LECTURE XXX.

Robert Duke of Normandy, and William Ruffus, dispute the succession to the Conqueror—The English prefer the latter—The forest laws—The cruelty and oppressions of William—The advancement of Henry, the Conqueror’s youngest son, to the crown of England—He grants a charter—The nature of this charter—His dispute with Anselm concerning Investitures—The celibacy of the clergy—State of the kingdom under Stephen.

William the Conqueror left three sons, Robert, William and Henry. The eldest, Robert, according to the established rules of the French fiefs, succeeded in Normandy, and on account of his primogeniture laid claim also to the crown of England; but what right that gave him, might in those days, well be a question. In the Saxon times the rule was to elect a king out of the royal family, and the election generally fell on the eldest son, though not universally; for the line of Alfred reigned in prejudice to the descendants of his two elder brothers. Edred succeeded to his brother Edmund, in prejudice of Edmund’s two sons; again, on Edred’s death, his son was excluded, and Edmund’s eldest son resigned; and lastly Edward the Confessor was king, though his elder brother’s son was living. So that priority of birth was rather a circumstance influencing the people’s choice, than what gave an absolute right of succession[340].

Another thing, it might be pretended, should determine this point, that is, as William claimed the crown through the will, as he said, of the Confessor, he also had not a power to bequeath the crown. When, therefore, he was making his will he was applied to on this head, but the approach of death seems to make him acknowledge that his only just title was his election, for though he hated his son Robert, and was extremely fond of William, he refused to dispose of it by will. He only expressed his wish that William might succeed, and dispatched him to England, with letters to Lanfranc archbishop of Canterbury, requesting him to influence the election in his favour, and he accordingly was crowned. Indeed, it seems a little odd that William, whose bad qualities were universally known (for he had not one single virtue, except personal bravery) should be preferred to Robert, who, with that virtue, possessed all the amiable virtues of humanity.

That the native English should prefer any one to Robert is not to be wondered at, as he had, on all occasions, expressed the highest aversion to them, but they had no influence in the matter and it appears, at first view, the interest of the English lords, most of whom had also estates in Normandy, to be subject to one monarch, and not have their estates liable to confiscation, on taking part with one of the brothers against the other. But the interest of Lanfranc and the clergy, added to his father’s treasure, which he had seized, and distributed liberally, bore down all opposition; and indeed, it is probable that Robert’s disposition, which was well known, operated in his disfavour; for his extreme indolence and prodigality, and his scruples of using improper means for attaining the most desirable ends (whereas William was extremely active and would stick at nothing) made it easy for persons of any penetration to see in whose favour the contest between the two brothers must end[341].

We have little to say of the laws in his time, for he regarded no laws, divine or human, ecclesiastical or temporal. He chose for judges and courtiers the most profligate persons he could find. And one of the great oppressions his people laboured under was the extending, and aggravating the forest laws. The forests were large tracts of land, set apart by his father for the king’s hunting out of the royal demesnes; and consequently William his father had by his own authority, made laws, and severe ones, to be observed in these districts for the preservation of the game, and erected courts to try offenders, and trespassers in his forests. The great intention of these courts was to fleece his subjects, who were as fond of hunting as their sovereign, by mulcts and fines; and in truth, these were the only oppressions his countrymen, the Normans, suffered under the Conqueror.

But Ruffus flew out of all bounds. He introduced the lawing, as it is called, the Hamstringings of Dogs; nay, he made a law, by his own authority, to make the killing of a deer capital. On pretence of this law he seized many of the great and rich, confined them for years, without bringing them to tryal, until he forced them to compound, and to give up the better part of their estates. Not content with harrassing the laity, he laid sacrilegious hands on the church revenues. Whenever a rich abbey, or bishoprick, fell vacant, he laid his hands on the temporalities, kept them vacant for years, as he did that of Canterbury four years; and even, when he was prevailed upon to fill them, he openly set them to sale in his presence, and gave them to the best bidder. However, in a violent fit of sickness, he promised to reform, and did till he recovered his strength, when his reformation vanished. The remonstrances of his clergy, or the pope, had no effect with him; and, indeed, the circumstances of the times were favourable. For as there were two popes, one made by the emperor, the other, by the Romans, who disowned the imperial authority in that respect, William acknowledged neither, and each was afraid to drive him into his adversaries party, by proceeding to extremities.

These enormities raised him so many enemies among his subjects, of all kinds, that Robert had a strong party, and an insurrection was begun in his favour, which William, profiting of Robert’s indolence, easily suppressed, and then invaded him in Normandy, and was near conquering it, as, by a sum of money, he detached the king of France from the alliance, if he had not been invaded by Scotland, in favour of Robert. He patched up, therefore, a peace with him, ratified by the barons on both sides, the terms of which were, that the adherents of each should be pardoned, and restored to their estates, and the survivor succeed to the other[342].

