THE HISTORY OF LANDHOLDING IN ENGLAND.
By Joseph Fisher, F.R.H.S.
"Much food is in the tillage of the poor, but there is that is destroyed for want of Judgment."—PROV. 13: 23.
"Of all arts, tillage or agriculture is doubtless the most useful and necessary, as being the source whence the nation derives its subsistence. The cultivation of the soil causes it to produce an infinite increase. It forms the surest resource and the most solid fund of riches and commerce for a nation that enjoys a happy climate.... The cultivation of the soil deserves the attention of the Government, not only on account of the invaluable advantages that flow from it, but from its being an obligation imposed by nature on mankind."—VATTEL.
This work is an expansion of a paper read at the meeting of the Royal Historical Society in May, 1875, and will be published in the volume of the Transactions of that body. But as it is an expensive work, and only accessible to the Fellows of that Society, and as the subject is one which is now engaging a good deal of public consideration, I have thought it desirable to place it within the reach of those who may not have access to the larger and more expensive work.
I am aware that much might be added to the information it contains, and I possess materials which would have more than doubled its size, but I have endeavored to seize upon the salient points, and to express my views as concisely as possible.
I have also preferred giving the exact words of important Acts of Parliament to any description of their objects.
If this little essay adds any information upon a subject of much public interest, and contributes to the just settlement of a very important question, I shall consider my labor has not been in vain.
WATERFORD, November 3, 1875.
I do not propose to enter upon the system of landholding in Scotland or Ireland, which appears to me to bear the stamp of the Celtic origin of the people, and which was preserved in Ireland long after it had disappeared in other European countries formerly inhabited by the Celts. That ancient race may be regarded as the original settlers of a large portion of the European continent, and its land system possesses a remarkable affinity to that of the Slavonic, the Hindoo, and even the New Zealand races. It was originally Patriarchal, and then Tribal, and was communistic in its character.
I do not pretend to great originality in my views. My efforts have been to collect the scattered rays of light, and to bring them to bear upon one interesting topic. The present is the child of the past. The ideas of bygone races affect the practices of living people. We form but parts of a whole; we are influenced by those who preceded us, and we shall influence those who come after us. Men cannot disassociate themselves either from the past or the future.
In looking at this question there is, I think, a vast difference which has not been sufficiently recognized. It is the broad distinction between the system arising out of the original occupation of land, and that proceeding out of the necessities of conquest; perhaps I should add a third—the complex system proceeding from an amalgamation, or from the existence of both systems in the same nation. Some countries have been so repeatedly swept over by the tide of conquest that but little of the aboriginal ideas or systems have survived the flood. Others have submitted to a change of governors and preserved their customary laws; while in some there has been such a fusion of the two systems that we cannot decide which of the ingredients was the older, except by a process of analysis and a comparison of the several products of the alembic with the recognized institutions of the class of original or of invading peoples.
Efforts have been made, and not with very great success, to define the principle which governed the more ancient races with regard to the possession of land. While unoccupied or unappropriated, it was common to every settler. It existed for the use of the whole human race. The process by which that which was common to all became the possession of the individual has not been clearly stated. The earlier settlers were either individuals, families, tribes, or nations. In some cases they were nomadic, and used the natural products without taking possession of the land; in others they occupied districts differently defined. The individual was the unit of the family, the patriarch of the tribe. The commune was formed to afford mutual protection. Each sept or tribe in the early enjoyment of the products of the district it selected was governed by its own customary laws. The cohesion of these tribes into states was a slow process; the adoption of a general system of government still slower. The disintegration of the tribal system, and dissolution of the commune, was not evolved out of the original elements of the system itself, but was the effect of conquest; and, as far as I can discover, the appropriation to individuals of land which was common to all, was mainly brought about by conquest, and was guided by impulse rather than regulated by principle.
Mr. Locke thinks that an individual became sole owner of a part of the common heritage by mixing his labor with the land, in fencing it, making wells, or building; and he illustrates his position by the appropriation of wild animals, which are common to all sportsmen, but become the property of him who captures or kills them. This acute thinker seems to me to have fallen into a mistake by confounding land with labor. The improvements were the property of the man who made them, but it by no means follows that the expenditure of labor on land gave any greater right than to the labor itself or its representative.
It may not be out of place here to allude to the use of the word property with reference to land; property—from proprium, my own—is something pertaining to man. I have a property in myself. I have the right to be free. All that proceeds from myself, my thoughts, my writings, my works, are property; but no man made land, and therefore it is not property. This incorrect application of the word is the more striking in England, where the largest title a man can have is "tenancy in fee," and a tenant holds but does not own.
Sir William Blackstone places the possession of land upon a different principle. He says that, as society became formed, its instinct was to preserve the peace; and as a man who had taken possession of land could not be disturbed without using force, each man continued to enjoy the use of that which he had taken out of the common stock; but, he adds, that right only lasted as long as the man lived. Death put him out of possession, and he could not give to another that which he ceased to possess himself.
Vattel (book i., chap, vii.) tells us that "the whole earth is destined to feed its inhabitants; but this it would be incapable of doing if it were uncultivated. Every nation is then obliged by the law of nature to cultivate the land that has fallen to its share, and it has no right to enlarge its boundaries or have recourse to the assistance of other nations, but in proportion as the land in its possession is incapable of furnishing it with necessaries." He adds (chap. xx.), "When a nation in a body takes possession of a country, everything that is not divided among its members remains common to the whole nation, and is called public property."
An ancient Irish tract, which forms part of the Senchus Mor, and is supposed to be a portion of the Brehon code, and traceable to the time of St. Patrick, speaks of land in a poetically symbolic, but actually realistic manner, and says, "Land is perpetual man." All the ingredients of our physical frame come from the soil. The food we require and enjoy, the clothing which enwraps us, the fire which warms us, all save the vital spark that constitutes life, is of the land, hence it is "perpetual man." Selden ("Titles of Honor," p. 27), when treating of the title "King of Kings," refers to the eastern custom of homage, which consisted not in offering the person, but the elements which composed the person, EARTH and WATER—"the perpetual man" of the Brehons—to the conqueror. He says:
"So that both titles, those of King of Kings and Great King, were common to those emperors of the two first empires; as also (if we believe the story of Judith) that ceremonies of receiving an acknowledgment of regal supremacy (which, by the way, I note here, because it was as homage received by kings in that time from such princes or people as should acknowledge themselves under their subjection) by acceptance upon their demand of EARTH and WATER. This demand is often spoken of as used by the Persian, and a special example of it is in Darius' letters to Induthyr, King of the Scythians, when he first invites him to the field; but if he would not, then bringing to your sovereign as gifts earth and water, come to a parley. And one of Xerxes' ambassadors that came to demand earth and water from the state of Lacedaemon, to satisfy him, was thrust into a well and earth cast upon him."
The earlier races seem to me, either by reasoning or by instinct, to have arrived at the conclusion that every man was, in right of his being, entitled to food; that food was a product of the land, and therefore every man was entitled to the possession of land, otherwise his life depended upon the will of another. The Romans acted on a different principle, which was "the spoil to the victors." He who could not defend and retain his possessions became the slave of the conqueror, all the rights of the vanquished passed to the victor, who took and enjoyed as ample rights to land as those naturally possessed by the aborigines.
The system of landholding varies in different countries, and we cannot discover any idea of abstract right underlying the various differing systems; they are the outcome of law, the will of the sovereign power, which is liable to change with circumstances. The word LAW appears to be used to express two distinct sentiments; one, the will of the sovereign power, which being accompanied with a penalty, bears on its face the idea that it may be broken by the individual who pays the penalty: "Thou shalt not eat of the fruit of the tree, for on the day thou eatest thereof thou shalt die," was a law. All laws, whether emanating from an absolute monarch or from the representatives of the majority of a state, are mere expressions of the will of the sovereign power, which may be exacted by force. The second use of the word LAW is a record of our experience—e.g., we see the tides ebb and flow, and conclude it is done in obedience to the will of a sovereign power; but the word in that sense does not imply any violation or any punishment. A distinction must also be drawn between laws and codes; the former existed before the latter. The lex non scripta prevailed before letters were invented. Every command of the Decalogue was issued, and punishment followed for its breach, before the existence of the engraved tables. The Brehon code, the Justinian code, the Draconian code, were compilations of existing laws; and the same may be said of the common or customary law of England, of France, and of Germany.
