LECTURE XXVIII.

The Saxons, though their lands in general were allodial, were not strangers to military benefices for life—The alterations introduced by William the Norman, as to the tenure of lands in England.

Though, in my last, I have delivered my opinion, that the lands of the Saxons were not feudal, but allodial, I would not be understood as if there were no lands held by them upon military service, different from the allodial I have already described. It is undeniable, that there was among them lord and vassal; that there were lands held by such military service as was performed abroad; where the bond of fealty subsisted between lord and tenant, and where the tenants were obliged to serve in person on horseback. But these were few; for the strength of the Saxon army lay in their infantry. Besides, such were not feudal inheritances, but benefices for life, for, in all the records remaining of them, there is not a word implying an estate that could descend, or a single trace of wardship, marriage, or relief, the necessary concomitants of such estates. What puts that out of all doubt, in my apprehension, is one of the laws of William himself, where he says it was he that granted lands in feudum, jure hæreditario, which words are added, by way of distinguishing the estates he granted from the military estates for life, in use before. The word feudum alone would have been sufficient, had that law been in use before, and the words jure hæreditario were added by way of explanation of feudum; and feudum is added by way of distinction from allodial inheritances[329].

When these military benefices began among the Saxons, I cannot say is determined, but shall offer a conjecture, that carries a great face of probability. That they were not coeval with the Heptarchy is certain; for none of the German nations had, at that time, fixed estates for life in their military holdings. What time, then, so probable as the days of Egbert, who had resided long in the court of Charlemagne, where these tenures were in use, and where he saw the benefit of them? Besides, this was the very time that a body of horse began to be wanted, who could move swiftly to encounter the Danes, then beginning their ravages, and whose practice it was to land in separate bodies, and to kill and plunder, until a superior force assembled, and then reimbarking, to commit the same devastations on some other defenceless part of the coast. But these kind of tenures, as I observed before, could be but few, as most of the lands were inheritances appropriated to particular families.

To come now to William. A single battle, wherein Harold and the flower of the nobility were slain, determined the fate of England. However, many of the great men survived, and the bulk of the nation were averse to his pretensions. A weak attempt was made to set up Edgar Atheling, the only prince remaining of the royal race, but the intrigues of the clergy, who were almost universally on the invader’s side (on account of his being under the protection of the pope, and having received from him a consecrated banner) co-operating with the approach of his victorious army, soon put an end to Edgar’s shadow of royalty. He submitted, as did his associates, and they were all received, not only with kindness but with many high marks of distinction. William, accordingly, was crowned with the unanimous consent of the nation, upon swearing to the laws of Edward the Confessor; and it must be owned he behaved, during his first stay, with the utmost equal justice and impartiality between the Normans and natives. But the continuing to act in that manner did not consist with his views, which were principally two; the first to gratify his hungry adventurers with lands, the next to subvert the English law, and introduce the feudal and Norman policy in lieu of it[330].

The first step he made there was no finding fault with. It was now allowed, that William’s title was legal from the beginning, and that Harold was an usurper, and all that adhered to him rebels. He made enquiry for all the great men that fell in battle on Harold’s side. Their lands he confiscated, and distributed, upon the terms of the Norman law, to his followers; but these were not half sufficient to satisfy the expectants, and the English were still too powerful, as he had pardoned all those who survived. He therefore returned to Normandy, carrying Edgar and the chief of the English nobility with him, under pretence of doing them honour, but in reality, that they might be absent while his views were carrying on; and in the mean time he left his scheme to be executed by his Normans, and those he had appointed his regents. I say his scheme, for his interest, to exalt one side and depress the other, on which he could not depend, almost forced him to this conduct. The oppressions, therefore, were so exorbitant in his absence, as must necessarily have driven a people to rebel, and for which a man of justice would think the real delinquents ought to be the persons punished, whilst the unhappy nation merited the freest pardon, for whatever they did when actuated by a despair, proceeding from the denial of justice. But that he himself was the immediate source of these distresses is evident from his temper, which was such, that no regents of his durst have acted as they did without his approbation. The Normans began by encroaching on their neighbours the English, nay with forcibly turning them out of their entire possessions. If these applied to the regents in the curia regis, there was no redress. If they retaliated the injuries they suffered, they were declared outlaws and rebels[331].

These proceedings threw the whole nation into a flame, and, had they had a leader of sufficient weight and abilities to head them, William, perhaps, might have been dethroned; but the right heir, and all the men he feared, were out of the kingdom. They produced, therefore, only ill-concerted, unconnected insurrections, headed by men of no considerable figure, provoked by private wrongs; and these being easily suppressed, afforded a fund of new confiscations, which he disposed of in the same manner as the former, and thereby spread the use of the feudal law further into several parts of England. However, though he did not spare the insurgents, nor punish his officers that had occasioned those commotions, he did not, as some have asserted, seize all the lands of England as his by right of conquest; for, when he came over, his court was open to the complaints of the English, and if any of them could undeniably prove, as indeed few of them could, that they had never assisted Harold, or been concerned in the late disturbances, they were restored to their lands as they held them before; as appears from the case of Edwin Sharrburn, and many others. By these means William obtained the first of his great ends, the transferring almost all the lands of England to his followers, and making them inheritances, descendible according to the Norman law.

