reproach, and which these bandits themselves did not
acknowledge or assume. We may infer, from two passages in Claudian,
and from one in Orosius, and another in Isidore, that the chief seat
of these Scots was in Ireland. That some part ot the Irish freebooters
migrated back to the north-west parts of Britain, whence their ancestors
had probably been derived in a more remote age, is positively asserted
by Bede, and implied in Gildas. I grant, that neither Bede nor Gildas
are Caesars or Tacituses; but such as they are, they remain the sole
testimony on the subject, and therefore must be relied on for want of
better: happily, the frivolousness of the question corresponds to the
weakness of the authorities. Not to mention, that, if any part of the
traditional history of a barbarous people can be relied on, it is the
genealogy of nations, and even sometimes that of families. It is in vain
to argue against these facts, from the supposed warlike disposition of
the Highlanders, and unwarlike of the ancient Irish. Those arguments are
still much weaker than the authorities. Nations change very quickly
in these particulars. The Britons were unable to resist the Picts and
Scots, and invited over the Saxons for their defence, who repelled those
invaders; yet the same Britons valiantly resisted, for one hundred
and fifty years, not only this victorious band of Saxons, but infinite
numbers more, who poured in upon them from all quarters. Robert Bruce,
in 1322, made a peace, in which England, after many defeats, was
constrained to acknowledge the independence of his country; yet in no
more distant period than ten years after, Scotland was totally subdued
by a small handful of English, led by a few private noblemen. All
history is full of such events. The Irish Scots, in the course of two or
three centuries, might find time and opportunities sufficient to settle
in North Britain, though we can neither assign the period nor causes
of that revolution. Their barbarous manner of life rendered them much
fitter than the Romans for subduing these mountaineers. And, in a
word, it is clear, from the language of the two countries, that the
Highlanders and the Irish are the same people, and that the one are a
colony from the other. We have positive evidence, which, though from
neutral persons, is not perhaps the best that may be wished for, that
the former, in the third or fourth century, sprang from the latter; we
have no evidence at all that the latter sprang from the former. I shall
add, that the name of Erse, or Irish, given by the low country Scots
to the language of the Scotch Highlanders, is a certain proof of the
traditional opinion delivered from father to son, that the latter people
came originally from Ireland.]
[Footnote 2: NOTE B, p. 90. There is a seeming contradiction in ancient
historians with regard to some circumstances in the story of Edwy and
Elgiva. It is agreed, that this prince had a violent passion for his
second or third cousin, Elgiva, whom he married, though within the
degrees prohibited by the canons. It is also agreed, that he was
dragged from a lady on the day of his coronation, and that the lady was
afterwards treated with the singular barbarity above mentioned. The only
difference is, that Osborne and some others call her his strumpet, not
his wife, as she is said to be by Malmsbury. But this difference is
easily reconciled for if Edwy married her contrary to the canons, the
monks would be sure to deny her to be his wife, and would insist that
she could be nothing but his strumpet: so that, on the whole, we may
esteem this representation of the matter as certain; at least, as by far
the most probable. If Edwy had only kept a mistress, it is well known,
that there are methods of accommodation with the church, which would
have prevented the clergy from proceeding to such extremities against
him: but his marriage, contrary to the canons, was an insult on their
authority, and called for their highest resentment.]
[Footnote 3: NOTE C, p. 91. Many of the English historians make Edgar’s
ships amount to an extravagant number, to three thousand or three
thousand six hundred. See Hoveden, p. 426. Flor. Wigorn, p. 607. Abbas
Rieval, p. 360. Brompton (p. 869) says that Edgar had four thousand
vessels. How can these accounts be reconciled to probability, and to
the state of the navy in the time of Alfred? W. Thorne makes the whole
number amount only to three hundred, which is more probable. The fleet
of Ethelred, Edgar’s son, must have been short of a thousand ships; yet
the Saxon Chronicle (p. 137) says it was the greatest navy that ever had
been seen in England.]
[Footnote 4: NOTE D, p. 109. Almost all the ancient historians speak of
this massacre of the Danes as if it had been universal, and as if every
individual of that nation throughout England had been put to death.