I am aware that recent analytical writers have sought to associate LAW with FORCE, and to hold that law is a command, and must have behind it sufficient force to compel submission. These writers find at the outset of their examination, that customary law, the "Lex non scripta," existed before force, and that the nomination to sovereign power was the outcome of the more ancient customary law. These laws appear based upon the idea of common good, and to have been supported by the "posse comitatus" before standing armies or state constabularies were formed. Vattel says (book i., chap. ii.), "It is evident that men form a political society, and submit to laws solely for their own advantage and safety. The sovereign authority is then established only for the common good of all the citizens. The sovereign thus clothed with the public authority, with everything that constitutes the moral personality of the nation, of course becomes bound by the moral obligations of that nation and invested with its rights." It appears evident, that customary law was the will of small communities, when they were sovereign; that the cohesion of such communities was a confirmation of such customs of each, that the election of a monarch or a parliament was a recognition of these customs, and that the moral and material FORCE or power of the sovereign was the outcome of existing laws, and a confirmation thereof. The application of the united force of the nation could be rightfully directed to the requirements of ancient, though unwritten customary law, and it could only be displaced by legislation, in which those concerned took part.
The duty of the sovereign (which in the United Kingdom means the Crown and the two branches of the legislature) with regard to land, is thus described by Vattel:
"Of all arts, tillage or agriculture is doubtless the most useful and necessary, as being the source whence the nation derives its subsistence. The cultivation of the soil causes it to produce an infinite increase. It forms the surest resource, and the most solid fund of riches and commerce for a nation that enjoys a happy climate. The sovereign ought to neglect no means of rendering the land under his jurisdiction as well cultivated as possible.... Notwithstanding the introduction of private property among the citizens, the nation has still the right to take the most effectual measures to cause the aggregate soil of the country to produce the greatest and most advantageous revenue possible. The cultivation of the soil deserves the attention of the Government, not only on account of the invaluable advantages that flow from it, but from its being an obligation imposed by nature on mankind."
Sir Henry Maine thinks that there are traces in England of the commune or MARK system in the village communities which are believed to have existed, but these traces are very faint. The subsequent changes were inherent in, and developed by, the various conquests that swept over England; even that ancient class of holdings called "Borough English," are a development of a war-like system, under which each son, as he came to manhood, entered upon the wars, and left the patrimonial lands to the youngest son. The system of gavel-kind which prevailed in the kingdom of Kent, survived the accession of William of Normandy, and was partially effaced in the reign of Henry VII. It was not the aboriginal or communistic system, but one of its many successors.
The various systems may have run one into the other, but I think there are sufficiently distinct features to place them in the following order:
1st. The Aboriginal.
2d. The Roman, Population about 1,500,000.
3d. The Scandinavian under the ANGLO-SAXON and Danish kings—A.D. 450 to A.D. 1066. The population in 1066 was 2,150,000.
4th. The Norman, from A.D. 1066 to A.D. 1154. The population in the latter year was 3,350,000.
5th. The Plantagenet, from 1154 to 1485; in the latter the population was 4,000,000.
6th. The Tudor, 1485 to 1603, when the population was 5,000,000.
7th. The Stuarts, 1603 to 1714, the population having risen to 5,750,000.
8th. The Present, from 1714. Down to 1820 the soil supported the population; now about one half lives upon food produced in other countries. In 1874 the population was 23,648,607.
Each of these periods has its own characteristic, but as I must compress my remarks, you must excuse my passing rapidly from one to the other.
I. THE ABORIGINES.
The aboriginal period is wrapped in darkness, and I cannot with certainty say whether the system that prevailed was Celtic and Tribal. An old French customary, in a MS. treating upon the antiquity of tenures, says: "The first English king divided the land into four parts. He gave one part to the ARCH FLAMENS to pray for him and his posterity. A second part he gave to the earls and nobility, to do him knight's service. A third part he divided among husbandmen, to hold of him in socage. The fourth he gave to mechanical persons to hold in burgage." The terms used apply to a much more recent period and more modern ideas.
Caesar tells us "that the island of Britain abounds in cattle, and the greatest part of those within the country never sow their land, but live on flesh and milk. The sea-coasts are inhabited by colonies from Belgium, which, having established themselves in Britain, began to cultivate the soil."
Diodorus Siculus says, "The Britons, when they have reaped their corn, by cutting the ears from the stubble, lay them up for preservation in subterranean caves or granaries. From thence, they say, in very ancient times, they used to take a certain quantity of ears out every day, and having dried and bruised the grains, made a kind of food for their immediate use."
Jeffrey of Monmouth relates that one of the laws of Dunwalls Molnutus, who is said to have reigned B.C. 500, enacted that the ploughs of the husbandmen, as well as the temples of the gods, should be sanctuaries to such criminals as fled to them for protection.
Tacitus states that the Britons were not a free people, but were under subjection to many different kings.
Dr. Henry, quoting Tacitus, says, "In the ancient German and British nation the whole riches of the people consisted in their flocks and herds; the laws of succession were few and simple: a man's cattle, at death, were equally divided among his sons; or, if he had no sons, his daughters; or if he had no children, among his nearest relations. These nations seem to have had no idea of the rights of primogeniture, or that the eldest son had any title to a larger share of his father's effects than the youngest."
The population of England was scanty, and did not probably exceed a million of inhabitants. They were split up into a vast number of petty chieftainries or kingdoms; there was no cohesion, no means of communication between them; there was no sovereign power which could call out and combine the whole strength of the nation. No single chieftain could oppose to the Romans a greater force than that of one of its legions, and when a footing was obtained in the island, the war became one of detail; it was a provincial rather that a national contest. The brave, though untrained and ill-disciplined warriors, fell before the Romans, just as the Red Man of North America was vanquished by the English settlers.
II. THE ROMAN.
The Romans acted with regard to all conquered nations upon the maxim, "To the victors the spoils." Britain was no exception. The Romans were the first to discover or create an ESTATE OF USES in land, as distinct from an estate of possession. The more ancient nations, the Jews and the Greeks, never recognized THE ESTATE OF USES, though there is some indication of it in the relation established by Joseph in Egypt, when, during the years of famine, he purchased for Pharaoh the lands of the people. The Romans having seized upon lands in Italy belonging to conquered nations, considered them public lands, and rented them to the soldiery, thus retaining for the state the estate in the lands, but giving the occupier an estate of uses. The rent of these public lands was fixed at one tenth of the produce, and this was termed USUFRUCT—the use of the fruits.
The British chiefs, who submitted to the Romans, were subjected to a tribute or rent in corn; it varied, according to circumstances, from one fifth to one twentieth of the produce. The grower was bound to deliver it at the prescribed places. This was felt to be a great hardship, as they were often obliged to carry the grain great distances, or pay a bribe to be excused. This oppressive law was altered by Julius Agricola.
The Romans patronized agriculture—Cato says, "When the Romans designed to bestow the highest praise on a good man, they used to say he understood agriculture well, and is an excellent husbandman, for this was esteemed the greatest and most honorable character." Their system produced a great alteration in Britain, and converted it into the most plentiful province of the empire; it produced sufficient corn for its own inhabitants, for the Roman legions, and also afforded a great surplus, which was sent up the Rhine. The Emperor Julian built new granaries in Germany, in which he stored the corn brought from Britain. Agriculture had greatly improved in England under the Romans.
The Romans do not appear to have established in England any military tenures of land, such as those they created along the Danube and the Rhine; nor do they appear to have taken possession of the land; the tax they imposed upon it, though paid in kind, was more of the nature of a tribute than a rent. Though some of the best of the soldiers in the Roman legions were Britons, yet their rule completely enervated the aboriginal inhabitants—they were left without leaders, without cohesion. Their land was held by permission of the conquerors. The wall erected at so much labor in the north of England proved a less effectual barrier against the incursions of the Picts and Scots than the living barrier of armed men which, at a later period, successfully repelled their invasions. The Roman rule affords another example that material prosperity cannot secure the liberties of a people, that they must be armed and prepared to repel by force any aggression upon their liberty or their estates.
"Who will be free, themselves must strike the blow."
The prosperous "Britons," who were left by the Romans in possession of the island, were but feeble representatives of those who, under Caractacus and Boadicea, did not shrink from combat with the legions of Caesar. Uninured to arms, and accustomed to obedience, they looked for a fresh master, and sunk into servitude and serfdom, from which they never emerged. Yet under the Romans they had thriven and increased in material wealth; the island abounded in numerous flocks and herds; and agriculture, which was encouraged by the Romans, flourished. This wealth was by one of the temptations to the invaders, who seized not only upon the movable wealth of the natives, but also upon the land, and divided it among themselves.
