"Statuimus etiam ut omnes LIBERI HOMINES foedere et sacramento affirment
quod intra et extra univereum regnum Anglise (quod olim vocabatur regnum
Britanniae) Wilhielmo suo domino fideles ease volunt, terras et honores
ilius fidelitate ubique servare cum eo et contra inimicos et alienigenas
defendere."
Charter from Textus Roffensis, given by Mr. Stubbs.
"Statuimus etiam ut omnis liber homo feodere et sacramento affirmet,
quod intra et extra Angliam. Willelmo regi fideles ease volunt, terras
et honorem illius omni fidelitate cum eo servare et ante eum contra
inimicos defendere."
I think the documents I have quoted show that Sir Martin Wright, Sir
William Blackstone, and Messrs. Hallam and FREEMAN, labored under a
mistake in supposing that William had introduced or imposed a new feudal
law, or that the vassals of a lord swore allegiance to the king. The
introduction to the laws of William I. shows that it was not a new
enactment, or a Norman custom introduced into England, and the law
itself proves that it relates to FREEMEN, and not to vassals.
The misapprehension of these authors may have arisen in this way:
William I. had two distinct sets of subjects. The NORMANS, who had
taken the oath of allegiance on obtaining investiture, and whose
retinue included vassals; and the ANGLO-SAXONS, among whom vassalage was
unknown, who were FREEMAN (LIBERI HOMINES) as distinguished from serfs.
The former comprised those in possesion of Odhal (noble) land, whether
held from the crown or its tenants. It was quite unnecessary to convoke
the Normans and their vassals, while the assemblage of the Saxons--OMNES
LIBERI HOMINES--was not only to conformity with the laws of Edward
the Confessor, but was specially needful when a foreigner had possesed
himself of the throne.
I have perhaps dwelt to long upon this point, but the error to which I
have referred has been adopted as if it was an unquestioned fact, and
has passed into our school-books and become part of the education given
to the young, and therefore it required some examination.
I believe that a very large portion of the land in England did not
change hands at that period, nor was the position of either SERFS
or VILLEINS changed. The great alteration lay in the increase in the
quantity of BOC-LAND. Much of the FOLC-LAND was forfeited and seized
upon, and as the king claimed the right to give it away, it was called
TERRA REGIS. The charter granted by King William to Alan Fergent, Duke
of Bretagne, of the lands and towns, and the rest of the inheritance of
Edwin, Earl of Yorkshire, runs thus:
"Ego Guilielmus cognomine Bastardus, Rex Anglise do et concede tibi
nepoti meo Alano Brittanias Comiti et hseredibus tuis imperpetuum omnes
villas et terras qua nuper fuerent Comitis Edwini in Eborashina cum
feodis militise et aliis libertatibus et consuetudinibus ita libere et
honorifice sicut idem Edwinus eadem tenuit.
"Data obsidione coram civitate Eboraci."
This charter does not create a different title, but gives the lands as
held by the former possessor. The monarch assumed the function of the
fole-gemot, but the principle remained--the feudee only became tenant
for life. Each estate reverted to the Crown on the death of him who held
it; but, previous to acquiring possession, the new tenant had to cease
to be his own "man," and became the "man" of his superior. This act was
called "homage," and was followed by "investiture." In A.D. 1175, Prince
Henry refused to trust himself with his father till his homage had been
renewed and accepted, for it bound the superior to protect the inferior.
The process is thus described by De Lolme (chap, ii., sec. 1):
"On the death of the ancestor, lands holden by 'knight's service' and
by 'grand sergeantcy' were, upon inquisition finding the tenure and
the death of the ancestor, seized into the king's hands. If the heir
appeared by the inquisition to be within the age of twenty-one
years, the King retained the lands till the heir attained the age of
twenty-one, for his own profit, maintaining and educating the heir
according to his rank. If the heir appeared by the inquisition to have
attained twenty-one, he was entitled to demand livery of the lands by
the king's officers on paying a relief and doing fealty and homage. The
minor heir attaining twenty-one, and proving his age, was entitled to
livery of his lands, on doing fealty and homage, without paying any
relief."
The idea involved is, that the lands Were HELD, and NOT OWNED, and that
the proprietary right lay in the nation, as represented by the king.
If we adopt the poetic idea of the Brehon code, that "land is perpetual
man," then HOMAGE for land was not a degrading institution. But it is
repugnant to our ideas to think that any man can, on any ground, or for
any consideration, part with his manhood, and become by homage the "man"
of another.
The Norman chieftains claimed to be peers of the monarch, and to sit in
the councils of the nation, as barons-by-tenure and not by patent.
This was a decided innovation upon the usages of the Anglo-Saxons, and
ultimately converted the Parliament, the FOLC-GEMOT, into two branches.
Those who accompanied the king stood in the same position as the
companions of Romulus, they were the PATRICIANS; those subsequently
called to the councils of the sovereign by patent corresponded with
the Roman NOBILES. No such patents were issued by any of the Norman
monarchs. But the insolence of the Norman nobles led to the attempt made
by the successors of the Conqueror to revive the Saxon earldoms as a
counterpoise. The weakness of Stephen enabled the greater fudges to
fortify their castles, and they set up claims against the Crown, which
aggravated the discord that arose in subsequent reigns.
The "Saxon Chronicles," p. 238, thus describes the oppressions of the
nobles, and the state of England in the reign of Stephen:
"They grievously oppressed the poor people with building castles, and
when they were built, filled them with wicked men, or rather devils, who
seized both men and women who they imagined had any money, threw them
into prison, and put them to more cruel tortures than the martyrs ever
endured; they suffocated some in mud, and suspended others by the feet,
or the head, or the thumbs, kindling fires below them. They squeezed the
heads of some with knotted cords till they pierced their brains, while
they threw others into dungeons swarming with serpents, snakes, and
toads."
The nation was mapped out, and the owners' names inscribed in the
Doomsday Book. There were no unoccupied lands, and had the possessors
been loyal and prudent, the sovereign would have had no lands, save his
own private domains, to give away, nor would the industrious have been
able to become tenants-in-fee. The alterations which have taken place in
the possession of land since the composition of the Book of Doom, have
been owing to the disloyalty or extravagance of the descendants of those
then found in possession.
Notwithstanding the vast loss of life in the contests following upon the
invasion, the population of England increased from 2,150,000 in 1066,
when William landed, to 3,350,000 in 1152, when the great-grandson of
the Conqueror ascended the throne, and the first of the Plantagenets
ruled in England.