But the Danes were almost the sole inhabitants in the kingdoms of
Northumberland and East Anglia, and were very numerous in Mercia. This
representation, therefore, of the matter is absolutely impossible. Great
resistance must have been made, and violent wars ensued; which was not
the case. This account given by Wallingford, though he stands single,
must be admitted as the only true one. We are told that the name
Lurdane, Lord Dane, for an idle, lazy fellow, who lives at other
people’s expense, came from the conduct of the Danes who were put to
death. But the English princes had been entirely masters for several
generations, and only supported a military corps of that nation. It
seems probable, therefore, that it was these Danes only that were put to
death.]
[Footnote 5: NOTE E, p. 129. The ingenious author of the article Godwin,
in the Biographia Britannica, has endeavored to clear the memory of
that nobleman, upon the supposition that all the English annals had been
falsified by the Norman historians after the conquest. But that this
supposition has not much foundation appears hence, that almost all these
historians have given a very good character of his son Harold, whom it
was much more the interest of the Norman cause to blacken.]
[Footnote 6: Note F, p. 137. The whole story of the transactions between
Edward, Harold, and the duke of Normandy, is told so differently by the
ancient writers, that there are few important passages of the English
history liable to so great uncertainty. I have followed the account
which appeared to me the most consistent and probable. It does not seem
likely that Edward ever executed a will in the duke’s favor; much less
that he got it ratified by the states of the kingdom, as is affirmed by
some. The will would have been known to all, and would have been pro-*
*duced by the Conqueror, to whom it gave so plausible, and really so
just, a title; but the doubtful and ambiguous manner in which he seems
always to have mentioned it, proves that he could only plead the known
intentions of that monarch in his favor, which he was desirous to call
a will. There is indeed a charter of the Conqueror preserved by Dr.
Hickes, (vol. i.) where he calls himself “rex hereditarius,” meaning
heir by will; but a prince possessed of so much power, and attended with
so much success, may employ what pretence he pleases; it is sufficient
to refute his pretences to observe, that there is a great difference
and variation among historians with regard to a point which, had it been
real, must have been agreed upon by all of them.
Again, some historians, particularly Malmsbury and Matthew of
Westminster, affirm that Harold had no intention of going over to
Normandy, but that taking the air in a pleasure boat on the coast, he
was driven over by stress of weather to the territories of Guy, count of
Ponthieu: but besides that this story is not probable in itself, and is
contradicted by most of the ancient historians, it is contradicted by a
very curious and authentic monument lately discovered. It is a tapestry,
preserved in the ducal palace of Rouen, and supposed to have been
wrought by orders of Matilda, wife to the emperor; at least it is
of very great antiquity. Harold is there represented as taking his
departure from King Edward, in execution of some commission, and
mounting his vessel with a great train. The design of redeeming his
brother and nephew, who were hostages, is the most likely cause that can
be assigned; and is accordingly mentioned by Eadmer, Hoveden, Brompton,
and Simeon of Durham. For a further account of this piece of tapestry,
see Histoire de l’Académie de Littérature, tom. ix. p. 535.]
[Footnote 7: NOTE G, p. 155. It appears from the ancient translations of
the Saxon annals and laws, and from King Alfred’s translation of
Bede, as well as from all the ancient historians, that comes in Latin,
alderman in Saxon, and earl in Dano-Saxon, were quite synonymous. There
is only a clause in a law of King Athetetan’s, (see Spel. Concil. p.
406,) which has stumbled some antiquaries, and has made them imagine
that an earl was superior to an alderman. The weregild, or the price of
an earl’s blood, is there fixed at fifteen thousand thrimsas, equal to
that of an archbishop; whereas that of a bishop and alderman is only
eight thousand thrimsas. To solve this difficulty, we must have recourse
to Selden’s conjecture, (see his Titles of Honor, chap. v. p. 603, 604,)
that the term of earl was in the age of Athelstan just beginning to be
in use in England, and stood at that time for the atheling or prince of
the blood, heir to the crown. This he confirms by a law of Canute, sect.
55, where an atheling and an archbishop are put upon the same footing.