The warlike portion of the aboriginal inhabitants appear to have joined the Cymri and retired westward. Their system of landholding was non-feudal, inasmuch as each man's land was divided among all his sons. One of the laws of Hoel Dha, King of Wales in the tenth century, decreed "that the youngest son shall have an equal share of the estate with the eldest son, and that when the brothers have divided their father's estate among them, the youngest son shall have the best house with all the office houses; the implements of husbandry, his father's kettle, his axe for cutting wood, and his knife; these three last things the father cannot give away by gift, nor leave by his last will to any but his youngest son, and if they are pledged they shall be redeemed." It may not be out of place here to say that this custom continued to exist in Wales; and on its conquest Edward I. ordained, "Whereas the custom is otherwise in Wales than England concerning succession to an inheritance, inasmuch as the inheritance is partible among the heirs-male, and from time whereof the memory of man is not to the contrary hath been partible, Our Lord the King will not have such custom abrogated, but willeth that inheritance shall remain partible among like heirs as it was wont to be, with this exception that bastards shall from henceforth not inherit, and also have portions with the lawful heirs; and if it shall happen that any inheritance should hereafter, upon failure of heirs-male, descend to females, the lawful heirs of their ancestors last served thereof. We will, of our especial grace, that the same women shall have their portions thereof, although this be contrary to the custom of Wales before used."
The land system of Wales, so recognized and regulated by Edward I., remained unchanged until the reign of the first Tudor monarch. Its existence raises the presumption that the aboriginal system of landholding in England gave each son a share of his father's land, and if so, it did not correspond with the Germanic system described by Caesar, nor with the tribal system of the Celts in Ireland, nor with the feudal system subsequently introduced.
The polity of the Romans, which endured in Gaul, Spain, and Italy, and tinged the laws and usages of these countries after they had been occupied by the Goths, totally disappeared in England; and even Christianity, which partially prevailed under the Romans, was submerged beneath the flood of invasion. Save the material evidence of the footprints of "the masters of the world" in the Roman roads, Roman wall, and some other structures, there is no trace of the Romans in England. Their polity, laws, and language alike vanished, and did not reappear for centuries, when their laws and language were reimported.
I should not be disposed to estimate the population of England and Wales, at the retirement of the Romans, at more than 1,500,000. They were like a flock of sheep without masters, and, deprived of the watch-dogs which over-awed and protected them, fell an easy prey to the invaders.
III. THE SCANDINAVIANS.
The Roman legions and the outlying semi-military settlements along the Rhine and the Danube, forming a cordon reaching from the German Ocean to the Black Sea, kept back the tide of barbarians, but the volume of force accumulated behind the barrier, and at length it poured in an overwhelming and destructive tide over the fair and fertile provinces whose weak and effeminate people offered but a feeble resistance to the robust armies of the north. The Romans, under the instruction of Caesar and Tacitus, had a faint idea of the usages of the people inhabiting the verge that lay around the Roman dominions, but they had no knowledge of the influences that prevailed in "the womb of nations," as Central Europe appeared to the Latins, who saw emerging therefrom hosts of warriors, bearing with them their wives, their children, and their portable effects, determined to win a settlement amid the fertile regions owned and improved by the Romans.
These incursions were not colonization in the sense in which Rome understood it; they were the migrations of a people, and were as full, as complete, and as extensive as the Israelitish invasion of Canaan—they were more destructive of property, but less fatal to life. These migratory hosts left a desert behind them, and they either gained a settlement or perished. The Roman colonies preserved their connection with the parent stem, and invoked aid when in need; but the barbarian hosts had no home, no reserves. Other races, moving with similar intent, settled on the land they had vacated. These brought their own social arrangements, and it is very difficult to connect the land system established by the aborigines with the system which, after a lapse of some hundreds of years, was found to prevail in another tribe or nation which had occupied the region that had been vacated.
Neither Caesar nor Tacitus gives us any idea of the habits or usages of the people who lived north of the Belgae. They had no notion of Scandinavia nor of Sclavonia. The Walhalla of the north, with its terrific deities, was unknown to them; and I am disposed to think that we shall look in vain among the customs of the Teutons for the basis from whence came the polity established in England by the invaders of the fifth century. The ANGLO-SAXONs came from a region north of the Elbe, which we call Schleswig—Holstein. They were kindred to the Norwegians and the Danes, and of the family of the sea robbers; they were not Teutons, for the Teutons were not and are not sailors. The Belgae colonized part of the coast—i.e., the settlers maintained a connection with the mainland; but the Angles, the Saxons, and the Jutes did not colonize, they migrated; they left no trace of their occupancy in the lands they vacated. Each separate invasion was the settlement of a district; each leader aspired to sovereignty, and was supreme in his own domains; each claimed descent from Woden, and, like Romulus or Alexander, sought affinity with the gods. Each member of the Heptarchy was independent of, and owed no allegiance to, the other members; and marriage or conquest united them ultimately into one kingdom.
The primary institutions were moulded by time and circumstance, and the state of things in the eleventh century was as different from that of the fifth as those of our own time differ from the rule of Richard II. Yet one was as much an outgrowth of its predecessor as the other.
Attempts have been made, with considerable ingenuity, to connect races with each other by peculiar characteristics, but human society has the same necessities, and we find great similarity in various divisions of society. At all times, and in all nations, society resolved itself into the upper, middle, and lower classes. Rome had its Nobles, Plebeians, and Slaves; Germany its Edhilingi, Frilingi, and Lazzi; England its Eaorls, Thanes, and Ceorls. It would be equally cogent to argue that, because Rome had three classes and England had three classes, the latter was derived from the former, as to conclude that, because Germany had three classes, therefore English institutions were Teutonic. If the invasion of the fifth century were Teutonic we should look for similar nomenclature, but there is as great a dissimilarity between the English and German names of the classes as between the former and those of Rome.
The Germanic MARK system has no counterpart in the land system introduced into England by the ANGLO-SAXONs. If village communities existed in England, it must have been before the invasion of the Romans. The German system, as described by Caesar, was suited to nomads—to races on the wing, who gave to no individual possession for more than a year, that there might be no home ties. The mark system is of a later date, and was evidently the arrangement of other races who permanently settled themselves upon the lands vacated by the older nations. And I may suggest whether, as these lands were originally inhabited by the Celts, the conquerors did not adopt the system of the conquered.
Even in the nomenclature of FEUDALISM, introduced into England in the fifth century, we are driven back to Scandinavia for an explanation. The word FEUDAL as applied to land has a Norwegian origin, from which country came Rollo, the progenitor of William the Norman. Pontoppidan ("History of Norway," p.290) says "The ODHALL, right of Norway, and the UDALL, right of Finland, came from the words 'Odh,' which signifies PROPRIETORS, and 'all,' which means TOTUM. A transposition of these syllables makes ALL ODH, or ALLODIUM, which means absolute property. FEE, which means stipend or pay, united with OTH, thus forming FEE-OTH or FEODUM, denoting stipendiary property. Wacterus states that the word ALLODE, ALLODIUM, which applies to land in Germany, is composed of AN and LOT—i.e., land obtained by lot.
I therefore venture the opinion that the settlement of England in the fifth and sixth centuries was not Teutonic or Germanic, but SCANDINAVIAN.
The lands won by the swords of all were the common property of all; they were the lands of the people, FOLC-LAND; they were distributed by lot at the FOLC-GEMOT; they were ODH-ALL lands; they were not held of any superior nor was there any service save that imposed by the common danger. The chieftains were elected and obeyed, because they represented the entire people. Hereditary right seems to have been unknown. The essence of feudalism WAS A LIFE ESTATE, the land reverted either to the sovereign or to the people upon the death of the occupant. At a later period the monarch claimed the power of confiscating land, and of giving it away by charter or deed; and hence arose the distinction between FOLC-LAND and BOC-LAND (the land of the book or charter), a distinction somewhat similar to the FREEHOLD and COPYHOLD tenures of the present day. King Alfred the Great bequeathed "his BOC-LAND to his nearest relative; and if any of them have children it is more agreeable to me that it go to those born on the male side." He adds, "My grandfather bequeathed his land on the spear side, not on the spindle side; therefore if I have given what he acquired to any on the female side, let my kinsman make compensation."
