division of the land such as the Danes had made in the ninth century.
But to the people who had recognized William it was but just that the
chance should be given them of retaining what was their own.
Accordingly, when the lands of all those who had fought for Harold were
confiscated, those who were willing to acknowledge William were allowed
to redeem theirs, either paying money at once or giving hostages for the
payment. That under this redemption lay the idea of a new title to the
lands redeemed may be regarded as questionable. The feudal lawyer might
take one view, and the plundered proprietor another. But if charters of
confirmation or regrant were generally issued on the occasion to those
who were willing to redeem, there can be no doubt that, as soon as the
feudal law gained general acceptance, these would be regarded as
conveying a feudal title. What to the English might be a mere payment of
_fyrdwite_, or composition for a recognized offence, might to the
Normans seem equivalent to forfeiture and restoration.
But however this was, the process of confiscation and redistribution of
lands under the new title began from the moment of the coronation. The
next few years, occupied in the reduction of Western and Northern
England, added largely to the stock of divisible estates. The tyranny of
Odo of Bayeux and William Fitzosbern, which provoked attempts at
rebellion in 1067; the stand made by the house of Godwin in Devonshire
in 1068; the attempts of Mercia and Northumbria to shake off the Normans
in 1069 and 1070; the last struggle for independence in 1071, in which
Edwin and Morcar finally fell; the conspiracy of the Norman earls in
1074, in consequence of which Waltheof perished--all tended to the same
result.
After each effort the royal hand was laid on more heavily; more and more
land changed owners, and with the change of owners the title changed.
The complicated and unintelligible irregularities of the Anglo-Saxon
tenures were exchanged for the simple and uniform feudal theory. The
fifteen hundred tenants-in-chief of _Domesday Book_ take the place of
the countless land-owners of King Edward's time, and the loose,
unsystematic arrangements which had grown up in the confusion of title,
tenure, and jurisdiction were replaced by systematic custom. The change
was effected without any legislative act, simply by the process of
transfer under circumstances in which simplicity and uniformity were an
absolute necessity. It was not the change from allodial to feudal so
much as from confusion to order. The actual amount of dispossession was
no doubt greatest in the higher ranks; the smaller owners may to a large
extent have remained in a mediatized position on their estates; but even
_Domesday_, with all its fulness and accuracy, cannot be supposed to
enumerate all the changes of the twenty eventful years that followed the
battle of Hastings. It is enough for our purpose to ascertain that a
universal assimilation of title followed the general changes of
ownership. The king of _Domesday_ is the supreme landlord; all the land
of the nation, the old folkland, has become the king's; and all private
land is held mediately or immediately of him; all holders are bound to
their lords by homage and fealty, either actually demanded or understood
to be demandable, in every case of transfer by inheritance or otherwise.
The result of this process is partly legal and partly constitutional or
political. The legal result is the introduction of an elaborate system
of customs, tenures, rights, duties, profits, and jurisdictions. The
constitutional result is the creation of several intermediate links
between the body of the nation and the king, in the place of or side by
side with the duty of allegiance.
On the former of these points we have very insufficient data; for we are
quite in the dark as to the development of feudal law in Normandy before
the invasion, and may be reasonably inclined to refer some at least of
the peculiarities of English feudal law to the leaven of the system
which it superseded. Nor is it easy to reduce the organization described
in _Domesday_ to strict conformity with feudal law as it appears later,
especially with the general prevalence of military tenure.
The growth of knighthood is a subject on which the greatest obscurity
prevails, and the most probable explanation of its existence in
England--the theory that it is a translation into Norman forms of the
_thegnage_ of the Anglo-Saxon law--can only be stated as probable.
Between the picture drawn in _Domesday_ and the state of affairs which
the charter of Henry I was designed to remedy, there is a difference
which the short interval of time will not account for, and which
testifies to the action of some skilful organizing hand working with
neither justice nor mercy, hardening and sharpening all lines and points
to the perfecting of a strong government.
It is unnecessary to recapitulate here all the points in which the
Anglo-Saxon institutions were already approaching the feudal model; it
may be assumed that the actual obligation of military service was much
the same in both systems, and that even the amount of land which was
bound to furnish a mounted warrior was the same however the conformity
may have been produced. The _heriot_ of the English earl or _thegn_ was
in close resemblance with the _relief_ of the Norman count or knight.
But however close the resemblance, something was now added that made the
two identical. The change of the heriot to the relief implies a
suspension of ownership, and carries with it the custom of "livery of
seisin." The heriot was the payment of a debt from the dead man to his
lord; his son succeeded him by allodial right. The relief was paid by
the heir before he could obtain his father's lands; between the death of
the father and livery of seisin to the son the right of the "overlord"
had entered; the ownership was to a certain extent resumed, and the
succession of the heir took somewhat of the character of a new grant.
