his tenants-in-chief should hold law-courts, which the tenant or the
sub-tenants should be bound to attend to have their cases tried according
to statute rules. But the system was only imperfectly carried out, and the
fact that the tenant-in-chief, or feudal lord, had the right to levy taxes
(called "tallage" or "tailles") on his vassels, speedily led to all sorts
of tyranny and abuse. Still, the feudal courts could not engross the
legislation for the excellent reason that the quick-witted Conqueror had
preserved the Witanagenot and the courts of the shire and the hundred to
check the barons. The latter made a big effort to introduce the
Continental system of feudalism, by which each of them would have been
supreme in his domain; but the plans were defeated as we have seen.
William's successors were men of a different stamp, and the system proved
unworkable in the hands of weaker men. "The prince," says Hume, "finding
that greater opposition was often made to him when he enforced the laws
than when he violated them, was apt to render his own will and pleasure
the sole rule of government, and on every emergency to consider the power
of the persons whom he might offend rather than the rights of those whom
he might injure." The mischievous course pleased none, and the royal
prerogative was at last systematically assailed by the barons in the time
of John, and the Magna Charta wrestled from him. The concessions then made
were of benefit to the barons rather than to the landless and dependent
classes, and it remained for the third Edward to diminish their power and
increase the liberties of the populace.
Law in England during all this period was chiefly a system of oppression,
proceeding stage by stage from the highest to the lowest. The revenues of
the crown were obtained by extravagant rents, forfeits, taxes, reliefs,
fines, aids, and other devices which show the amazing ingenuity of the
extortioners. The result was that most tyrannical exactions were made in
turn by the feudal lords, and the dependents groaned for six centuries
under these lawless yet legalised oppressions. Personal property was at
the mercy of the lords, who adopted the most cruel means to enforce their
"rights." They, in turn, could be the victim of extortions, as was proved
in the case of Roger of Dudley, who was summoned to receive the honour of
knighthood in 1233. He found the honour so expensive that he declined to
appear, whereupon a writ was issued--"Because Roger de Someri, at the
feast of Pentecost last past, has not appeared before the King to be
girded with the military girdle, the Sheriff of Worcestershire is hereby
commanded to seize on the house of Dudley and all other lands of the said
Roger within his jurisdiction, for the King's use; and to keep them with
all the cattle found upon them, so that nothing may be moved off without
the King's permission." The same Roger had a twelve years' dispute with
William de Birmingham touching the service due for the manor of
Birmingham, for which the latter was required to perform the service of
eight knights' fees, a half and a fourth part, and also to do suit to the
court at Dudley once every three weeks. In such wise did these cheftains
rule. Another curious piece of law relating to the Dudley lands is told by
Leland:--"The lorde Powis, grauntfather that is now, being in a
controversy for asawte made upon hym goying to London by the lord Dudeley,
Dudeley castelle condesended by entreaty, that his son and heir should
mary the olde lorde of Dudleis' daughter." A very amiable method of
atoning for personal violence.
The feudal lord had absolute power over his own family, as well as over
his dependents, the laws of household government being entirely of his
own devising and prompted by his passion, his ignorance, and his
wickedness. Robert de Belesme, Earl of Shropshire and of Arundel and
Shrewsbury, one of the most powerful and defiant barons of Norman times,
tore out the eyes of his own children when they had, in sport, hidden
their faces beneath his cloak. He cast his wife in a dungeon, heavily
fettered; but every night he sent his servants to drag her to his bed, and
in the morning sent her back to her prison. This torture he inflicted upon
her to gain money from her family. He disdained to allow his captives in
war to be ransomed, but impaled them, men and women, upon stakes. His
friends were terrified to approach him, for by way of pleasantry he would
engage them in merry chat and suddenly plunge his sword into their sides
with a loud laugh. No law could touch this man, and no avenger arose to
overcome him. The Warden of the Welsh and English Marches made also his
own laws, which were conceived in a spirit of the utmost cruelty. Border
foragers, for example, were cast into a dungeon, and subjected to the
punishment of having their right hands chopped off with the axe. This
prescribed penalty was often aggravated by additional torture or death.