The several ranks were thus defined by Athelstane:
"1st. It was whilom in the laws of the English that the people went by ranks, and these were the counsellors of the nation, of worship worthy each according to his condition—'eorl,' 'ceorl,' 'thegur,' and 'theodia.'
"2d. If a ceorl thrived, so that he had fully five hides (600 acres) of land, church and kitchen, bell-house and back gatescal, and special duty in the king's hall, then he was thenceforth of thane-right worthy.
"3d. And if a thane thrived so that he served the king, and on his summons rode among his household, if he then had a thane who him followed, who to the king utward five hides, had, and in the king's hall served his lord, and thence, with his errand, went to the king, he might thenceforth, with his fore oath, his lord represent at various needs, and his and his plant lawfully conduct wheresoever he ought.
"4th. And he who so prosperous a vicegerent had not, swore for himself according to his right or it forfeited.
"5th. And if a 'thane' thrived so that he became an eorl, then was he thenceforth of eorl-right worthy.
"6th. And if a merchant thrived so that he fared thrice over the wide sea by his own means (or vessels), then was he thenceforth of thane-right worthy."
The oath of fealty, as prescribed by the law of Edward and Guthrum, was very similar to that used at a later period, and ran thus:
"Thus shall a man swear fealty: By the Lord, before whom this relic is holy, I will be faithful and true, and love all that he loves, and shun all that he shuns, according to God's law, and according to the world's principles, and never by will nor by force, by word nor by work, do aught of what is loathful to him, on condition that he me keep, as I am willing to deserve, and all that fulfil, that our agreement was, when I to him submitted and chose his will."
The Odh-all (noble) land was divided into two classes: the in-lands, which were farmed by slaves under Bailiffs, and the out-lands, which were let to ceorls either for one year or for a term. The rents were usually paid in kind, and were a fixed proportion of the produce. Ina, King of the West Saxons, fixed the rent of ten hides (1200 acres), in the beginning of the eighth century, as follows: 10 casks honey, 12 casks strong ale, 30 casks small ale, 300 loaves bread, 2 oxen, 10 wedders, 10 geese, 20 hens, 10 chickens, 10 cheeses, 1 cask butter, 5 salmon, 20 lbs. forage, and 100 eels. In the reign of Edgar the Peaceable (tenth century), land was sold for about four shillings of the then currency per acre. The Abbot of Ely bought an estate about this time, which was paid for at the rate of four sheep or one horse for each acre.
The FREEMEN (LIBERI HOMINES) were a very numerous class, and all were trained in the use of arms. Their FOLC-LAND was held under the penalty of forfeiture if they did not take the field, whenever required for the defence of the country. In addition, a tax, called Danegeld, was levied at a rate varying from two shillings to seven shillings per hide of land (120 acres); and in 1008, each owner of a large estate, 310 hides, was called on to furnish a ship for the navy.
Selden ("Laws and Government of England," p. 34) thus describes the FREEMEN among the Saxons, previous to the Conquest:
"The next and most considerable degree of all the people is that of the FREEMEN, anciently called Frilingi, [Footnote: This is a Teutonic, not an ANGLO-SAXON term; the ANGLO-SAXON word is Thane.] or Free-born, or such as are born free from all yoke of arbitrary power, and from all law of compulsion, other than what is made by their voluntary consent, for all FREEMEN have votes in the making and executing of the general laws of the kingdom. In the first, they differed from the Gauls, of whom it is noted that the commons are never called to council, nor are much better than servants. In the second, they differ from many free people, and are a degree more excellent, being adjoined to the lords in judicature, both by advice and power (consilium et authoritates adsunt), and therefore those that were elected to that work were called Comites ex plebe, and made one rank of FREEMEN for wisdom superior to the rest. Another degree of these were beholden for their riches, and were called Custodes Pagani, an honorable title belonging to military service, and these were such as had obtained an estate of such value as that their ordinary arms were a helmet, a coat of mail, and a gilt sword. The rest of the FREEMEN were contented with the name of Ceorls, and had as sure a title to their own liberties as the Custodes Pagani or the country gentlemen had."
Land was liable to be seized upon for treason and forfeited; but even after the monarchs had assumed the functions of the FOLC-GEMOT, they were not allowed to give land away without the approval of the great men; charters were consented to and witnessed in council. "There is scarcely a charter extant," says Chief Baron Gilbert, "that is not proof of this right." The grant of Baldred, King of Kent, of the manor of Malling, in Sussex, was annulled because it was given without the consent of the council. The subsequent gift thereof, by Egbert and Athelwolf, was made with the concurrence and assent of the great men. The kings' charters of escheated lands, to which they had succeeded by a personal right, usually declared "that it might be known that what they gave was their own."
Discussions have at various times taken place upon the question, "Was the land-system of this period FEUDAL?" It engaged the attention of the Irish Court of King's Bench, in the reign of Charles I., and was raised in this way: James I. had issued "a commission of defective titles." Any Irish owner, upon surrendering his land to the king, got a patent which reconvened it on him. Wentworth (Lord Stafford) wished to SETTLE Connaught, as Ulster had been SETTLED in the preceding reign, and, to accomplish it, tried to break the titles granted under "the commission of defective titles." Lord Dillon's case, which is still quoted as an authority, was tried. The plea for the Crown alleged that the honor of the monarch stood before his profit, and as the commissioners were only authorized to issue patents to hold in capite, whereas they had given title "to hold in capite, by knights' service out of Dublin Castle," the grant was bad. In the course of the argument, the existence of feudal tenures, before the landing of William of Normandy, was discussed, and Sir Henry Spelman's views, as expressed in the Glossary, were considered. The Court unanimously decided that feudalism existed in England under the ANGLO-SAXONs, and it affirmed that Sir Henry Spelman was wrong. This decision led Sir Henry Spelman to write his "Treatise on Feuds," which was published after his death, in which he reasserted the opinion that feudalism was introduced into England at the Norman invasion. This decision must, however, be accepted with a limitation; I think there was no separate order of NOBILITY under the ANGLO-SAXON rule. The king had his councillors, but there appears to have been no order between him and the FOLC-GEMOT. The Earls and the Thanes met with the people, but did not form a separate body. The Thanes were country gentleman, not senators. The outcome of the heptarchy was the Earls or Ealdermen; this was the only order of nobility among the Saxons; they corresponded to the position of lieutenants of counties, and were appointed for life. In 1045 there were nine such officers; in 1065 there were but six. Harold's earldom, at the former date, comprised Norfolk, Suffolk, Essex, and Middlesex; and Godwin's took in the whole south coast from Sandwich to the Land's End, and included Kent, Sussex, Hampshire, Wilts, Devonshire, and Cornwall. Upon the death of Godwin, Harold resigned his earldom, and took that of Godwin, the bounds being slightly varied. Harold retained his earldom after he became king, but on his death it was seized upon by the Conqueror, and divided among his followers.
The Crown relied upon the LIBERI HOMINES or FREEMEN. The country was not studded with castles filled with armed men. The HOUSE of the Thane was an unfortified structure, and while the laws relating to land were, in my view, essentially FEUDAL, the government was different from that to which we apply the term FEUDALISM, which appears to imply baronial castles, armed men, and an oppressed people.
I venture to suggest to some modern writers that further inquiry will show them that FOLC-LAND was not confined to commonages, or unallotted portions, but that at the beginning it comprised all the land of the kingdom, and that the occupant did not enjoy it as owner-in-severalty; he had a good title against his fellow subjects, but he held under the FOLC-GEMOT, and was subject to conditions. The consolidation of the sovereignty, the extension of laws of forfeiture, the assumption by the kings of the rights of the popular assemblies, all tended to the formation of a second set of titles, and BOC-LAND became an object of ambition. The same individual appears to have held land by both titles, and to have had greater powers over the latter than over the former.