Thus there was a legal settlement of the crown of England made, which ought to have taken place, but did not. For William being accidentally killed in hunting, while Robert was absent in Italy, on his return from the holy war, Henry the youngest son, took the advantage, and seizing his brother William’s treasure, was crowned the third day, after a very tumultuous election, the populace threatening death to any that should oppose him. The reason of their attachment to him was, that he was, by birth, an Englishman, and therefore, they hoped for milder treatment from him than they had met from his two Norman predecessors. Besides he had promised a renewal of the Confessor’s laws, with such emendations as his father had made. And in pursuance of this promise, as soon as he was crowned, he issued a charter, containing the laws as he now settled them, and sent copies of it to every cathedral in his kingdom.

These laws were, as to the bulk of them, the old Saxon constitutions, with the addition of the Conqueror’s law of fiefs, and some things taken from the compilations of the canon law. However, with respect to the feudal law, he, in many instances, moderated its severity. With respect to reliefs, he abolished the arbitrary and heavy ones which William had exacted, and restored the moderate, and certain ones, which his father had established. With respect to the marriage of his vassal’s children, he gave their parents and relations free power of disposing of them, provided they did not marry them to his enemies, for obviating which, his consent was to be applied for, but then he expressly engaged not to take any thing for his consent; and the wardships of his minor tenants he committed to their nearest kindred, that they might take care of the persons and estates of the ward, and account with him for the profits during the minority, upon reasonable terms. He even, in some degree, restored the Saxon law of descents, and permitted alienation of lands. For if a man had several fiefs, and several sons, the eldest had the principal one, on which was the place of habitation, only, and the rest went among the sons, as far as they would go; and if a man purchased or acquired land (as land might be alienated by the feudal law, with the consent of the superior lord,) such acquisitions by the laws of Henry, he was not obliged to transmit to his heirs; but might alien at pleasure[343].

This mitigation of the former law was very agreeable to his people, both English and Normans. The former were pleased to see the Saxon law so nearly restored, and the latter, harrassed with the oppressions of William, were glad to have the heavy burthens of their tenures lightened; and indeed, began, by degrees, to relish the old English law, and to prefer it to their own.

To attach the bulk of his subjects to him still more strongly, he took another very prudent step. He married Maud the daughter of the king of Scotland, by Edgar Atheling’s sister, so that in his issue the blood of the Norman and Saxon kings were united. But still he was not firmly settled, until the affairs of the church, and the right of lay persons granting investitures of church livings were settled. He intended to proceed in the same manner that his father and brother had done. He accordingly named persons to the vacant bishopricks, and recalled Anselm, archbishop of Canterbury, who had lived in exile during the latter part of William’s reign, on account of the then famous dispute of lay investitures. But Anselm, adhering to the canons of a council held at Rome, refused to consecrate the bishops named by the king, and also to do him homage for the temporalities of his own see, which the king required before he gave him possession.

Henry, afraid of detaching from himself, and attaching to his brother Robert, the pope and so powerful a body as the bulk of the clergy, with so popular and high spirited a priest at their head, was obliged to propose an expedient, that he should send ambassadors to the pope, to represent that these canons were contrary to the antient law and customs of the nation, and to endeavour to obtain a dispensation for not complying with the canons; and that, in the mean time, Anselm might enter into the temporalities of his see. This proposal was accepted. But, though, the king’s desiring to do that by dispensation, which he had a right to do by law, was tacitly giving up his cause, the pope knew his own strength, and Henry’s weakness too well, to grant this favour. He insisted on the canons being executed, which produced another quarrel between the king and archbishop. The archbishop, attended by other bishops his adherents, went to Rome to complain. The king sent new ambassadors, but all in vain. The pope proceeded to threaten excommunication, which, in those days of superstition, would have tumbled Henry from the throne, so he was obliged to submit, and come to a composition. He renounced the nomination and investiture per annulum & baculum, restored the free election of bishops and abbots to the chapters and convents, which, as the pope was judge of the validity of such elections, was, in effect, almost giving them to him; and, in acknowledgment of his antient right of patronage, was allowed the custody of the temporalities during the vacancy; was allowed to give the congé d’elire, or license to proceed to election, without which they could not elect, and was allowed to receive homage from the elect, upon the restitution of the temporalities.

Thus the pope gratified the king with the shadow, and gained to himself and the church the substance, and thus, at this time ended, that contest in England, which had cost so many thousand lives abroad, between the pope and emperors. Henry, however, retained a considerable influence in the elections, for before he issued his congé d’elire, he generally convened his nobles and prelates, and with them recommended a proper person, who generally was chosen; and this the pope, for the present, suffered to pass[344].