Feudalism was deep-rooted, so deep-rooted that not the enactments of all
the Normans and Plantagenets could do more than check its growth and
gradually ameliorate its severities. But while some of the old customs
were abolished, the bulk of the laws remained based upon the Anglo-Saxon
customs, so that as one writer has tersely explained, "the Land Laws and
Game Laws are derived from the Normans, the Common Law from the
Anglo-Saxons, and almost all our Statute Laws breathe the spirit of
pre-Norman England." To this Macaulay refers with ill-disguised scorn in
his History: "Our laws and customs have never been lost in general
irreparable ruin. With us the proceedings of the Middle Ages are still
valid precedents, and are still cited on the gravest occasions by the most
eminent statesmen.... Thus in our country the dearest interests of parties
have been staked on the results of the researches of antiquaries." The
historian, however, does admit that there is compensation for the
anomalies which result from this polity. "Other societies possess written
constitutions more symmetrical. But no other society has yet succeeded in
uniting revolution with prescription, progress with stability, the energy
of youth with the majesty of immemorial antiquity." That the spirit of
olden feudalism should sometimes be found surviving in modern laws is
inevitable. Villenage is extinguished, and yet in the very character of
certain classes, as well as in the operation of certain laws affecting
lands and personal privileges, we see a direct connection between the
submission of the bondman in the past to his hereditary master and the
readiness of the poor in the present to yield to one in higher station.
What struck the philosophic Emerson most, on his visit to England, was
that Englishmen should maintain their old customs, repeat the ceremonies
of the eleventh century, and consider in so many things that "antiquity of
usage is sanction enough." "The Middle Ages," he said, "still lurk in the
streets of London."
The stocks and the whipping-post, which stood in front of every castle,
were the commonest instruments in use for the punishment of the ceorl and
villein who displeased their masters. For the ceorl, who could not quit
the land on which he was born, or free himself from slavery, life was
particularly hard. He could not absolve himself by money payments, like
the rest of his fellow-men, if once he gave offence; while the majority
could rob and murder and escape with a fine, the ceorl's slightest defect,
real or imagined, was punished with merciless rigour. Tithings and the
process of compurgation came to the assistance of other criminals, but the
ceorl could appeal to none, and expect neither pity nor aid. Such facts
give point to Emerson's dictum that "Castles are proud things, but 'tis
safest to be outside them." The villein was in a much happier state than
the ceorl. He was free against everybody except his lord, and the criminal
code accorded him the same privileges as a free man. The lord was even
liable to punishment for killing or mutilating his villein, and the
_Mirror of Justice_ in the thirteenth century laid down the fact that "the
villein is no serf in any sense of the word; he is a free man; his land is
a free tenure." But all this is largely comparative, and our estimate of
the advantages enjoyed by the villein must depend upon whether we view it
by the standards of the time, or by modern standards. At all events, while
the ceorl tasted all the bitterness of his serfdom, the adjudged felon in
other stations was able to obtain much leniency. The common form of oath
or abjuration in King Edward's time was this: "This heare, thou Sir
Coroner, that I am a robber and a murderer, and a fellow of our Lord the
King of England; and because I have done many such evils in his lande I do
abjure the lande of our Lord Edward, and I shall haste me towards the port
of ----, which thou hast given me, and that I shall not goe out of the
highway, and if I doe, I will that I be taken as a robber and a felon. And
that at such a place I will diligentlie seeke for passage, and I will
tarrie there but one ebbe and flood, if I can have passage; and unlesse I
can have it in such a place I will goe every day into the sea up to my
knees, assaying to pass over; and unlesse I can do this within fortie days
I will put myselfe again into the Church as a robber and a felon, so God
me helpe and his holy judgment." But King Richard showed no disposition to
put so much trust in the honour of these gentry, and when setting out for
Palestine, he made a law against peculating sailors, which was calculated
to dismay them: "Whosoever is convicted of theft shall have his head
shaved, melted pitch poured upon it, and the feathers from a pillow shaken
over it, that he may be known; and shall be put on shore on the first
land which the ship touches." This punishment reminds us of a modern
American institution.
