877, the last of his reign. It was then enacted, that beneficiary
estates held under the crown should descend to the sons of the present
possessors: yet not, as I conceive, to the eldest son; but to him whom
the emperor should chuse; nor did this law affect the estates only, but
_offices_, which had hitherto been also beneficiary; and so the sons of
counts, marquises, _&c._ (which were all names of offices, not titles
of honour) were to succeed to the authority of their fathers, and to
the benefice annexed to it. The new feuds, created in allodial lands,
had, I suppose, made the emperor’s tenants desirous of holding on the
same terms; and the weakness of the reigning prince enabled them to
succeed in this first step, which prepared the way for a revolution of
still more importance. For,
The THIRD change, by which the inheritance of beneficiary lands and
offices was extended to perpetuity, and the possession rendered
almost independent of the crown, was not, we may be sure, effected at
once, but by degrees. The family of CHARLEMAGNE lost the empire: they
resisted with great difficulty the incursions of the _Normans_; and,
in the year 911, _Normandy_ was granted to them as an hereditary fee.
The great lords made their advantage of the public calamities; they
defended the king on what terms they pleased; if not complied with
in their demands, they refused their assistance in the most critical
conjunctures: and before the accession of HUGH CAPET, had entirely
shaken off their dependence on the crown. For it is, I think, a vulgar
mistake to say, that this great revolution was the effect of HUGH’S
policy. On the contrary, the independence of the nobles, already
acquired, was, as it seems to me, the cause of his success. The prince
had no authority left, but over his own demesnes; which were less
considerable than the possessions of some of his nobles. HUGH had one
of the largest fiefs: and for this reason, his usurpation added to the
power of the crown, instead of lessening it, as is commonly imagined.
But to bring back the feuds of the other nobles to their former
precarious condition was a thing impossible: his authority was partly
supported by superior wisdom, and partly by superior strength, his
vassals being more numerous than those of any other lord.
I cannot tell if these foreigners, when they adopted the feudal plan,
were immediately aware of all the consequences of it. An hereditary
tenure was, doubtless, a prodigious acquisition; yet the advantage
was something counter-balanced by the great number of impositions
which the nature of the change brought with it. These impositions
are what, in respect of the lord, are called his FRUITS of tenure;
such as WARDSHIP, MARRIAGE, RELIEF, and other services: and were
the necessary consequence of the king’s parting with his arbitrary
disposal of these tenures. For now that the right of inheritance was
in the tenant, it seemed but reasonable, and, without this provision,
the feudal policy could not have obtained its end, that the prince,
in these several ways, should secure to himself the honour, safety,
and defence, which the very nature of the constitution implied and
intended. Hence hereditary feuds were very reasonably clogged with the
obligations. I have mentioned; which, though trifling in comparison
with the disadvantages of a precarious tenure, were yet at least some
check on the independency acquired. However, these services, which were
due to the king under the new model, were also due to the tenant in
chief from those who held of him by the like tenure. And so the barons,
or great proprietaries of land, considering more perhaps the subjection
of their own vassals, than that by which themselves were bound to their
sovereign, reckoned these burdens as nothing, with respect to what they
had gained by an hereditary succession.
The example of these _French_ feudataries, we may suppose, would be
catching. We accordingly find it followed, in due time, in _Germany_;
where CONRAD II.[121] granted the like privilege of _successive_
tenures, and at the pressing instance of his tenants.
I thought it material to remind you of these things; because they prove
the feudal institution on the continent to have been favourable to the
cause of liberty; and because it will abate our wonder to find it so
readily accepted and submitted to here in _England_.
MR. SOMERS.
The account you have given, and, I dare say, very truly, of the origin
of feuds in _France_ and _Germany_, is such as shews them to have
been an extension of the people’s liberty. There is no question that
hereditary alienable estates have vastly the preference to beneficiary.