But as to the inheritances that still remained in English hands, had he not proceeded somewhat farther, they would have gone in the old course, and been free from the burthen of feudal tenure. But how to alter this, and to subject the few allodial lands, as also the church lands, to the Norman services, was the question; for he had sworn to observe Edward’s laws. The alteration, therefore, must be made by the commune concilium, or parliament, and this he was not in the least danger of not carrying, in a house composed of his own countrymen, enriched by his bounty, and who were born and bred under the law he had a mind to introduce; and who could not be well pleased to see some of the conquered nation enjoy estates on better terms than themselves the conquerors. The pretence of calling this assembly, which was convened in the fourth year of his reign, was very plausible. The English had grievously and justly complained of the constant violation of the Saxon laws, and the only extenuation that could be made for this, and which had some foundation in truth, was, that the king and his officers were strangers, and not acquainted with that law. He therefore summoned this commune concilium, or parliament, to ascertain what the antient law was, and to make such amendments thereto, as the late change and circumstances of affairs required. And, for their instruction in the old law, which was but partly in writing, most of it customary, he summoned twelve men, the most knowing in the laws of England, out of each county, to assist and inform them what those laws were.

Accordingly, we find the laws of William the First are, in general, little other than transcripts of the Saxon laws or customs. However, there are two, which were intended to alter the military policy of the kingdom, to abolish the trinoda necessitas, and in its lieu, to make the lands of the English, and of the church liable to knights service, as the Normans lands were by his new grants, and thereby make the system uniform. His fifty second law is entirely in feudal terms, and was certainly drawn up by some person skilled in that law, for the purpose I have mentioned. It runs thus: Statuimus ut omnes liberi homines fædere & sacramento affirment, quod intra et extra universum regnum angliæ, Willielmo Domino suo fideles esse volunt, terras & honores illius ubique servare cum eo, & contra inimicos & alienigenas defendere [332].

I shall make a few remarks on the wording of this law; and first on the word statuimus. Wright[333] observes, that it being plural, implies that this was not by the king alone, but by the commune concilium, or parliament, for the stile of the king of England, when speaking of himself was for ages after in the singular number, and in the subsequent part he is plainly distinguished from the enactors of the law; for it is not mihi, or nobis fideles esse, but Willielmo Domino suo in the third person, nor, terras & honores meos or nostros servare, but terras & honores illius; and indeed, in the subsequent law I shall mention it is expressly said in effect, that the subjecting the free lands to knight service was per commune concilium. Secondly, the words liberi homines is a term of the feudal law, properly applicable to allodial tenants, who held their lands free from the military service that vassals were obliged to: And in this sense was it used in France also, from whence William came. In these words were included also, the men of the church, for as their lands were before subject to the trinoda necessitas, it was reasonable when that was abolished, they should be subject to this that came in the lieu of it. Fædere and sacramento affirment. Fædus is the homage, which, though done by the tenant only to the lord, was looked upon by the feudists as a contract, and equally bound both parties, as is sacramentum; as appears after the feudal oath of fealty; and they are placed in the order they are to be done, homage first and then the oath of fealty. Willielmo Domino suo, not regi, not the oath of allegiance as king, but the oath of fealty from a tenant to a landlord, for the lands he holds. Fidelis is the very technical word of the feudal law for a vassal. But the words intra & extra universum regnum angliæ are particularly to be observed: For these made a deviation from the general principles of the feudal law, and one highly advantageous to the kingly power. By the feudal law no vassal was obliged to serve his lord in war, unless it was a defensive war, or one he thought a just one, nor for any foreign territories belonging to his lord, that was not a part of the seignory of which he held; but this would not effectually serve for the defence of William. He was duke of Normandy, which he held from France, and he knew the king of that country was very jealous of the extraordinary accession of power he had gained by his new territorial acquisition, and would take every occasion, just or unjust, of attacking him there; in short, that he must be almost always in a state of war. Such an obligation on his tenants, of serving every where, was of the highest consequence for him to obtain; nor was it difficult, as most of them had also estates in Normandy, and were by self-interest engaged in its defence.