The law of "Englishry" deserves a passing note. It dates back to the time
of Canute, and was continued by the Normans. When Canute sent away the
greater portion of his Danish troops, "the Witan pledged themselves that
the rest should be safe in life and limb, and that any Englishman who
killed any of them should suffer punishment. If the murderer could not be
discovered, the township or hundred was fined." The proud and tyrannical
Normans used this law to their own advantage. A mere Englishman being a
vassal, and of no importance, could be killed with impunity, but it was
ordained that when a man was found killed, and evidence was not brought to
prove that he was English, he should be held to be a Frenchman, so that a
penalty could be imposed upon the township. This law of "Englishry" is
often illustrated in old chronicles. Men were found murdered by the
roadside, on heaths, and in woods; the chronicles state that "no Englishry
was proved," and the towns were accordingly amerced. The "Frankpledge" was
not so feudal in character, though it was based upon the principle that
"every landless man shall have a lord who shall answer for his appearance
in the courts of law." The custom prevailed before the Conquest, ten men
forming a "tithing," the members of which were answerable each for others.
The present Court Leet is a survival of the system, though in a very
modified form.
The feudalism which the Norman barons imposed upon Scotland, and which was
unchecked by King William, so that it reproduced all the evils of the
ferocious Continental system, was marked by terrible excesses. No
institution was more shameful and abhorrent, or so vividly reveals the
baseness to which unrestricted feudalism sank, than the horrible depravity
of maiden-rights, or _droits de seigneur_. Beaumont and Fletcher founded
upon the historic incidents their drama of "The Custom of the Country,"
and though a few mild attempts have been made to throw doubt upon the
facts, there is no question that these domestic tyrannies spread rapidly
from Scotland to France and Germany, and took numerous odious forms. Isaac
Disraeli, in his "Curiosities," devotes a chapter to the subject, which
can scarcely be dealt with in detail in a work appealing to the general
reader. The shameful institution was abolished by Malcolm III., who,
however, put the matter upon a business basis by ordering that it should
be redeemed by a quit-rent. But the lord still considered himself
privileged to manifest his authority over his vassals by thrusting his
booted leg into the bed of a newly-married couple, or by sousing the
bridegroom in a river. The wardships enjoyed by the feudal lords were
equally absurd, one of their favourite methods of raising money being to
arrange an unsuitable marriage, and on the refusal of the persons to carry
out the contract, to claim the revenue of the wards' estate as "forfeit."
The feudal lord could sell his vassals as he did his animals, and they
were often bartered away with fields and houses. The value of a serf was
roughly apprised as four times that of an ox, and he could also be used as
"live money."
Mr. Ruskin, in his third letter in "Fors Clavigera," gives an account of
the laws promulgated by King Richard, Coeur de Lion, whom he declared to
be the truest representative of the British "Squire," under all the
significances of that name. The ideal lord was an admixture of the
patriarch and the tyrant, and if we examine Richard's legislation, and
endeavour to recognise the objects he had in view, we see that with a
considerable amount of selfishness he also possessed a real wish to add to
the welfare of his people. He simplified and adjusted the weights and
measures of the country to put an end to cheating, and he took severe
measures "to prevent the extortions of the Jews." If the people would be
honest, he was quite willing to do the fighting for them; if they made
good cloth, he was ready to see that they got good pay; and when they
bought and sold, he was determined that each should give the other good
measure. But with much power comes caprice, and the feudal lords too soon
forgot the interests of their dependents in serving their own ends. The
English barons never made the formal claim of the German barons to rob on
the highways in their own territories, though, without asserting the
right, they frequently performed the act. A case in point is that of
William de Birmingham, who so late as the sixteenth century went out with
a hundred men to molest and rob travellers on foot. The ordinary laws were
unequal to calling them to account for these misdeeds; nothing but
conquest by battle could have checked them. Besides, there were Lord
Palatines whose rule in their own domains was equal to that of the
sovereigns, and they could make or abrogate laws at will. These kings _in
petto_ appointed their own judges and courts, could reverse sentences,
pardon at will for any crime, and indict at pleasure. Offences committed
in the County Palatine were said to be "against the peace" of the lord,
and not against the peace of the king, and it was with a rod of iron that
these despots governed the territory allotted to them. Still there was a
show of legality in this. It differed from the wanton caprice of Geoffrey
of Coventry, who oppressed the inhabitants, was amenable to no law for so
doing, but consented to remit the burdensome taxes if his wife would ride
naked through the streets. As a specimen of the barbarous humour of these
lords, the Godiva story is instructive.