But the case, I suspect, was different with us in _England_. The great
offices of state, indeed, in this country, as well as in _France_, were
beneficiary. But, if I do not mistake, the lands of the _English_,
except only the church-lands, were all allodial. And I cannot think it
could be for the benefit of the _English_ to change their old _Saxon_
possessions, subject only to the famous triple obligation, for these
new and burdensome tenures.
SIR J. MAYNARD.
Strange as it may appear, we have yet seen that the _French_ did not
scruple to make that exchange even of their allodial estates. But to
be fair, there was a great difference, as you well observe, in the
circumstances of the two people. All the lands in _England_ were, I
believe, allodial, in the _Saxon_ times: while a very considerable
proportion of those in _France_ were beneficiary.
Another difference, also, in the state of the two countries, is worth
observing. In _France_, the allodial lands (though considerable in
quantity) were divided into small portions. In _England_, they seem
to have been in few hands; the greater part possessed by the King
and his _Thanes_; some smaller parcels by the lesser _Thanes_; and a
very little by the _Ceorles_. The consequence was, that, though the
allodial proprietors in _France_ were glad to renounce their property
for tenure, in order to secure the protection they much wanted; yet
with us, as you say, there could not be any such inducement for the
innovation. For, the lands being possessed in large portions by the
nobility and gentry, the allodial lords in _England_ were too great to
stand in need of protection. Yet from this very circumstance, fairly
attended to, we shall see that the introduction of the feudal tenures
was neither difficult nor unpopular. The great proprietors of land
were, indeed, too free and powerful, to be bettered by this change. But
their tenants, that is, the bulk of the people, would be gainers by it.
For these tenants were, I believe, to a man beneficiaries. The large
estates of the _Thanes_ were granted out in small portions to others,
either for certain quantities of corn or rent, reserved to the lord,
or on condition of stipulated services. And these grants, of whichever
sort they were, were either at pleasure, or at most for a limited term.
So that, though the proprietors of land in _England_ were so much
superior to those in _France_; yet the tenants of each were much in the
same state; that is, they possessed beneficiary lands on stipulated
conditions.
When, therefore, by right of forfeiture, the greater part of the lands
in _England_ fell, as they of course would do, into the power of the
king (for they were in few hands, and those few had either fought at
_Hastings_, or afterwards rebelled against him), it is easy to see
that the people would not be displeased to find themselves, instead of
beneficiary tenants[122], feudatary proprietors.
I say this on supposition that these great forfeited estates and
signiories, so bountifully bestowed by the Conqueror on his favourite
_Normans_, were afterwards, many of them at least, granted out in
smaller parcels to _English_ sub-tenants. But if these sub-tenants
were also _Normans_ (though the case of the _English_ or old _Saxon_
freeholders was then very hard), the change of allodial into feudatary
estates is the more easily accounted for.
The main difficulty would be with the churchmen; who (though the
greatest, and most of them were, perhaps, _Normans_ too) were well
acquainted with the _Saxon_ laws, and for special reasons were much
devoted to them. They were sensible that their possessions had been
held, in the _Saxon_ times, in FRANC-ALMOIGN: a sort of tenure, they
were not forward to give up for this of _feuds_. ’Tis true, the burdens
of these tenures would, many of them, not affect them. But then neither
could they reap the principal fruit of them, the fruit of inheritance.
They, besides, considered every restraint on their privileges as
impious; and took the subjection of the ecclesiastic to the secular
power, which the feudal establishment was to introduce, for the vilest
of all servitudes. Hence the churchmen were, of all others, the most
averse from this law[123]. And their opposition might have given the
Conqueror still more trouble, if the suppression of the great Northern
rebellion had not furnished him with the power, and (as many of them
had been deeply engaged in it) with the pretence, to force it upon
them. And thus, in the end, it prevailed universally, and without
exception.