The next law of his I shall mention is the fifty-eighth, which enjoins all who held lands by military service, and some others, to be in perpetual readiness. It runs to this effect: “We enact and firmly command, that all earls and barons and knights and servants, servientes, (that is the lower soldiers, not knighted, who had not yet got lands, but were quartered on the abbeys,) and all the freemen, (namely the Saxon freeholders, and of the tenants of the church, which now was subjected to knights service) of our whole aforesaid kingdom, shall have and keep themselves well in arms, and in horses, as is fitting, and their duty; and that they should be always ready, and well prepared to fulfil and to act whensoever occasion shall be, according to what they ought by law to do for us from their fiefs and tenements; and as we have enacted to them by the commune concilium of our whole kingdom aforesaid; and have given and granted to them in fee in hereditary right.” The great effect of this law was to settle two things, not expressly mentioned in the former; the first to shew the nature of the service now required, knight service on horseback; and the other, to ascertain to all his tenants, Saxons as well as Normans, the hereditary right they had in their lands, for if that had not been done by this law, as now all lands were made feudal, and their titles to them consequently to be decided by that law, they might otherwise be liable to a construction, according to its principles, that any man, who could not shew in his title words of inheritance, which the Saxons generally could not, was but tenant for life[334].

This general law then put all on the same footing, and gave them inheritances, as they had before, but of another nature, the feudal one, and consequently, made them subject to all its regulations. From this time, and in consequence of these laws, the maxim prevailed, that all lands in England are held from the king, and that they all proceeded from his free bounty, as is strongly implied in the word concessimus; and hence some, indeed many, have imagined that the conqueror seized all the lands of England, as his by right of conquest, and distributed them to whom, and on what terms he pleased. With respect to the greater part, which he gave to his Normans, this is true; but it appears from the records of his time, that it was not universally the case. The laws I have mentioned so changed the nature of the inheritances, which he did not seize, that they were subject to all the same consequences, as if he had so done; though in truth, with respect to the Saxons, he did not dispossess them. It was but a fiction in law.

I have mentioned that he made the lands of the church liable to knights service, in lieu of the military expedition they were subject to before; but this is to be understood with some limitation. For where the lands of an ecclesiastical person, or corporation, were barely sufficient to maintain those that did the duty, they, for necessity’s sake, were exempted; and the Saxon expedition being abolished, the contribution thereto fell with it, and they became tenants in frankalmoine, or free alms. But where an ecclesiastical corporation was rich, and able, besides their necessary support, according to their dignity, they were, by these laws, under the words liberi homines, subjected to the new ordained military service, as they had been before to the old, and according to their wealth, were obliged to find one or more knights or horsemen. If they were obliged to furnish as many as a baron regularly was, they were barons, as all the bishops and many of the great abbots were; and, as barons, sat in the commune concilium; whereas, before, the clergy in general sat in parliament, as well as the laity, not as a separate body, nor invested with separate rights, but both clergy and laity equally concurred in making laws, whether relative to temporal affairs or spiritual; though, with respect to the latter, it may well be inferred, from the ignorance of the times, that they had almost the entire influence. But after this time the clergy became a separate body from the laity, had distinct interests also, and a separate jurisdiction; nay, I may say, became, in some degree, a separate branch of the legislature, by the right they claimed, and exercised, of making canons to bind laity as well as clergy[335]. But the explaining this would carry me too far at present, so I shall defer it to my next lecture.

In the mean time, I shall just recapitulate the prodigious alteration, as to the properties of landed estates in England, introduced by the two laws of the conquerors, I have mentioned, from what was their nature and qualities before that time. They had been the absolute proprieties of the owner, (I speak in general,) they could be aliened at pleasure, they could be devised by will, were subject to no exactions on the death of the owner, but a very moderate settled herriot paid by the executor. In the mean time, on the death of the ancestor, the heir entered without waiting for the approbation of the lord, or paying any thing for it; and his heir, if there was no will, was all the sons jointly. No wardship, or marriage, was due or exacted, if the heir was a minor. All these, by the feudal customs being introduced, were quite altered. Lands could no longer be aliened without the consent of the lord. No will or testament concerning them availed any thing. The heir had no longer a right to enter into his ancestor’s inheritance immediately on his death, until he (not the executor) had paid a relief (and that not a moderate one) and been admitted by the lord. The heir, likewise, was not all the sons jointly, but one, first, such as the lord pleased to prefer; at length it became settled universally in favour of the eldest; and the fruits of tenure, wardship, marriage and relief (for the Saxon herriot was, as I have mentioned, a different thing) came in as necessary attendants of a feudal donation.

No wonder, then, that it has been said William introduced a new law, the Norman one. He certainly did so as to landed estates; but this, as I have observed before, by the consent of his parliament, who, being Normans, were as well pleased with the change as himself; but it is not true with respect to the other old Saxon laws, which did not clash with the design of introducing the military feudal system. Them he confirmed, and his feudal laws were called only emendations. However, certain it is, his secret design was to eradicate even the Saxon, the laws he had, in pursuance of his coronation oath, confirmed, and that he took many steps thereto; which though they had not the full effect he intended, wrought considerable changes. What these were, and the consequences of them, shall be the subject of the next lecture.