Many of those who have written on the subject seem to me to have failed to grasp either the OBJECT or the GENIUS of FEUDALISM. It was the device of conquerors to maintain their possessions, and is not to be found among nations, the original occupiers of the land, nor in the conquests of states which maintained standing armies. The invading hosts elected their chieftain, they and he had only a life use of the conquests. Upon the death of one leader another was elected, so upon the death of the allottee of a piece of land it reverted to the state. The GENIUS of FEUDALISM was life ownership and non-partition. Hence the oath of fealty was a personal obligation, and investiture was needful before the new feudee took possession. The state, as represented by the king or chieftain, while allowing the claim of the family, exercised its right to select the individual. All the lands were considered BENEFICIA, a word which now means a charge upon land, to compensate for duties rendered to the state. Under this system, the feudatory was a commander, his residence a barrack, his tenants soldiers; it was his duty to keep down the aborigines, and to prevent invasion. He could neither sell, give, nor bequeath his land. He received the surplus revenue as payment for personal service, and thus enjoyed his BENEFICE. Judged in this way, I think the feudal system existed before the Norman Conquest. Slavery and serfdom undoubtedly prevailed. The country prospered under the Scandinavians; and, from the great abundance of corn, William of Poitiers calls England "the store-house of Ceres."
IV. THE NORMANS.
The invasion of William of Normandy led to results which have been represented by some writers as having been the most momentous in English history. I do not wish in any way to depreciate their views, but it seems to me not to have been so disastrous to existing institutions, as the Scandinavian invasion, which completely submerged all former usages. No trace of Roman occupation survived the advent of the ANGLO-SAXONs; the population was reduced to and remained in the position of serfs, whereas the Norman invasion preserved the existing institutions of the nation, and subsequent changes were an outgrowth thereof.
When Edward the Confessor, the last descendant of Cedric, was on his deathbed, he declared Harold to be his successor, but William of Normandy claimed the throne under a previous will of the same monarch. He asked for the assistance of his own nobles and people in the enterprise, but they refused at first, on the ground that their feudal compact only required them to join in the defence of their country, and did not coerce them into affording him aid in a completely new enterprise; and it was only by promising to compensate them out of the spoils that he could secure their co-operation. A list of the number of ships supplied by each Norman chieftain appears in Lord Lyttleton's "History of Henry III." vol. i., appendix.
I need hardly remind you that the settlers in Normandy were from Norway, or that they had been expelled from their native land in consequence of their efforts to subvert its institutions, and to make the descent of land hereditary, instead of being divisible among all the sons of the former owner. Nor need I relate how they won and held the fair provinces of northern France—whether as a fief of the French Crown or not, is an open question. But I should wish you to bear in mind their affinity to the ANGLO-SAXONs, to the Danes, and to the Norwegians, the family of Sea Robbers, whose ravages extended along the coasts of Europe as far south as Gibraltar, and, as some allege, along the Mediterranean. Some questions have been raised as to the means of transport of the Saxons, the Jutes, and the Angles, but they were fully as extensive as those by which Rollo invaded France or William invaded England.
William strengthened his claim to the throne by his military success, and by a form of election, for which there were many previous precedents. Those who called upon him to ascend it alleged "that they had always been ruled by legal power, and desired to follow in that respect the example of their ancestors, and they knew of no one more worthy than himself to hold the reins of government."
His alleged title to the crown, sanctioned by success and confirmed by election, enabled him, in conformity with existing institutions, to seize upon the lands of Harold and his adherents, and to grant them as rewards to his followers. Such confiscation and gifts were entirely in accord with existing usages, and the great alteration which took place in the principal fiefs was more a change of persons than of law. A large body of the aboriginal people had been, and continued to be, serfs or villeins; while the mass of the FREEMEN (LIBERI HOMINES) remained in possession of their holdings.
It may not be out of place here to say a few words about this important class, which is in reality the backbone of the British constitution; it was the mainstay of the ANGLO-SAXON monarchy; it lost its influence during the civil wars of the Plantagenets, but reasserted its power under Cromwell. Dr. Robertson thus draws the line between them and the vassals:
"In the same manner Liber homo is commonly opposed to Vassus or Vassalus, the former denoting an allodial proprietor, the latter one who held of a superior. These FREEMEN were under an obligation to serve the state, and this duty was considered so sacred that FREEMEN were prohibited from entering into holy orders, unless they obtained the consent of the sovereign."
De Lolme, chap. i., sec. 5, says:
"The Liber homo, or FREEMAN, has existed in this country from the earliest periods, as well as of authentic as of traditionary history, entitled to that station in society as one of his constitutional rights, as being descended from free parents in contradistinction to 'villains,' which should be borne in remembrance, because the term 'FREEMAN' has been, in modern times, perverted from its constitutional signification without any statutable authority." The LIBERI HOMINES are so described in the Doomsday Book. They were the only men of honor, faith, trust, and reputation in the kingdom; and from among such of these as were not barons, the knights did choose jurymen, served on juries themselves, bare offices, and dispatched country business. Many of the LIBERI HOMINES held of the king in capite, and several were freeholders of other persons in military service. Their rights were recognized and guarded by the 55th William I.; [Footnote: "LV.—De Chartilari seu Feudorum jure et Ingenuorum immunitate. Volumus etiam ac firmiter praecipimus et concedimus ut omnes LIBERI HOMINES totius Monarchiae regni nostri praedicti habeant et teneant terras suas et possessiones suas bene et in pace, liberi ab omni, exactione iniusta et ab omni Tallagio: Ita quod nihil ab eis exigatur vel capiatur nisi servicium suum liberum quod de iure nobis facere debent et facere tenentur et prout statutum est eis et illis a nobis datum et concessum iure haereditario imperpetuum per commune consilium totius regni nostri praeicti."] it is entitled:
"CONCERNING CHEUTILAR OR FEUDAL RIGHTS, AND THE IMMUNITY OF FREEMEN.
"We will also, and strictly, enjoin and concede that all FREEMEN (LIBERI HOMINES) of our whole kingdom aforesaid, have and hold their land and possessions well and in peace, free from every unjust exaction and from Tallage, so that nothing be exacted or taken from them except their free service, which of right they ought to do to us and are bound to do, and according as it was appointed (statutum) to them, and given to them by us, and conceded by hereditary right for ever, by the common council (FOLC-GEMOT} of our whole realm aforesaid."
These FREEMEN were not created by the Norman Conquest, they existed prior thereto; and the laws, of which this is one, are declared to be the laws of Edward the Confessor, which William re-enacted. Selden, in "The Laws and Government of England," p. 34, speaks of this law as the first Magna Charta. He says:
"Lastly, the one law of the kings, which may be called the first MAGNA CHARTA in the Norman times (55 William I.), by which the king reserved to himself, from the FREEMEN of this kingdom, nothing but their free service, in the conclusion saith that their lands were thus granted to them in inheritance of the king by the COMMON COUNCIL (FOLC-GEMOT) of the whole kingdom; and so asserts, in one sentence, the liberty of the FREEMEN, and of the representative body of the kingdom."
He further adds:
"The freedom of an ENGLISHMAN consisteth of three particulars: first, in OWNERSHIP; second, in VOTING ANY LAW, whereby ownership is maintained; and, thirdly, in having an influence upon the JUDICIARY POWER that must apply the law. Now the English, under the Normans, enjoyed all this freedom with each man's own particular, besides what they had in bodies aggregate. This was the meaning of the Normans, and they published the same to the world in a fundamental law, whereby is granted that all FREEMEN shall have and hold their lands and possessions in hereditary right for ever; and by this they being secured from forfeiture, they are further saved from all wrong by the same law, which provideth that they shall hold them well or quietly, and in peace, free from all unjust tax, and from all Tallage, so as nothing shall be exacted nor taken but their free service, which, by right, they are bound to perform."
This is expounded in the law of Henry I., cap. 4, to mean that no tribute or tax shall be taken but what was due in the Confessor's time, and Edward II. was sworn to observe the laws of the Confessor.
The nation was not immediately settled. Rebellions arose either from the oppression of the invaders or the restlessness of the conquered; and, as each outburst was put down by force, there were new lands to be distributed among the adherents of the monarch; ultimately there were about 700 chief tenants holding IN CAPITE, but the nation was divided into 60,215 knights' fees, of which the Church held 28,115. The king retained in his own hands 1422 manors, besides a great number of forests, parks, chases, farms, and houses, in all parts of the kingdom; and his followers received very large holdings.