I would not go further into the history of these tenures. It may appear
from the little I have said of them, that the feudal system was rather
improved and corrected by the duke of NORMANDY, than originally planted
by him in this kingdom: that the alteration made in it was favourable
to the public interest; and that our _Saxon_ liberties were not so
properly restrained, as extended by it. It is of little moment to
inquire whether the nation was won, or forced, to a compliance with
this system. It is enough to say, that, as it was accepted by the
nation, so it was in itself no servile establishment, but essentially
founded in the principles of liberty. The duties of lord and feudatary
were reciprocal and acknowledged: services on the one part, and
protection on the other. The institution was plainly calculated for the
joint-interest[124] of both parties, and the benefit of the community;
the proper notion of the feudal system being that “of a confederacy
between a number of military persons, agreeing on a certain limited
subordination and dependence on their chief, for the more effectual
defence of his and their lives, territories, and possessions.”
MR. SOMERS.
I have nothing to object to your account of the feudal constitution.
And I think you do perfectly right, to lay the main stress on the
general nature and genius of it; as by this means you cut off those
fruitless altercations, which have been raised, concerning the personal
character of the _Norman_ Conqueror. Our concern is not with him, but
with the government he established. And if that be free, no matter
whether the founder of it were a tyrant. But, though I approve your
method, I doubt there is some defect in your argument. _Freedom_ is a
term of much latitude. The _Norman_ constitution may be free in one
sense, as it excludes the sole arbitrary dominion of one man; and
yet servile enough in another, as it leaves the government in few
hands. For it follows, from what I understand of the feudal plan, that
though its genius be indeed averse from absolute monarchy, yet it is
indulgent enough to absolute _aristocracy_. And the notion of each is
equally remote from what we conceive of true _English_ liberty.
SIR J. MAYNARD.
It is true, the proper feudal form, especially as established in this
kingdom, was in a high degree oligarchical. It would not otherwise,
perhaps, have suited to the condition of those military ages. Yet the
principles it went upon, were those of public liberty, and generous
enough to give room for the extension of the system itself, when a
change of circumstances should require it.—But your objection will
best be answered by looking a little more distinctly into the nature of
these tenures.
I took notice that the feudal system subjected the CHURCH more
immediately to the civil power: and laid the foundation of many
services and fruits of tenure to which the LAY-FEUDATARIES in the
_Saxon_ times had been altogether strangers. It is probable that
all the consequences of this alteration were not foreseen. Yet the
churchmen were pretty quick-sighted. And the dislike, they had
conceived of the new establishment, was the occasion of those
struggles, which continued so long between the mitre and crown, and
which are so famous more especially in the early parts of our history.
The cause of these ecclesiastics was a bad one. For their aim was, as
is rightly observed by the advocates for the prerogative, to assert an
independency on the state; and for that purpose the pope was made a
party in the dispute; by whose intrigues it was kept up in one shape
or other till the total renunciation of the papal power. Thus far,
however, the feudal constitution cannot be blamed. On the contrary, it
was highly serviceable to the cause of liberty, as tending only to hold
the ecclesiastic, in a due subordination to the civil, authority.
The same thing cannot be said of the other instance, I mean the _fruits
of tenure_, to which the lay-fees were subjected by this system. For
however reasonable, or rather necessary, those _fruits_ might be, in
a feudal sense, and for the end to which the feudal establishment was
directed, yet, as the _measure_ of these fruits, as well as the manner
of exacting them, was in a good degree arbitrary, and too much left to
the discretion of the sovereign, the practice, in this respect, was
soon found by the tenants in chief to be an intolerable grievance.
Hence that other contest, so memorable in our history, betwixt the king
and his barons: in which the former, under the colour of maintaining
his feudal rights, laboured to usurp an absolute dominion over the
persons and properties of his vassals; and the latter, impatient of
the feudal burdens, or rather of the king’s arbitrary exactions under
pretence of them, endeavoured to redeem themselves from so manifest an
oppression.