In another law of the same Athelstan, the weregild of the prince or
atheling, is said to be fifteen thousand thrimsas. See Wilkins, p. 71 He
is therefore the same who is called earl in the former law.]
[Footnote 8: NOTE H, p. 194. There is a paper or record of the family
of Slarneborne, which pretends that that family, which was Saxon, was
restored upon proving their innocence, as well as other Saxon families
which were in the same situation. Though this paper was able to impose
on such great antiquaries as Spelman (see Gloss, in verbo Drenges) and
Dugdale, (see Baron, vol. i. p. 118,) it is proved by Dr. Brady (see
Answer to Petyt, p. 11, 12) to have been a forgery; and is allowed as
such by Tyrrel, though a pertinacious defender of his party notions:
(see his history, vol. ii. introd. p. 51, 73.) Ingulf (p. 70) tells us,
that very early Hereward, though absent during the time of the conquest,
was turned out of all his estate, and could not obtain redress, William
even plundered the monasteries. Flor. Wigorn. p. 636 Chron. Abb. St.
Petri de Burgo, p. 48. M. Paris, p. 5. Sim. Dun p. 200. Diceto, p. 482.
Brompton, p. 967. Knyghton, p. 2344. Alured. Beverl. p. 130. We are told
by Ingulf, that Ivo de Taillebois plundered the monastery of Croylaud of
a great part of its land, and no redress could be obtained.]
[Footnote 9: NOTE I, p. 195. The obliging of all the inhabitants to
put out their fires and lights it certain hours, upon the sounding of a
bell, called the Courfeu, is represented by Polydore Virgil, lib. ix.,
as a mark of the servitude of the English. But this was a law of police,
which William had previously established in Normandy. See Du Moulin,
Hist de Normandie, p. 160. The same law had place in Scotland. LL.
Burgor. cap. 86.]
[Footnote 11: NOTE K, p. 200. What these laws were of Edward the
Confessor, which the English, every reign during a century and a
half, desire so passionately to have restored, is much disputed by
antiquaries, and our ignorance of them seems one of the greatest defects
in the ancient English history. The collection of laws in Wilkins, which
pass under the name of Edward, are plainly a posterior and an ignorant
compilation. Those to be found in Ingulf are genuine; but so imperfect,
and contain so few clauses favorable to the subject, that we see no
great reason for their contending for them so vehemently. It is probable
that the English meant the common law, as it prevailed during the
reign of Edward; which we may conjecture to have been more indulgent to
liberty than the Norman institutions. The most material articles of it
were afterwards comprehended in Magna Charta.]
[Footnote 12: NOTE L, p. 218. Ingulf p. 70. H. Hunt. p. 370, 372. M.
West. p. 225. Gul. Neub. p. 357. Alured. Beverl. p. 124. De Gest, Angl.
p. 333. M Paris, p. 4. Sim. Dun. p. 206. Brompton, p. 962, 980, 1161.
Gervase. lib. i. cap. 16. Textus Roffensis apud Seld. Spieileg. ad Eadm.
p. 197. Gul. Pict. p. 206. Ordericus Vitalis, p. 521, 666, 853., Epist.
St. Thom, p. 801. Gul. Malms, p. 52, 57. Knyghton, p. 2354. Eadmer, p.
110. Thorn. Rudborne in Ang. Sacra, vol. i p. 248. Monach. Roff. in Ang.
Sacra, vol. ii. p. 276. Girald. Camb. in eadem, vol. ii. p. 413. Hist.
Elyensis, p. 516.
The words of this last historian, who is very ancient, are remarkable,
and worth transcribing. Rex itaque factus, Willielmus, quid in principes
Anglorum, qui tantæ cladi superesse poterant, fecerit, dicere, cum nihil
prosit, omitto. Quid enim prodesset, si nec unum in toto regno de
illis dicerem pristina potestate uti permissum, sed omnes aut in gravem
paupertatis ærumnam detrusos, aut exhæredatos, patria pulsos, aut
effossia, oculis, vel cæteris amputatis membris, opprobrium hominum
factos, aut certe miserrime afflictos, vita privatos. Simili modo
utilitate carere existimo dicere quid in minorem populum, non solum ab
esed[**] a suis actum sit, cum id dictu sciamus difficile et ob immanem
crudelitatem fortassis incredibile.]