Among the Saxon families who retained their land was one named Shobington in Bucks. Hearing that the Norman lord was coming to whom the estate had been gifted by the king, the head of the house armed his servants and tenants, preparing to do battle for his rights; he cast up works, which remain to this day in grassy mounds, marking the sward of the park, and established himself behind them to await the despoiler's onset. It was the period when hundreds of herds of wild cattle roamed the forest lands of Britain, and, failing horses, the Shobingtons collected a number of bulls, rode forth on them, and routed the Normans, unused to such cavalry. William heard of the defeat, and conceived a respect for the brave man who had caused it; he sent a herald with a safe conduct to the chief, Shobington, desiring to speak with him. Not many days after, came to court eight stalwart men riding upon bulls, the father and seven sons. "If thou wilt leave me my lands, O king," said the old man, "I will serve thee faithfully as I did the dead Harold." Whereupon the Conqueror confirmed him in his ownership, and named the family Bullstrode, instead of Shobington.
Sir Martin Wright, in his "Treatise on Tenures," published in 1730, p. 61, remarks:
"Though it is true that the possessions of the Normans were of a sudden very great, and that they received most of them from the hands of William I., yet it does not follow that the king took all the lands of England out of the hands of their several owners, claiming them as his spoils of war, or as a parcel of a conquered country; but, on the contrary, it appears pretty plain from the history of those times that the king either had or pretended title to the crown, and that his title, real or pretended, was established by the death of Harold, which amounted to an unquestionable judgment in his favor. He did not therefore treat his opposers as enemies, but as traitors, agreeably to the known laws of the kingdom which subjected traitors not only to the loss of life but of all their possessions."
He adds (p. 63):
"As William I. did not claim to possess himself of the lands of England as the spoils of conquest, so neither did he tyrannically and arbitrarily subject them to feudal dependence; but, as the fedual law was at that time the prevailing law of Europe, William I., who had always governed by this policy, might probably recommend it to our ancestors as the most obvious and ready way to put them upon a footing with their neighbors, and to secure the nation against any future attempts from them. We accordingly find among the laws of William I. a law enacting feudal law itself, not EO NOMINE, but in effect, inasmuch as it requires from all persons the same engagements to, and introduces the same dependence upon, the king as supreme lord of all the lands of England, as were supposed to be due to a supreme lord by the feudal law. The law I mean is the LII. law of William I."
This view is adopted by Sir William Blackstone, who writes (vol. ii., p. 47):
"From the prodicious slaughter of the English nobility at the battle of Hastings, and the fruitless insurrection of those who survived, such numerous forfeitures had accrued that he (William) was able to reward his Norman followers with very large and extensive possessions, which gave a handle to monkish historians, and such as have implicitly followed them to represent him as having by the right of the sword, seized upon all the lands of England, and dealt them out again to his own favorites—a supposition grounded upon a mistaken sense of the word conquest, which in its feudal acceptation signifies no more than acquisition, and this has led many hasty writers into a strange historical mistake, and one which, upon the slightest examination, will be found to be most untrue.
"We learn from a Saxon chronicle (A.D. 1085), that in the nineteenth year of King William's reign, an invasion was apprehended from Denmark; and the military constitution of the Saxons being then laid aside, and no other introduced in its stead, the kingdom was wholly defenceless; which occasioned the king to bring over a large army of Normans and Britons who were quartered upon, and greatly oppressed, the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king's remonstrance, and better incline the nobility to listen to his proposals for putting them in a position of defence. For, as soon as the danger was over, the king held a great council to inquire into the state of the nation, the immediate consequence of which was the compiling of the great survey called the Doomsday Book, which was finished the next year; and in the end of that very year (1086) the king was attended by all his nobility at Sarum, where the principal landholders submitted their lands to the yoke of military tenure, and became the king's vassals, and did homage and fealty to his person."
Mr. Henry Hallam writes:
"One innovation made by William upon the feudal law is very deserving of attention. By the leading principle of feuds, an oath of fealty was due from the vassal to the lord of whom he immediately held the land, and no other. The King of France long after this period had no feudal, and scarcely any royal, authority over the tenants of his own vassals; but William received at Salisbury, in 1085, the fealty of all landholders in England, both those who held in chief and their tenants, thus breaking in upon the feudal compact in its most essential attribute—the exclusive dependence of a VASSAL upon his lord; and this may be reckoned among the several causes which prevented the continental notions of independence upon the Crown from ever taking root among the English aristocracy."
A more recent writer, Mr. FREEMAN ("History of the Norman Conquest," published in 1871, vol. iv., p. 695), repeats the same idea, though not exactly in the same words. After describing the assemblage which encamped in the plains around Salisbury, he says:
"In this great meeting a decree was passed, which is one of the most memorable pieces of legislation in the whole history of England. In other lands where military tenure existed, it was beginning to be held that he who plighted his faith to a lord, who was the man of the king, was the man of that lord only, and did not become the man of the king himself. It was beginning to be held that if such a man followed his immediate lord to battle against the common sovereign, the lord might draw on himself the guilt of treason, but the men that followed him would be guiltless. William himself would have been amazed if any vassal of his had refused to draw his sword in a war with France on the score of duty toward an over-lord. But in England, at all events, William was determined to be full king over the whole land, to be immediate sovereign and immediate lord of every man. A statute was passed that every FREEMAN in the realm should take the oath of fealty to King William."
Mr. FREEMAN quotes Stubbs's "Select Charters," p. 80, as his authority. Stubbs gives the text of that charter, with ten others. He says: "These charters are from 'Textus Roffensis,' a manuscript written during the reign of Henry I.; it contains the sum and substance of all the legal enactments made by the Conqueror independent of his confirmation of the earlier laws." It is as follows: "Statuimus etiam ut OMNIS LIBER HOMO feodere et sacramento affirmet, quod intra et extra Angliam Willelmo regi fideles esse volunt, terras et honorem illius omni fidelitate cum eo servare et eum contra inimicos defendere."
It will be perceived that Mr. Hallam reads LIBER HOMO as "vassal." Mr. FREEMAN reads them as "FREEMAN," while the older authority, Sir Martin Wright, says: "I have translated the words LIBERI HOMINES, 'owners of land,' because the sense agrees best with the tenor of the law."
The views of writers of so much eminence as Sir Martin Wright, Sir William Blackstone, Mr. Henry Hallam, and Mr. FREEMAN, are entitled to the greatest respect and consideration, and it is with much diffidence I venture to differ from them. The three older writers appear to have had before them the LII of William I., the latter the alleged charter found in the "Textus Roffensis;" but as they are almost identical in expression, I treat the latter as a copy of the former, and I do not think it bears out the interpretation sought to be put upon it—that it altered either the feudalism of England, or the relation of the vassal to his lord; and it must be borne in mind that not only did William derive his title to the crown from Edward the Confessor, but he preserved the apparent continuity, and re-enacted the laws of his predecessor. Wilkins' "Laws of the ANGLO-SAXONs and Normans," republished in 1840 by the Record Commissioners, gives the following introduction:
"Here begin the laws of Edward, the glorious king of England.
"After the fourth year of the succession to the kingdom of William of this land, that is England, he ordered all the English noble and wise men and acquainted with the law, through the whole country, to be summoned before his council of barons, in order to be acquainted with their customs, Having therefore selected from all the counties twelve, they were sworn solemnly to proceed as diligently as they might to write their laws and customs, nothing omitting, nothing adding, and nothing changing."
Then follow the laws, thirty-nine in number, thus showing the continuity of system, and proving that William imposed upon his Norman followers the laws of the ANGLO-SAXONs. They do not include the LII. William I., to which I shall refer hereafter. I may, however, observe that the demonstration at Salisbury was not of a legislative character; and that it was held in conformity with ANGLO-SAXON usages. If, according to Stubbs, the ordinance was a charter, it would proceed from the king alone. The idea involved in the statements of Sir Martin Wright, Mr. Hallam, and Mr. FREEMAN, that the VASSAL OF A LORD was then called on to swear allegiance to the KING, and that it altered the feudal bond in England, is not supported by the oath of vassalage. In swearing fealty, the vassal knelt, placed his hands between those of his lord's, and swore:
"I become your man from this day forward, of life and limb, and of earthly worship, and unto you shall be true and faithful, and bear you faith for the tenements at that I claim to hold of you, saving the faith that I owe unto our Sovereign Lord the King."
This shows that it was unnecessary to call vassals to Salisbury to swear allegiance. The assemblage was of the same nature and character as previous meetings. It was composed of the LIBERI HOMINES, the FREEMEN, described by the learned John Selden (ante, p. 10), and by Dr. Robertson and De Lolme (ante, pp. 12, 13).