The right of wardship also became in the same way a reëntry, by the
lord, on the profits of the estate of the minor, instead of being, as
before, a protection, by the head of the kin, of the indefeasible rights
of the heir, which it was the duty of the whole community to maintain.
There can be no doubt that the military tenure--the most prominent
feature of historical feudalism--was itself introduced by the same
gradual process which we have assumed in the case of the feudal usages
in general. We have no light on the point from any original grant made
by the Conqueror to a lay follower, but judging by the grants made to
the churches we cannot suppose it probable that such gifts were made on
any expressed condition, or accepted with a distinct pledge to provide a
certain contingent of knights for the king's service. The obligation of
national defence was incumbent, as of old, on all land-owners, and the
customary service of one fully armed man for each five hides of land was
probably the rate at which the newly endowed follower of the king would
be expected to discharge his duty. The wording of the _Domesday_ survey
does not imply that in this respect the new military service differed
from the old; the land is marked out, not into knights' fees, but into
hides, and the number of knights to be furnished by a particular
feudatory would be ascertained by inquiring the number of hides that he
held, without apportioning the particular acres that were to support the
particular knight.
It would undoubtedly be on the estates of the lay vassals that a more
definite usage would first be adopted, and knights bound by feudal
obligations to their lords receive a definite estate from them. Our
earliest information, however, on this as on most points of tenure, is
derived from the notices of ecclesiastical practice. Lanfranc, we are
told, turned the _drengs_, the rent-paying tenants of his archiepiscopal
estates, into knights for the defence of the country; he enfeoffed a
certain number of knights who performed the military service due from
the archiepiscopal barony. This had been done before the _Domesday_
survey, and almost necessarily implies that a like measure had been
taken by the lay vassals. Lanfranc likewise maintained ten knights to
answer for the military service due from the convent of Christ Church,
which made over to him, in consideration of the relief, land worth two
hundred pounds annually. The value of the knight's fee must already have
been fixed at twenty pounds a year.
In the reign of William Rufus the abbot of Ramsey obtained a charter
which exempted his monastery from the service of ten knights due from it
on festivals, substituting the obligation to furnish three knights to
perform service on the north of the Thames--a proof that the lands of
that house had not yet been divided into knights' fees. In the next
reign, we may infer--from the favor granted by the King to the knights
who defended their lands _per loricas_ (that is, by the hauberk) that
their demesne lands shall be exempt from pecuniary taxation--that the
process of definite military infeudation had largely advanced. But it
was not even yet forced on the clerical or monastic estates. When, in
1167, the abbot of Milton, in Dorset, was questioned as to the number of
knights' fees for which he had to account, he replied that all the
services due from his monastery were discharged out of the demesne; but
he added that in the reign of Henry I, during a vacancy in the abbacy,
Bishop Roger, of Salisbury, had enfeoffed two knights out of the abbey
lands. He had, however, subsequently reversed the act and had restored
the lands, whose tenure had been thus altered, to their original
condition of rent-paying estate or "socage."
The very term "the new feoffment," which was applied to the knights'
fees created between the death of Henry I and the year in which the
account preserved in the _Black Book_ of the exchequer was taken, proves
that the process was going on for nearly a hundred years, and that the
form in which the knights' fees appear when called on by Henry II for
"scutage" was most probably the result of a series of compositions by
which the great vassals relieved their lands from a general burden by
carving out particular estates, the holders of which performed the
services due from the whole; it was a matter of convenience and not of
tyrannical pressure. The statement of Ordericus Vitalis that the
Conqueror "distributed lands to his knights in such fashion that the
kingdom of England should have forever sixty thousand knights, and
furnish them at the king's command according to the occasion," must be
regarded as one of the many numerical exaggerations of the early
historians. The officers of the exchequer in the twelfth century were
quite unable to fix the number of existing knights' fees.
It cannot even be granted that a definite area of land was necessary to
constitute a knight's fee; for although at a later period and in local
computations we may find four or five hides adopted as a basis of
calculation, where the extent of the particular knight's fee is given
exactly, it affords no ground for such a conclusion. In the _Liber
Niger_ we find knights' fees of two hides and a half, of two hides, of
four, five, and six hides. Geoffrey Ridel states that his father held
one hundred and eighty-four _carucates_ and a _virgate_, for which the
service of fifteen knights was due, but that no knights' fees had been
carved out of it, the obligation lying equally on every carucate. The
archbishop of York had far more knights than his tenure required. It is
impossible to avoid the conclusion that the extent of a knight's fee was
determined by rent or valuation rather than acreage, and that the common
quantity was really expressed in the twenty _librates_, the twenty
pounds' worth of annual value which until the reign of Edward I was the
qualification for knighthood.