[Footnote 13: NOTE M, p. 263 Henry, by the feudal customs, was entitled
to levy a tax for the marrying of his eldest daughter, and he exacted
three shillings a hide on all England. H. Hunting, p. 379. Some
historians (Brady, p. 270, and Tyrrel, vol. ii. p. 182) heedlessly make
this sum amount to above eight hundred thousand pounds of our present
money; but it could not exceed one hundred and thirty-five thousand.
Five hides, sometimes less, made a knight’s fee, of which there were
about sixty thousand in England, consequently near three hundred
thousand hides; and at the rate of three shillings a hide, the sum would
amount to forty-five thousand pounds, or one hundred and thirty-five
thousand of our present money. See Rudborne, p. 257. In the Saxon
times there were only computed two hundred and forty-three thousand six
hundred hides in England.]
[Footnote 14: NOTE N, p. 266. The legates a latere, as they were called,
were a kind of delegates, who possessed the full power of the pope
in all the provinces committed to their charge, and were very busy
in extending, as well as exercising it. They nominated to all vacant
benefices, assembled synods, and were anxious to maintain ecclesiastical
privileges, which never could be fully protected without encroachments
on the civi[**] power. If there were the least concurrence or
opposition, it was always supposed that the civil power was to give
way; every deed, which had the least pretence of holding of any thing
spiritual, as marriages, testaments, promissory oaths, were brought
into the spiritual court, and could not be canvassed before a civil
magistrate. These were the established laws of the church; and where a
legate was sent immediately from Rome, he was sure to maintain the papal
claims with the utmost rigor; but it was an advantage to the king
to have the archbishop of Canterbury appointed legate, because the
connections of that prelate with the kingdom tended to moderate
his measures. William of Newbridge, p. 383, (who is copied by later
historians), asserts that Geoffrey had some title to the counties of
Maine and Anjou. He pretends that Count Geoffrey, his father, had left
his these dominions by a secret will, and had ordered that his body
should not be buried till Henry should swear to the observance of it,
which he, ignorant of the contents, was induced to do. But besides that
this story is not very likely in itself, and savers of monkish fiction,
it is found in no other ancient writer, and is contradicted by some of
them, particularly the monk of Marmoutier, who had better opportunities
than Newbridge of knowing the truth. See Vita Gauf Duc. Norman, p. 103.]
[Footnote 16: NOTE P, p. 293. The sum scarcely appears credible; as it
would amount to much above half the rent of the whole land. Gervase is
indeed a contemporary author; but churchmen are often guilty of strange
mistakes of that nature, and are commonly but little acquainted with
the public revenues. This sum would make five hundred and forty thousand
pounds of our present money. The Norman Chronicle (p. 995) lays, that
Henry raised only sixty Angevin shillings on each knight’s fee in his
foreign dominions: this is only a fourth of the sum which Gervase says
he levied on England, an inequality nowise probable. A nation may by
degrees be brought to bear a tax of fifteen shillings in the pound; but
a sudden and precarious tax can never be imposed to that amount without
a very visible necessity, especially in an age so little accustomed to
taxes. In the succeeding reign the rent of a knight’s fee was computed
at four pounds a year. There were sixty thousand knights fees in
England.]
[Footnote 17: NOTE Q, p. 295. Fitz-Stephen, p. 18. This conduct appears
violent and arbitrary; but was suitable to the strain of administration
in those days. His father Geoffrey, though represented as a mild prince,
set him an example of much greater violence. When Geoffrey was master of
Normandy, the chapter of Sens presumed, without his consent, to proceed
to the election of a bishop; upon which he ordered all of them with the
bishop elect, to be castrated, and made all their testicles be brought
him in a platter. Fitz-Steph. p. 44. In the war of Toulouse, Henry laid
a heavy and an arbitrary tax on all the churches within his dominions.
See Epist. St. Thom. p. 232.]