I have little else to observe touching the laws in this reign, save what pertains to the celibacy of the clergy. The popes, aiming at detaching the clergy entirely from secular interests, had made many canons against their marrying, and all the eloquence of some centuries had been employed in recommending celibacy. These canons, however, had not their full effect in England; for very many of the secular clergy were still married. Anselm, in a synod he assembled, enacted a canon against them, commanding them to dismiss their wives, upon pain of suspension, and excommunication, if they presumed to continue to officiate. Cardinal de Crema was afterwards sent legate by the pope to England, where, in a general assembly of the clergy, he re-enacted the canons against their marriages, and presiding in a lofty throne, uttered a most furious declamation against such a sinful practice, declaring it a horrid abomination, that priests should rise from the arms of a strumpet, and consecrate the body of Christ. And yet the historians assure us, that, after consecrating the eucharist in that assembly, he was found that very night in the stews of Southwark, in bed with a prostitute; which made him so ashamed, that he stole privately out of England[345].

Henry, though he had subdued Normandy, and kept his brother Robert in prison, was not without uneasiness as to the succession to his dominions; for Robert’s son was an accomplished prince, and protected by the king of France, whereas his own bore but a worthless character. However, to secure the succession to him, he assembled the barons of Normandy in Normandy, and those of England in England, and prevailed on them to take the oath of allegiance to him as such. But he being soon after drowned, the king, in hopes of male issue, took a second wife, and after three years fruitless expectation, he turned his thoughts to making his daughter Maud his heir, and did accordingly prevail on his nobility to take the oath of allegiance to her as successor. But one of the steps he took for securing the throne to her, in fact, defeated his scheme. He knew that a woman had never yet sat on an European throne, that Spain, which was the only nation that admitted persons to reign in the right of females, had never suffered the female herself, but always set up her son, if he was of a competent age; if not, her husband. As to the circumstances of his own family, his grandson was an infant, and neither he nor his daughter had confidence in her husband. He knew that this oath was taken against the general bent of his people, and that little dependance could be had on it when he was gone, so easy was it to get absolution. His chief dependance was on the power and influence of his natural son Robert, who, indeed, did not disappoint him, and of his nephew Stephen, and of his brother Roger, bishop of Salisbury, on all of whom he heaped wealth and honours.

Stephen, thus advanced, began to lift his eyes to the crown. He, as well as his cousin Maud, was a grandchild of the Conqueror, and descended from the Saxon kings; and he had the personal advantage of being a male, and bearing an extraordinary good character. By his ability and generosity he had become exceedingly popular, and his brother Roger secured the clergy in his interest. Immediately on his uncle’s death, he seized his treasure, which he employed as Henry had done William’s, and having spread a report that Henry, on his death bed, had disinherited Maud, and made him his heir, he was crowned in a very thin assembly of barons. Sensible of his weakness, he immediately convoked a parliament at Oxford, where, of his own motion, he swore, not only to rule with equity, but that he would not retain vacant benefices long in his hands, that he would sue none for trespassing in his forests, that he would disforest all such as had been made by the late king, and abolish the odious tax of Danegelt; concessions, which, with the pope’s approbation of his title, so satisfied the people, that all the lords and prelates who favoured Maud, and had kept aloof, and among them Robert her brother, came in, and swore allegiance to him as long as he kept these engagements; from which conditional oath they expected he would soon release them, and indeed they did all they could to provoke him to it. This bait taking, and he having disobliged his brother and the clergy, Maud’s friends rose in her favour; and made the kingdom for many years a field of blood[346].

In one of these battles Stephen was taken, and Maud was universally acknowledged; but her insufferable haughtiness, her inflexible severity to her captive, and her haughty refusal of the city of London’s request, to mitigate her father’s laws, and restore the Saxon, so alienated the people from her, that she was forced to fly from London, and arms were again taken up for Stephen. Her brother, who was the soul of her cause, being soon after taken prisoner, was exchanged for Stephen, and he dying soon after, Maud was forced to leave the kingdom to her competitor. However, Stephen continuing still embroiled with the clergy, her son Henry, in a few years after, invaded England, and was joined by multitudes; but some noblemen, who loved their country, mediated a peace, and at last established it on the following terms; that Stephen should reign during life; that Henry should succeed him, and receive hostages at the present for the delivery of the king’s castles to him on Stephen’s death; and that, in the interim, he should be consulted with on all the great affairs of the kingdom; and this agreement was ratified by the oaths of all the nobility of both sides. In this treaty no mention was made of Maud’s title, though she was living[347].