It is not to be denied, that, in the heat of this contest, the barons
sometimes carried their pretensions still further, and laboured in
their turn to usurp on the crown, in revenge for the oppressions
they had felt from it. However, their first contentions were only
for a mitigation of the feudal system. It was not the character of
the _Norman_ princes to come easily into any project that was likely
to give the least check to their pretensions. Yet the grievances,
complained of, were in part removed, in part moderated, by HENRY the
First’s and many other successive charters: though the last blow was
not given to these feudal servitudes till after the Restoration, when
such of them as remained, and were found prejudicial to the liberty of
the subject, were finally abolished.
Thus we see that ONE essential defect in the feudal policy, considered
not as a military, but civil institution, was, the too great power
it gave the sovereign in the arbitrary impositions, implied in this
tenure. ANOTHER was accidental. It arose from the disproportionate
allotment of those feuds, which gave the greater barons an ascendant
over the prince, and was equally unfavourable to the cause of liberty.
For the bounty of the duke of NORMANDY, in his distribution of the
forfeited estates and signiories to his principal officers, had been so
immense[125], that their share of influence in the state was excessive,
and intrenched too much on the independency of the crown and the
freedom of the people. And this undue poize in the constitution, as
well as the tyranny of our kings, occasioned the long continuance of
those civil wars, which for many ages harrassed and distressed the
nation. The evil, however, in the end, brought on its own remedy. For
these princely houses being much weakened in the course of the quarrel,
HENRY VII. succeeded, at length, to the peaceable possession of the
crown. And by the policy of this prince, and that of his successor,
the barons were brought so low as to be quite disabled from giving any
disturbance to the crown for the future.
It appears then that TWO great defects in the feudal plan of
government, as settled amongst us, were, at length, taken away. But a
THIRD, and the greatest defect of all, was the narrowness of the plan
itself, I mean when considered as a system of CIVIL polity; for, in its
primary martial intention, it was perfectly unexceptionable.
To explain this matter, which is of the highest importance, and will
furnish a direct answer to Mr. SOMERS’ objection, we are to remember
that in the old feudal policy the king’s barons, that is, such as
held _in capite_ of the crown by barony or knight’s service, were the
king’s, or rather the kingdom’s, great council. No public concerns
could be regularly transacted, without their consent[126]; though
the lesser barons, or tenants by knight’s service, did not indeed so
constantly appear in the king’s court, as the greater barons; and
though the public business was sometimes even left to the ordinary
attendants on the king, most of them churchmen. It appears that,
towards the end of the Conqueror’s reign, the number of these tenants
in chief was about 700; who, as the whole property of the kingdom was,
in effect, in their power, may be thought a no unfit representative
(though this be no proper _feudal_ idea) of the whole nation. It was
so, perhaps, in those rude and warlike times, when the strength of the
nation lay entirely in the soldiery; that is, in those who held by
military services, either immediately of the crown, or of the mesne
lords. For the remainder of the people, whom they called tenants in
socage, were of small account; being considered only in the light
of servants, and contributing no otherwise to the national support
than by their cultivation of the soil, which left their masters at
leisure to attend with less distraction on their military services.
At least, it was perfectly in the genius of the feudal, that is,
military constitutions, to have little regard for any but the men of
arms; and, as every other occupation would of course be accounted base
and ignoble, it is not to be wondered that such a difference was made
between the condition of _prædial_ and _military_ tenures.
However, a policy, that excluded such numbers from the rank and
privileges of citizens, was so far a defective one. And this defect
would become more sensible every day, in proportion to the growth of
arts, the augmentation of commerce, and the security the nation found
itself in from foreign dangers. The ancient military establishment
would now be thought unjust, when the exclusive privileges of the
swordsmen were no longer supported by the necessities of the public,
and when the wealth of the nation made so great a part of the force of
it. Hence arose an important change in the legislature of the kingdom,
which was much enlarged beyond its former limits. But this was done
gradually; and was more properly an extension than violation of the
ancient system.