But there is evidence of a much stronger character, which of itself refutes the views of these writers, and shows that the Norman system, at least during the reign of William I., was a continuation of that existing previous to his succession to the throne; and that the meeting at Salisbury, so graphically portrayed, did not effect that radical change in the position of English landholders which has been stated. I refer to the works of EADMERUS; he was a monk of Canterbury who was appointed Bishop of St. Andrews, and declined or resigned the appointment because the King of Scotland refused to allow his consecration by the Archbishop of Canterbury. His history includes the reigns of William I., William II., and Henry I., from 1066 to 1122, and he gives, at page 173, the laws of Edward the Confessor, which William I. gave to England; they number seventy-one, including the LII. law quoted by Sir Martin Wright. The introduction to these laws is in Latin and Norman-French, and is as follows:
"These are the laws and customs which King William granted to the whole people of England after he had conquered the land, and they are those which KING EDWARD HIS PREDECESSOR observed before him."
[Footnote: The laws of William are given in a work entitled "Eadmeri Monachi Cantuariensis Historia Novorum," etc. It includes the reigns of William I. and II., and Henry I., from 1066 to 1122, and is edited by John Selden. Page 173 has the following:
"Hae sunt Leges et Consuetudines quas Willielmus Rex concessit universo Populo Angliae post subactam terram. Eaedum sunt quas Edwardus Rex cognatus ejus obscruauit ante eum.
"Ces sont les leis et les Custums que le Rui people de Engleterre apres le Conquest de le Terre. Ice les meismes que le Rui Edward sun Cosin tuit devant lui.
"De fide et obsequio erga Regnum.
"Statuimus etiam ut omnes liiben homines foedere et sacramento affirment quod intra et extra universum regnum Anglias (quod olim vocabatur regnum Britanniae) Willielmo suo domino fideles esse volunt, terras et honores illins fidelitate ubique servare cum eo et contra inimicos et alienigonas defendere."]
This simple statement gets rid of the theory of Sir Martin Wright, of Sir William Blackstone, of Mr. Hallam, and of Mr. FREEMAN, that William introduced a new system, and that he did so either as a new feudal law or as an amendment upon the existing feudalism. The LII. law, quoted by Wright, is as follows:
"We have decreed that all FREE MEN should affirm on oath, that both within and without the whole kingdom of England (which is called Britain) they desire to be faithful to William their lord, and everywhere preserve unto him his land and honors with fidelity, and defend them against all enemies and strangers."
Eadmerus, who wrote in the reign of Henry I., gives the LII. William I. as a confirmatory law. The charter given by Stubbs is a contraction of the law given by Eadmerus. The former uses the words OMNES LIBERI HOMINES; the latter, the words OMNIS LIBERI HOMO. Those interested can compare them, as I shall give the text of each side by side.
Since the paper was read, I have met with the following passage in Stubbs's "Constitutional History of England," vol. i., p. 265:
"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 land with all fidelity, and defend him against his enemies.' But this injunction is little more than the demand of the oath of allegiance taken to the Anglo-Saxon kings, and is here required not of every feudal dependant of the king, but of every FREEMAN or freeholder whatsoever. In that famous Council of Salisbury, A. D, 1086, which was summoned immediately after the making of the Doomsday 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 the act has 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 landowners 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 relations existing between them and the mesne lords would justify them in breaking."
I have already quoted from another of Stubbs's works, "Select Charters," the charter which he appears to have discovered bearing upon this transaction, and now copy the note, giving the authorities quoted by Stubbs, with reference to the above passage. He appears to have overlooked the complete narration of the alleged laws of William I., given by Eadmerus, to which I have referred. The note is as follows:
"Ll. William I., 2, below note; see Hovenden, ii., pref. p. 5, seq., where I have attempted to prove the spuriousness of the document called the Charter of William I., printed in the ancient 'Laws' ed. Thorpe, p. 211. The way in which the regulation of the Conqueror here referred to has been misunderstood and misused is curious. Lambarde, in the 'Archaionomia,' p. 170, printed the false charter in which this genuine article is incorporated as an appendiz to the French version of the Conqueror's laws, numbering the clauses 51 to 67; from Lambarde, the whole thing was transferred by Wilkins into his collection of ANGLO-SAXON laws. Blackstone's 'Commentary,' ii. 49, suggested that perhaps the very law (which introduced feudal tenures) thus made at the Council of Salisbury is that which is still extant and couched in these remarkable words, i. e., the injunction in question referred to by Wilkins, p. 228 Ellis, in the introduction to 'Doomsday,' i. 16, quotes Blackstone, but adds a reference to Wilkins without verifying Blackstone's quotation from his collection of laws, substituting for that work the Concilia, in which the law does not occur. Many modern writers have followed him in referring the enactment of the article to the Council of Salisbury. It is well to give here the text of both passages; that in the laws runs thus: 'Statuimus etiam ut omnis liber homo foedere et sacremento affirmet, quod intra et extra Angliam Willelmo regi fideles esse volunt, terras et honorem illius omni fidelitate eum eo servare et ante eum contra inimicos defendere' (Select Charters, p. 80). the homage done at Salisbury is described by Florence thus: 'Nec multo post mandavit ut Archiepiscopi episcopi, abbates, comitas et barones et vicecomitas cum suis militibus die Kalendarum Augustarem sibi occurent Saresberiae quo cum venissent milites eorem sibi fidelitatem contra omnes homines jurare coegit.' The 'Chronicle' is a little more full: 'Thaee him comon to his witan and ealle tha Landsittende men the ahtes waeron ofer eall Engleland waeron thaes mannes men the hi waeron and ealle hi bugon to him and waeron his men, and him hold athas sworon thaet he woldon ongean ealle other men him holde beon.'"
Mr. Stubbs had, in degree, adopted the view at which I had arrived, that the law or charter of William I. was an injunction to enforce the oath of allegiance, previously ordered by the laws of Edward the Confessor, to be taken by all FREEMEN, and that it did not relate to vassals, or alter the existing feudalism.
As the subject possesses considerable interest for the general reader as well as the learned historian, I think it well to place the two authorities side by side, that the text may be compared:
LII. William I., as given by Eadments. "De fide et obsequio erga Regnum.
"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.
V. THE PLANTAGENETS.
Whatever doubts may exist as to the influence of the Norman Conquest upon the mass of the people—the FREEMEN, the ceorls, and the serfs—there can be no doubt that its effect upon the higher classes was very great. It added to the existing FEUDALISM—the system of Baronage, with its concomitants of castellated residences filled with armed men. It led to frequent contests between neighboring lords, in which the liberty and rights of the FREEMEN were imperilled. It also eventuated in the formation of a distinct order-the peerage—and for a time the constitutional influence of the assembled people, the FOLC-GEMOT, was overborne.
The principal Norman chieftains were barons in their own country, and they retained that position in England, but their holdings in both were feudal, not hereditary. When the Crown, originally elective, became hereditary, the barons sought to have their possessions governed by the same rule, to remove them from the class of TERRAREGIS (FOLC-LAND), and to convert them into chartered land. Being gifts from the monarch, he had the right to direct the descent, and all charters which gave land to a man and his heirs, made each of them only a tenant for life; the possessor was bound to hand over the estate undivided to the heir, and he could neither give, sell, nor bequeath it. The land was BENEFICIA, just as appointments in the Church, and reverted, as they do, to the patron to be re-granted. They were held upon military service, and the major barons, adopting the Saxon title Earl, claimed to be PEERS of the monarch, and were called to the councils of the state as barons-by-tenure. In reply to a QUO WARRANTO, issued to the Earl of Surrey, in the reign of Edward I., he asserted that his ancestors had assisted William in gaining England, and were equally entitled to a share of the spoils. "It was," said he, "by their swords that his ancestors had obtained their lands, and that by his he would maintain his rights." The same monarch required the Earls of Hereford and Norfolk to go over with his army to Guienne, and they replied, "The tenure of our lands does not require us to do so, unless the king went in person." The king insisted; the earls were firm. "By God, sir Earl," said Edward to Hereford, "you shall go or hang." "By God, sir King," replied the earl, "I will neither go nor hang." The king submitted and forgave his warmth.