It is most probable that no regular account of the knights' fees was
ever taken until they became liable to taxation, either in the form of
_auxilium militum_ under Henry I, or in that of scutage under his
grandson. The facts, however, which are here adduced, preclude the
possibility of referring this portion of the feudal innovations to the
direct legislation of the Conqueror. It may be regarded as a secondary
question whether the knighthood here referred to was completed by the
investiture with knightly arms and the honorable accolade. The
ceremonial of knighthood was practised by the Normans, whereas the
evidence that the English had retained the primitive practice of
investing the youthful warrior is insufficient; yet it would be rash to
infer that so early as this, if indeed it ever was the case, every
possessor of a knight's fee received formal initiation before he assumed
his spurs. But every such analogy would make the process of transition
easier and prevent the necessity of any general legislative act of
change.
It has been maintained that a formal and definitive act, forming the
initial point of the feudalization of England, is to be found in a
clause of the laws, as they are called, of the Conqueror; which directs
that every freeman shall affirm, by covenant and oath, that "he will be
faithful to King William within England and without, will join him in
preserving his lands and honor with all fidelity, and defend him against
his enemies." But this injunction is little more than the demand of the
oath of allegiance which had been taken to the Anglo-Saxon kings and is
here required not of every feudal dependent of the King, but of every
freeman or freeholder whatsoever.
In that famous council of Salisbury of 1086, which was summoned
immediately after the making of the _Domesday_ survey, we learn from the
_Chronicle_ that there came to the King "all his witan, and all the
landholders of substance in England whose vassals soever they were, and
they all submitted to him, and became his men and swore oaths of
allegiance that they would be faithful to him against all others." In
this act have been seen the formal acceptance and date of the
introduction of feudalism, but it has a very different meaning. The oath
described is the oath of allegiance, combined with the act of homage,
and obtained from all land-owners, whoever their feudal lord might be.
It is a measure of precaution taken against the disintegrating power of
feudalism, providing a direct tie between the sovereign and all
freeholders which no inferior relation existing between them and the
mesne lords would justify them in breaking. The real importance of the
passage as bearing on the date of the introduction of feudal tenure is
merely that it shows the system to have already become consolidated; all
the land-owners of the kingdom had already become, somehow or other,
vassals, either of the king or of some tenant under him. The lesson may
be learned from the fact of the _Domesday_ survey.
The introduction of such a system would necessarily have effects far
wider than the mere modification of the law of tenure; it might be
regarded as a means of consolidating and concentrating the whole
machinery of government; legislation, taxation, judicature, and military
defence were all capable of being organized on the feudal principle, and
might have been so had the moral and political results been in harmony
with the legal. But its tendency when applied to governmental machinery
is disruptive. The great feature of the Conqueror's policy is his defeat
of that tendency. Guarding against it he obtained recognition as the
King of the nation and, so far as he could understand them and the
attitude of the nation allowed, he maintained the usages of the nation.
He kept up the popular institutions of the hundred court and the shire
court. He confirmed the laws which had been in use in King Edward's
days, with the additions which he himself made for the benefit, as he
especially tells us, of the English.
We are told, on what seems to be the highest legal authority of the next
century, that he issued in his fourth year a commission of inquiry into
the national customs, and obtained from sworn representatives of each
county a declaration of the laws under which they wished to live. The
compilation that bears his name is very little more than a reissue of
the code of Canute; and this proceeding helped greatly to reconcile the
English people to his rule. Although the oppressions of his later years
were far heavier than the measures taken to secure the immediate success
of the Conquest, all the troubles of the kingdom after 1075, in his
sons' reigns as well as in his own, proceeded from the insubordination
of the Normans, not from the attempts of the English to dethrone the
king. Very early they learned that, if their interest was not the
king's, at least their enemies were his enemies; hence they are
invariably found on the royal side against the feudatories.
This accounts for the maintenance of the national force of defence, over
and above the feudal army. The _fyrd_ of the English, the general
armament of the men of the counties and hundreds, was not abolished at
the Conquest, but subsisted even through the reigns of William Rufus and
Henry I, to be reformed and reconstituted under Henry II; and in each
reign it gave proof of its strength and faithfulness. The _witenagemot_
itself retained the ancient form, the bishops and abbots formed a chief
part of it, instead of being, as in Normandy, so insignificant an
element that their very participation in deliberation has been doubted.
The king sat crowned three times in the year in the old royal towns of
Westminster, Winchester, and Gloucester, hearing the complaints of his
people, and executing such justice as his knowledge of their law and
language and his own imperious will allowed. In all this there is no
violent innovation, only such gradual essential changes as twenty
eventful years of new actors and new principles must bring, however
insensibly the people themselves--passing away and being replaced by
their children--may be educated to endurance.