First, the number of tenants in chief, or the king’s freeholders, was
much increased by various causes, but chiefly by the alienation which
the greater barons made of their fees. Such alienation, though under
some restraint, seems to have been generally permitted in the _Norman_
feuds; I mean, till MAGNA CHARTA and some subsequent statutes laid it
under particular limitations. But, whether the practice were regular or
not, it certainly prevailed from the earliest times; especially on some
more extraordinary occasions. Thus, when the fashionable madness of the
CROISADES had involved the greater barons in immense debts, in order
to discharge the expences of these expeditions, they alienated their
fees, and even dismembered them; that is, they parted with their right
in them, and made them over in small parcels to others, to hold of the
superior lord. And what these barons did from necessity, the crown
itself did, out of policy: for the _Norman_ princes, growing sensible
of the inconvenience of making their vassals too great, disposed of
such estates of their barons as fell in to them by forfeiture, and were
not a few, in the same manner. The consequence of all this was, that,
in process of time, the lesser military tenants _in capite_ multiplied
exceedingly. And, as many of them were poor, and unequal to a personal
attendance in the court of their lord, or in the common council of the
kingdom (where of right and duty they were to pay their attendance),
they were willing, and it was found convenient to give them leave,
to appear in the way of _representation_. And this was the origin of
what we now call THE KNIGHTS OF THE SHIRES; who, in those times, were
appointed to represent, not all the free-holders of counties, but the
lesser tenants of the crown only. For these not attending in person,
would otherwise have had no place in the king’s council.
The rise of CITIZENS AND BURGESSES, that is, representatives of the
cities and trading towns, must be accounted for somewhat differently.
These had originally been in the jurisdiction, and made part of the
demesnes, of the king and his great lords. The reason of which appears
from what I observed of the genius of the feudal policy. For, little
account being had of any but martial men, and trade being not only
dishonourable, but almost unknown in those ages; the lower people,
who lived together in towns, most of them small and inconsiderable,
were left in a state of subjection to the crown, or some other of the
barons, and exposed to their arbitrary impositions and talliages.
But this condition of burghers, as it sprang from the military genius
of the nation, could only be supported by it. When that declined
therefore, and, instead of a people of soldiers, the commercial spirit
prevailed, and filled our towns with rich traders and merchants, it
was no longer reasonable, nor was it the interest of the crown, that
these communities and bodies of men should be so little regarded. On
the contrary, a large share of the public burdens being laid upon them,
and the frequent necessities of the crown, especially in foreign wars,
or in the king’s contentions with his barons, requiring him to have
recourse to their purses, it was naturally brought about that those, as
well as the tenants _in capite_, should, in time, be admitted to have a
share in the public councils.
I do not stay to trace the steps of this change. It is enough to say,
that arose insensibly and naturally out of the growing wealth and
consequence of the trading towns; the convenience the king found in
drawing considerable sums from them, with greater ease to himself, and
less offence to the people; and, perhaps, from the view of lessening by
their means the exorbitant power and influence of the barons.
From these, or the like reasons, the great towns and cities, that
before were royal demesnes, part of the king’s private patrimony, and
talliable by him at pleasure, were allowed to appear in his council
by their deputies, to treat with him of the proportion of taxes to be
raised on them, and, in a word, to be considered it the same light as
the other members of that great assembly.
I do not inquire when this great alteration was first made. I find it
subsisting at least under EDWARD III. And from that time, there is no
dispute but that the legislature, which was originally composed of the
sovereign and his feudal tenants, included also the representatives of
the counties, and of the royal towns and cities. To speak in our modern
style, the HOUSE OF COMMONS was, now, formed. And by this addition, the
glorious edifice of _English_ liberty was completed.
I am sensible, I must have wearied you with this deduction, which can
be no secret to either of you. But it was of importance to shew, that
the constitution of _England_, as laid in the feudal tenures, was
essentially free; and that the very changes it hath undergone, were the
natural and almost unavoidable effects of those tenures. So that what
the adversaries of liberty object to us, as usurpations on the regal
prerogative, are now seen to be either the proper result of the feudal
establishment, or the most just and necessary amendments of it.
BP. BURNET.