Landholding In England
by
Joseph Fisher
Part 1 out of 2
This etext was produced by Charles Franks, Robert Rowe and the
Online Distributed Proofreading Team.
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.
INTRODUCTION.
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.
JOSEPH FISHER.
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 savethat 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.
"LII.
"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.
The disaffection of the common people increased; they were borne
down with oppression. They struggled against their masters, and
tried to secure their personal liberty, and the freedom of their
land. The population rose in masses in the reign of Richard II.,
and demanded--
1st. The total abolition of slavery for themselves and their
children forever;
2d. The reduction of the rent of good land to 4d. per acre;
3d. The right of buying and selling, like other men, in markets and
fairs;
4th. The pardon of all offences.
The monarch acted upon insidious advice; he spoke them fair at
first, to gain time, but did not fulfil his promises. Ultimately
the people gained part of their demands. To limit or defeat them,
an act was passed, fixing the wages of laborers to 4d. per day,
with meat and drink, or 6d. per day, without meat and drink, and
others in proportion; but with the proviso, that if any one refused
to serve or labor on these terms, every justice was at liberty to
send him to jail, there to remain until he gave security to serve
and labor as by law required. A subsequent act prevents their being
employed by the week, or paid for holidays.
Previous to this period, the major barons and great lords tilled
their land by serfs, and had very large flocks and herds of cattle.
On the death of the Bishop of Winchester, 1367, his executors
delivered to Bishop Wykeham, his successor in the see, the
following: 127 draught horses, 1556 head of cattle, 3876 wedders,
4777 ewes, and 3541 lambs. Tillage was neglected; and in 1314 there
was a severe dearth; wheat sold at a price equal to L30 per
quarter, the brewing of ale was discontinued by proclamation, in
order "to prevent those of middle rank from perishing for want of
food."
The dissensions among the descendants of Edward III. as to the
right to the Crown aided the nobles in their efforts to make their
estates hereditary, and the civil wars which afflicted the nation
tended to promote that object. Kings were crowned and discrowned at
the will of the nobles, who compelled the FREEMEN to part with
their small estates. The oligarchy dictated to the Crown, and
oppressed and kept down the FREEMEN. The nobles allied themselves
with the serfs, who were manumitted that they might serve as
soldiers in the conflicting armies.
From the Conquest to the time of Richard II., only barons-by-
tenure, the descendants of the companions of the Conqueror, were
invited by writ to Parliament. That monarch made an innovation, and
invited others who were not barons-by-tenure. The first dukedom was
created the 11th of Edward III., and the first viscount the 18th
Henry VI.
Edward IV. seized upon the lands granted by former kings, and gave
them to his own followers, and thus created a feeling of uneasiness
in the minds of the nobility, and paved the way for the events
which were accomplished by a succeeding dynasty. The decision in
the Taltarum case opened the question of succession; and Edward's
efforts to put down retainers was the precursor of the Tudor
policy.
We have a picture of the state of society in the reign of Edward
IV. in the Paston Memoirs, written by Margaret Paston. Her husband,
John Paston, was heir to Sir John Fastolf. He was bound by the will
to establish in Caister Castle, Fastolf s own mansion, a college of
religious men to pray for his benefactor's soul. But in those days
might was right, and the Duke of Norfolk, fancying that he should
like the house for himself, quietly took possession of it. At that
time, Edward was just seated on the throne, and Edward had just
been reported to Paston to have said in reference to another suit,
that
"He would be your good lord therein as he would to the poorest man
in England. He would hold with you in your right; and as for favor,
he will not be understood that he shall show favor more to one man
to another, not to one in England."
This was a true expression of the king's intentions. But either he
was changeable in his moods, or during these early years he was
hardly settled enough on the throne always to be able to carry out
his wishes. This time, however, in some way or another, the great
duke was reduced to submission, and Caister was restored to Paston.
In 1465 a new claimant appeared; and claimants, though as
troublesome in the fifteenth as the nineteenth century, proceeded
in a different fashion. This time it was the Duke of Suffolk, who
asserted a right to the manor of Drayton in his own name, and who
had bought up the assumed rights of another person to the manor of
Hellesdon. John Paston was away, and his wife had to bear the
brunt. An attempt to levy rent at Drayton was followed by a threat
from the duke's men, that if her servants "ventured to take any
further distresses at Drayton, even if it were but of the value of
a pin, they would take the value of an ox in Hellesdon."
Paston and the duke alike professed to be under the law. But each
was anxious to retain that possession which in those days seems
really to have been nine points of the law. The duke got hold of
Drayton, while Hellesdon was held for Paston. One day Paston's men
made a raid upon Drayton, and carried off seventy-seven head of
cattle. Another day the duke's bailiff came to Hellesdon with 300
men to see if the place were assailable. Two servants of Paston,
attempting to keep a court at Drayton in their master's name, were
carried off by force. At last the duke mustered his retainers and
marched against Hellesdon. The garrison, too weak to resist, at
once surrendered.