The struggle between the nobles and the Crown commenced, and was continued, under varying circumstances. Each of the barons had a large retinue of armed men under his own command, and the Crown was liable to be overborne by a union of ambitious nobles. At one time the monarch had to face them at Runnymede and yield to their demands; at another he was able to restrain them with a strong hand. The Church and the barons, when acting in union, proved too strong for the sovereign, and he had to secure the alliance of one of these parties to defeat the views of the other. The barons abused their power over the FREEMEN, and sought to establish the rule "that every man must have a lord," thus reducing them to a state of vassalage. King John separated the barons into two classes—major and minor; the former should have at least thirteen knights' fees and a third part; the latter remained country gentlemen. The 20th Henry III., cap. 2 and 4, was passed to secure the rights of FREEMEN, who were disturbed by the great lords, and gave them an appeal to the king's courts of assize.
Bracton, an eminent lawyer who wrote in the time of Henry III., says:
"The king hath superiors—viz., God and the law by which he is made king; also his court—viz., his earls and barons. Earls are the king's associates, and he that hath an associate hath a master; and therefore, if the king be unbridled, or (which is all one) without law, they ought to bridle him, unless they will be unbridled as the king, and then the commons may cry, Lord Jesus, pity us," etc.
An eminent lawyer, time of Edward I., writes:
"Although the king ought to have no equal in the land, yet because the king and his commissioners can be both judge and party, the king ought by right to have companions, to hear and determine in Parliament all writs and plaints of wrongs done by the king, the queen, or their children."
These views found expression in the coronation oath. Edward II. was forced to swear:
"Will you grant and keep, and by your oath confirm to the people of England the laws and customs to them, granted by the ancient kings of England, your righteous and godly predecessors; and especially to the clergy and people, by the glorious King St. Edward, your predecessor?"
The king's answer—"I do them grant and promise."
"Do you grant to hold and keep the laws and rightful customs which the commonalty of your realm shall have chosen, and to maintain and enforce them to the honor of God after your power?"
The king's answer—"I this do grant and promise."
I shall not dwell upon the event most frequently quoted with reference to the era of the Plantagenets—I mean King John's "Magna Charta." It was more social than territorial, and tended to limit the power of the Crown, and to increase that of the barons. The Plantagenets had not begun to call Commons to the House of Lords. The issue of writs was confined to those who were barons-by-tenure, the PATRICIANS of the Norman period. The creation of NOBLES was the invention of a later age. The baron feasted in his hall, while the slave grovelled in his cabin. Bracton, the famous lawyer of the time of Henry III., says: "All the goods a slave acquired belonged to his master, who could take them from him whenever he pleased," therefore a man could not purchase his own freedom. "In the same year, 1283," says the Annals of Dunstable, "we sold our slave by birth, William Fyke, and all his family, and received one mark from the buyer." The only hope for the slave was, to try and get into one of the walled towns, when he became free. Until the Wars of the Roses, these serfs were greatly harassed by their owners.
In the reign of Edward I., efforts were made to prevent the alienation of land by those who received it from the Norman sovereigns. The statute of mortmain was passed to restrain the giving of lands to the Church, the statute DE DONIS to prevent alienation to laymen. The former declares:
"That whereas religious men had entered into the fees of other men, without license and will of the chief lord, and sometimes appropriating and buying, and sometimes receiving them of gift of others, whereby the services that are due of such fee, and which, in the beginning, were provided for the defence of the realm, are wrongfully withdrawn, and the chief lord do lose the escheats of the same (the primer seizin on each life that dropped); it therefore enacts: That any such lands were forfeited to the lord of the fee; and if he did not take it within twelve months, it should be forfeited to the king, who shall enfeoff other therein by certain services to be done for us for the defence of the realm."
Another act, the 6th Edward I., cap. 3, provides:
"That alienation by the tenant in courtesy was void, and the heir was entitled to succeed to his mother's property, notwithstanding the act of his father."
The 13th Edward I., cap. 41, enacts:
"That if the abbot, priors, and keepers of hospitals, and other religious houses, aliened their land they should be seized upon by the king."
The 13th Edward I., cap. 1, DE DONIS conditionalitiis, provided:
"That tenements given to a man, and the heirs of his body, should, at all events, go to the issue, if there were any; or, if there were none, should revert to the donor."
But while the fiefs of the Crown were forbidden to alien their lands, the FREEMEN, whose lands were Odhal (noble) and of Saxon descent, the inheritance of which was guaranteed to them by 55 William I. (ANTE, p. 13), were empowered to sell their estates by the statute called QUIA EMPTORES (6 Edward I.). It enacts:
"That from henceforth it shall be lawful to every FREEMEN to sell, at his own pleasure, his lands and tenements, or part of them: so that the feoffee shall hold the same lands and tenements of the chief lord of the fee by such customs as his feoffee held before."
The scope of these laws was altered in the reign of Edward III. That monarch, in view of his intended invasion of France, secured the adhesion of the landowners, by giving them power to raise money upon and alien their estates. The permission was as follows, 1 Edward III., cap. 12:
"Whereas divers people of the realm complain themselves to be grieved because that lands and tenements which be holden of the king in chief, and aliened without license, have been seized into the king's hand, and holden as forfeit: (2.) The king shall not hold them as forfeit in such case, but will and grant from henceforth of such lands and tenements so aliened, there shall be reasonable fine taken in chancery by due process."
1 Edward III., cap. 13:
"Whereas divers have complained that they be grieved by reason of purchasing of lands and tenements, which have been holden of the king's progenitors that now is, as of honors; and the same lands have been taken into the king's hands, as though they had been holden in chief of the king as of his crown: (2.) The king will that from henceforth no man be grieved by any such purchase."
De Lolme, chap. iii., sec. 3, remarks on these laws that they took from the king all power of preventing alienation or of purchase. They left him the reversionary right on the failure of heirs.
These changes in the relative power of the sovereign and the nobles took place to enable Edward to enter upon the conquest of France; but that monarch, conferred a power upon the barons, which was used to the detriment of his descendants, and led to the dethronement of the Plantagenets.
The line of demarcation between the two sets of titles, those derived through the ANGLO-SAXON laws and those derived through the grants of the Norman sovereigns, was gradually being effaced. The people looked back to the laws of Edward the Confessor, and forced them upon Edward II. But after passing the laws which prevented nobles from selling, and empowering FREEMEN to do so, Edward III. found it needful to assert his claims to the entire land of England, and enacted in the twenty-fourth year of his reign:
"That the king is the universal lord and original proprietor of all land in his kingdom; that no man doth or can possess, any part of it but what has mediately or immediately been derived as a gift from him to be held on feodal service."
Those who obtained gifts of land, only held or had the use of them; the ownership rested in the Crown. Feodal service, the maintenance of armed men, and the bringing them into the field, was the rent paid.
The wealth which came into England after the conquest of France influenced all classes, but none more than the family of the king. His own example seems to have affected his descendants. The invasion of France and the captivity of its king reappear in the invasion of England by Henry IV., and the capture and dethronement of Richard II. The prosperity of England during the reign of Edward had passed away in that of his grandson. Very great distress pervaded the land, and it led to efforts to get rid of villeinage. The 1st Richard II. recites:
"That grievous complaints had been made to the Lords and Commons, that villeins and land tenants daily withdraw into cities and towns, and a special commission was appointed to hear the case, and decide thereon."
The complaint was renewed, and appears in Act 9 Richard II., cap. 2:
"Whereas divers villeins and serfs, as well of the great Lords as of other people, as well spiritual as temporal, do fly within the cities, towns, and places entfranched, as the city of London, and other like, and do feign divers suits against their Lords, to the intent to make them free by the answer of the Lords, it is accorded and assented that the Lords and others shall not be forebound of their villeins, because of the answer of the Lords."
Serfdom or slavery may have existed previous to the ANGLO-SAXON invasion, but I am disposed to think that the Saxon, the Jutes, and the Angles reduced the inhabitants of the lands which they conquered, into serfdom. The history of that period shows that men, women, and children were constantly sold, and that there were established markets. One at Bristol, which was frequented by Irish buyers, was put down, owing to the remonstrance of the Bishop. After the Norman invasion the name of Villein, a person attached to the villa, was given to the serfs. The village was their residence. Occasional instances of enfranchisement took place; the word signified being made free, and at that time every FREEMAN was entitled to a vote. The word enfranchise has latterly come to bear a different meaning, and to apply solely to the possession of a vote, but it originally meant the elevation of a serf into the condition of a FREEMAN. The act of enfranchisement was a public ceremony usually performed at the church door. The last act of ownership performed by the master was the piercing of the right ear with an awl. Many serfs fled into the towns, where they were enfranchised and became FREEMEN.