At the end of King Stephen's troublous reign, there were eleven hundred
and fifteen castles in England, each of them a centre of power, at that
particular time almost absolute. The wise provisions of the Conqueror had
to some extent been overcome, and the feudal lords had become so
unmanageable that Henry II. found himself compelled to stipulate for the
destruction of a number of the strongholds. At the same time he prevented
the erection of others except by royal licence, and so began to limit the
oppression which had prevailed. We find, too, that in consequence of the
frequent over-riding of the common law by men in authority, the monarch
reserved to himself more and more of sovereign power, "by which," says Sir
Robert Filmer in his famous "Patriarcha"--answered by John Locke in the
still more famous treatises on Civil Government--"he did supply the want
or correct the rigour of the common law, because the positive law, being
grounded upon that which happens for the most part, cannot forsee every
particular which time and experience bring forth. Already sundry things do
fall out," he continues later, "both in war and peace, that require
extraordinary help ... so that rare matters do grow up meet to be referred
to the absolute authority of the prince." We find such a case in the time
of Richard II., when, on a question of freehold, the appeal went direct to
the king because "of maintenance, oppression, or other outrages the common
law cannot have duly her course."
How the lords could avoid and defy the common law is proved by two curious
instances in the history of the Dudleys, the family previously referred
to. Lord Edward Dudley, in 1592, had a dispute with the neighbouring
Lyttelton family, and raising some 150 persons, he went one night and
stole all the cattle on the latter's estate. Lyttelton obtained judgment
against Dudley, who was ordered to return the cattle, but he posted his
servants at the gates, and bade them cut the bailiffs to pieces. Lyttelton
then armed sixty men and took the cattle back by force; Dudley armed 700
men to fetch them back and kill them. For this offence the nobleman and
eighty followers were indicted, but by one means and another the
proceedings were made to last four years, and then an agreement was
entered into by the parties. Lord Edward's son, Ferdinando, was the hero
of the next exploit. He purchased the property of an oppressed widow,
named Martha Grovenor, for L1200, but only paid L100. She sued him in the
Exchequer for the remainder, and obtained judgment for the balance. No
notice was taken of this. The following year the widow obtained a second
decree, and this again was ignored. His lordship was next called upon for
costs, and this led him to make an effort to compromise the matter. He
entered into an agreement to pay all arrears and costs, but, having done
so much, refused to fulfil his obligations. An execution of ejectment was
then levied against his lordship. This he avoided for nine years, and it
was only twelve years after negotiations had begun that the widow was able
to obtain her dues.