It would be wrong to impute to the Conqueror any intention of deceiving
the nation by maintaining its official forms while introducing new
principles and a new race of administrators. What he saw required change
he changed with a high hand. But not the less surely did the change of
administrators involve a change of custom, both in the church and in the
state. The bishops, ealdormen, and sheriffs of English birth were
replaced by Normans; not unreasonably, perhaps, considering the
necessity of preserving the balance of the state. With the change of
officials came a sort of amalgamation or duplication of titles; the
ealdorman or earl became the _comes_ or count; the sheriff became the
_vicecomes_; the office in each case receiving the name of that which
corresponded most closely with it in Normandy itself. With the
amalgamation of titles came an importation of new principles and
possibly new functions; for the Norman count and viscount had not
exactly the same customs as the earls and sheriffs. And this ran up into
the highest grades of organization; the King's court of counsellors was
composed of his feudal tenants; the ownership of land was now the
qualification for the witenagemot, instead of wisdom; the earldoms
became fiefs instead of magistracies, and even the bishops had to accept
the status of barons. There was a very certain danger that the mere
change of persons might bring in the whole machinery of hereditary
magistracies, and that king and people might be edged out of the
administration of justice, taxation, and other functions of supreme or
local independence.
Against this it was most important to guard; as the Conqueror learned
from the events of the first year of his reign, when the severe rule of
Odo and William Fitzosbern had provoked Herefordshire. Ralph Guader,
Roger Montgomery, and Hugh of Avranches filled the places of Edwin and
Morcar and the brothers of Harold. But the conspiracy of the earls in
1074 opened William's eyes to the danger of this proceeding, and from
that time onward he governed the provinces through sheriffs immediately
dependent on himself, avoiding the foreign plan of appointing hereditary
counts, as well as the English custom of ruling by viceregal ealdormen.
He was, however, very sparing in giving earldoms at all, and inclined to
confine the title to those who were already counts in Normandy or in
France.
To this plan there were some marked exceptions, which may be accounted
for either on the ground that the arrangements had been completed before
the need of watchfulness was impressed on the King by the treachery of
the Normans, or on that of the exigencies of national defence. In these
cases he created, or suffered the continuance of, great palatine
jurisdictions; earldoms in which the earls were endowed with the
superiority of whole counties, so that all the land-owners held feudally
of them, in which they received the whole profits of the courts and
exercised all the "regalia" or royal rights, nominated the sheriffs,
held their own councils, and acted as independent princes except in the
owing of homage and fealty to the King. Two of these palatinates, the
earldom of Chester and the bishopric of Durham, retained much of their
character to our own days. A third, the palatinate of Bishop Odo in
Kent, if it were really a jurisdiction of the same sort, came to an end
when Odo forfeited the confidence of his brother and nephew. A fourth,
the earldom of Shropshire, which is not commonly counted among the
palatine jurisdictions, but which possessed under the Montgomery earls
all the characteristics of such a dignity, was confiscated after the
treason of Robert of Belesme by Henry I. These had been all founded
before the conspiracy of 1074; they were also, like the later lordships
of the marches, a part of the national defence; Chester and Shropshire
kept the Welsh marches in order, Kent was the frontier exposed to
attacks from Picardy, and Durham, the patrimony of St. Cuthbert, lay as
a sacred boundary between England and Scotland; Northumberland and
Cumberland were still a debatable ground between the two kingdoms.
Chester was held by its earls as freely by the sword as the King held
England by the crown; no lay vassal in the county held of the King, all
of the earl. In Shropshire there were only five lay tenants _in capite_
besides Roger Montgomery; in Kent, Bishop Odo held an enormous
proportion of the manors, but the nature of his jurisdiction is not very
clear, and its duration is too short to make it of much importance. If
William founded any earldoms at all after 1074 (which may be doubted),
he did it on a very different scale.
The hereditary sheriffdoms he did not guard against with equal care. The
Norman viscounties were hereditary, and there was some risk that the
English ones would become so too; and with the worst consequences, for
the English counties were much larger than the bailiwicks of the Norman
viscount, and the authority of the sheriff, when he was relieved from
the company of the ealdorman, and was soon to lose that of the bishop,
would have no check except the direct control of the King. If William
perceived this, it was too late to prevent it entirely; some of the
sheriffdoms became hereditary, and continued to be so long after the
abuse had become constitutionally dangerous.
The independence of the greater feudatories was still further limited by
the principle, which the Conqueror seems to have observed, of avoiding
the accumulation in any one hand of a great number of contiguous
estates. The rule is not without some important exceptions, and it may
have been suggested by the diversity of occasions on which the fiefs
were bestowed, but the result is one which William must have foreseen.
An insubordinate baron whose strength lay in twelve different counties
would have to rouse the suspicions and perhaps to defy the arms of
twelve powerful sheriffs, before he could draw his forces to a head. In
his manorial courts, scattered and unconnected, he could set up no
central tribunal, nor even force a new custom upon his tenants, nor
could he attempt oppression on any extensive scale. By such limitation
the people were protected and the central power secured.