[Footnote 18: NOTE R, p. 307. I follow here the narrative of
Fitz-Stephens, who was secretary to Becket; though, no doubt, he may be
suspected of partiality towards his patron. Lord Lyttleton chooses to
follow the authority of a manuscript letter, or rather manifesto of
Folliot, bishop of London, which is addressed to Becket himself; at
the time when the bishop appealed to the pope from the excommunication
pronounced against him by his primate. My reasons why I give the
preference to Fitz-Stephens are, 1. If the friendship of Fitz-Stephens
might render him partial to Becket even after the death of that prelate,
the declared enmity of the bishop must, during his lifetime, have
rendered him more partial on the other side. 2. The bishop was moved
by interest, as well as enmity, to calumniate Becket. He had himself
to defend against the sentence of excommunication, dreadful to all,
especially to a prelate; and no more effectual means than to throw all
the blame on his adversary. 3. He has actually been guilty of palpable
calumnies in that letter. Among these, I reckon the following. He
affirms that when Becket subscribed the Constitutions of Clarendon, he
said plainly to all the bishops of England, “It is my master’s pleasure,
that I should forswear myself, and at present I submit to it, and do
resolve to incur a perjury, and repent afterwards as I may.” However
barbarous the times, and however negligent zealous churchmen were then
of morality, these are not words which a primate of great sense and of
much seeming sanctity would employ in an assembly of his suffragans: he
might act upon these principles, but never surely would publicly avow
them. Folliot also says, that all the bishops were resolved obstinately
to oppose the Constitutions of Clarendon, but the primate himself
betrayed them from timidity, and led the way to their subscribing.
This is contrary to the testimony of all the historians, and directly
contrary to Beeket’s character, who surely was not destitute either of
courage or of zeal for ecclesiastical immunities. 4. The violence and
injustice of Henry, ascribed to him by Fitz-Stephens, is of a piece
with the rest of the prosecution. Nothing could be more iniquitous than,
after two years’ silence, to make a sudden and unprepared demand upon
Becket to the amount of forty-four thousand marks, (equal to a sum of
near a million in our time,) and not allow him the least interval to
bring in his accounts. If the king was so palpably oppressive in one
article, he may be presumed to be equally so in the rest. 5. Though
Folliot’s letter, or rather manifesto, be addressed to Becket himself,
it does not acquire more authority on that account. We know not what
answer was made by Becket; the collection of letters cannot be supposed
quite complete. But that the collection was not made by one (whoever
he were) very partial to that primate, appears from the tenor of them,
where there are many passages very little favorable to him, insomuch
that the editor of them at Brussels, a Jesuit, thought proper to publish
them with great omissions, particularly of this letter of Folliot’s.
Perhaps Becket made no answer at all, as not deigning to write to ah
excommunicated person, whose very commerce would contaminate him; and
the bishop, trusting to this arrogance of his primate, might calumniate
him the more freely. 6. Though the sentence pronounced on Becket by the
great council, implies that he had refused to make any answer to the
king’s court, this does not fortify the narrative of Folliot. For if his
excuse was rejected as false and frivolous, it would be treated as no
answer. Becket submitted so far to the sentence of confiscation of goods
and chattels, that he gave surety, which is a proof that he meant not at
that time to question the authority of the king’s courts. 7. It may be
worth observing, that both the author of Historia Quadrapartita, Gervase,
contemporary writers, agree with Fitz-Stephens; and the latter is not
usually very partial to Becket. All the ancient historians give the same
account.]
[Footnote 19: NOTE S, p. 392. Madox, in his Baronia Anglica, (cap. 14,)
tells us, that in the thirtieth year of Henry II., thirty-three cows and
two bulls cost but eight pounds seven shillings, money of that age; five
hundred sheep, twenty-two pounds ten shillings, or about tenpence three
farthings per sheep; sixty-six oxen, eighteen pounds three shillings;
fifteen breeding mares, two pounds twelve shillings and sixpence; and
twenty-two hogs, one pound two shillings. Commodities seem then to have
been about ten times cheaper than at present; all except the sheep,
probably on account of the value of the fleece. The same author, in his
Formulare Anglicanum, (p. 17,) says, that in the tenth year of Richard
I., mention is made of ten per cent, paid for money; but the Jews
frequently exacted much higher interest.]