A very brief glance at Continental feudalism and its influence upon
statute law may now be given. It enables us to mark some of the
differences between the English and the foreign systems, the one with its
restrictions and the other all-powerful. In the eleventh century, all
France and the German Empire were one vast feudal possession. The powers
of the lords have been classed by the historian Hallam as follows--First,
the right of coining money; second, that of waging private war; third,
exemption from all public tributes except the feudal aids; fourth, freedom
from legislative control; and fifth, the exclusive exercise of original
judicature in their dominions. It is easy to perceive how, with these
initial powers conceded, the seigneurs were enabled to make themselves the
veritable masters of the kingdom. In Germany the lawlessness of the
barons became as proverbial as did their cruelty towards their slaves. The
whole country was divided up into territories over which the feudal chiefs
reigned as absolute and despotic kings. Nor is the spirit of feudalism in
that country yet extinct, for, unlike France, it has not had its bloody
revolt against "aristocrats." No one can have travelled in Germany and
seen the castle towering high on crag or rock, and the diminutive houses
scattered about its base, without realising at a glance how the chieftains
and their serfs lived in the old days. In Germany the feudal system was
seen at its strongest and its worst, and law was paralysed while the men
of lust and blood were supreme in their own dominions. Austria has a
similar story to tell of barbarity towards serfs, and the abrogation of
law by powerful chieftains. But it is remarkable that in Russia, where the
feudal spirit still most strongly survives, and is marked by many excesses
utterly repugnant to the feeling and customs of the times, the earliest
attempts to establish a feudal system were quelled by the princes. In this
land, where a mistress might, until recently, have her maid whipped to
death for dropping a teacup, or for any other trivial offence, real or
imagined, where again it was taken for granted that
"A Count carbonadoes
His ignorant serfs with the knout,"
feudalism, once instituted, deepened its hold with the progress of years.
While there was no law for the lower classes, save that dictated by the
caprice of their masters, there were special exemptions and priveleges for
the noble and wealthy. The Russian lords pay no taxes, and they retain, in
almost undiminished force, that power to abuse, insult, and destroy the
peasantry which was possessed by the _ancienne noblesse_ of France before
the Revolution. Mr. Morley Roberts, in one of his Russian historical
sketches, relates that not long ago a noble threw a Hebrew into a dungeon
for an offence, and a week later asked his jaeger what had become of him.
"Oh," said the fellow with a laugh, "he made so much noise that I shot
him."
The state of Bohemia from the ninth to the fourteenth century shows to
what deplorable depths a race may sink under an unrestrained and
licentious feudalism. The Bohemian nobles practically abolished the
marriage laws, and in addition to oppressing their dependents, frequently
sold them into slavery. When St. Adalbert endeavoured to effect a
reformation, he found every impediment put in his way, and his wishes
openly defied. He had a horror of bloodshed, and preached the hatefulness
of murder. By way of response, a man, whose wife had been put in a nunnery
to save her from his brutality, was dragged out and butchered in the
streets. Adalbert had to wait long before he could influence these men
who, secure in their castles, could indulge their rapacity without fear of
punishment. Reforms, effected in the tenth century, however, were not
permanent, and in the twelfth century the nobles had succeeded in
converting the local assembly, with its power of appointing judges, to
their own uses. Mr. Edmund Maurice, in his history of Bohemia, relates
that the nobles began to secure the judgeships for themselves, and then
sold or bequeathed the offices to heirs. They thus made the appointments a
means of tyranny and a source of profit, and with the money acquired
purchased the lands of freemen. Others, owing to the unpopularity of the
local tribunals, strengthened the power of their own feudal courts, and
again reduced their dependents to abject slavery.
"The coolness," says Mr. Maurice, "with which many of the grants of land
transferred workmen of various kinds as mere appendages of fields and
fishponds, is in itself a proof of the degraded position to which the
peasant class had been reduced; and the fact that military service seemed
one of the few means of escaping from serfdom, led the peasants to favour
those wars which in the end increased their misery." Eventually King
Wenceslas, famed in ballad, and still more famed in Bohemian history, came
to the rescue, and ordained "that no baron or noble of the land shall have
power in the city of Bruenn, or shall do any violence in it, or shall
detain anyone, without the license and proclamation of the judge of the
city."
The wide survey we have taken enables a fair estimate to be made of the
state of the law in Europe when the castle was the court of justice, and
the baron was the judge. England alone of all Europeon countries seems to
have been able to place a check upon the more flagrant abuses, and in
later times of reform to have succeeded, while abolishing what was
essentially evil in the system, in retaining whatever of it was of worth.
Whether there be still laws too deeply impressed with feudal ideas for
modern acceptance is a question for legislators to consider.
The Manor and Manor Law.
BY ENGLAND HOWLETT.