"The duke's men took possession, and set John Paston's own tenants
to work, very much against their wills, to destroy the mansion and
break down the walls of the lodge, while they themselves ransacked
the church, turned out the parson, and spoiled the images. They
also pillaged very completely every house in the village. As for
John Paston's own place, they stripped it completely bare; and
whatever there was of lead, brass, pewter, iron, doors or gates, or
other things that they could not conveniently carry off, they
hacked and hewed them to pieces. The duke rode through Hellesdon to
Drayton the following day, while his men were still busy completing
the wreck of destruction by the demolition of the lodge. The wreck
of the building, with the rents they made in its walls, is visible
even now" (Introd. xxxv.).
The meaning of all this is evident. We have before us a state of
society in which the anarchical element is predominant. But it is
not pure anarchy. The nobles were determined to reduce the middle
classes to vassalage.
The reign of the Plantagenets witnessed the elevation of the
nobility. The descendants of the Norman barons menaced, and
sometimes proved too powerful for the Crown. In such reigns as
those of Edward I., Edward III., and Henry VI., the barons
triumphed. The power wielded by the first Edward fell from the
feeble grasp of his son and successor. The beneficent rule of
Edward III. was followed by the anarchy of Richard II. Success led
to excess. The triumphant party thinned the ranks of its opponents,
and in turn experienced the same fate. The fierce struggle of the
Red and White Roses weakened each. Guy, Earl of Warwick, "the king-
maker," sank overpowered on the field of Tewkesbury, and with him
perished many of the most powerful of the nobles. The jealousy of
Richard III. swept away his own friends, and the bloody contest on
Bosworth field destroyed the flower of the nobility. The sun of the
Plantagenets went down, leaving the country weak and impoverished,
from a contest in which the barons sought to establish their own
power, to the detriment alike of the Crown and the FREEMEN. The
latter might have exclaimed:
"Till half a patriot, half a coward, grown, We fly from meaner
tyrants to the throne."
The long contest terminated in the defeat alike of the Crown and
the nobles, but the nation suffered severely from the struggle.
The rule of this family proved fatal to the interest of a most
important class, whose rights were jealously guarded by the
Normans. The Liberi Homines, the FREEMEN, who were Odhal occupiers,
holding in capite from the sovereign, nearly disappeared in the
Wars of the Roses. Monarchs who owed their crown to the favor of
the nobles were too weak to uphold the rights of those who held
directly from the Crown, and who, in their isolation, were almost
powerless.
The term FREEMAN, originally one of the noblest in the land,
disappeared in relation to urban tenures, and was applied solely to
the personal rights of civic burghers; instead thereof arose the
term FREEHOLDER from FREE HOLD, which was originally a grant free
from all rent, and only burdened with military service. The term
was subsequently applied to land held for leases for lives as
contradistinguished from leases for years, the latter being deemed
base tenures, and insufficient to qualify a man to vote; the theory
being that no man was free whose tenure could be disturbed during
his life. Though the Liberi Homines or FREEMEN were, as a class,
overborne in this struggle, and reduced to vassalage, yet their
descendants were able, under the leadership of Cromwell, to regain
some of the rights and influence of which they had been despoiled
under the Plantagenets.
Fortescue, Lord Chief-Justice to Henry VI., thus describes the
condition of the English people:
"They drunk no water, unless it be that some for devotion, and upon
a rule of penance, do abstain from other drink. They eat
plentifully of all kinds of flesh and fish. They wear woollen cloth
in all their apparel. They have abundance of bed covering in their
houses, and all other woollen stuff. They have great store of all
implements of household. They are plentifully furnished with all
instruments of husbandry, and all other things that are requisite
to the accomplishment of a great and wealthy life, according to
their estates and degrees."
This flattering picture is not supported by the existing
disaffection and the repeated applications for redress from the
serfs and the smaller farmers, "and the simple fact that the
population had increased under the Normans--a period of 88 years--
from 2,150,000 to 3,350,000, while under the Plantagenets--a period
of 300 years--it only increased to 4,000,000, the addition to the
population in that period being only 650,000. The average increase
in the former period was nearly 14,000 per annum, while in the
latter it did not much exceed 2000 per annum. This goes far to
prove the evil from civil wars, and the oppression of the
oligarchy.
VI. THE TUDORS
The protracted struggle of the Plantagenets left the nation in a
state of exhaustion. The nobles had absorbed the lands of the
FREEMEN, and had thus broken the backbone of society. They had then
entered upon a contest with the Crown to increase their own power;
and to effect their selfish objects, setup puppets, and ranged
under conflicting banners, but the Nemesis followed. The Wars of
the Roses destroyed their own power, and weakened their influence,
by sweeping away the heads of the principal families. The ambition
of the nobles failed of its object, when "the last of the barons"
lay gory in his blood on the field of Tewkesbury. The wars were,
however, productive of one national benefit, in virtually ending
the state of serfdom to which the aborigines were reduced by the
Scandinavian invasion. The exhaustion of the nation prepared the
way to changes of a most radical character, and the reigns of the
Tudors are characterized by greater innovations and more striking
alterations than even those which followed the accession of the
Normans.
Henry of Richmond came out of the field of Bostworth a vistor, and
ascended the throne of a nation whose leading nobles had been swept
away. The sword had vied with the axe. Henry VII. was prudent and
cunning; and in the absence of any preponderating oligarchical
influence, planted the heel of the sovereign upon the necks of the
nobles. He succeeded where the Plantagenets had failed. His
accession became the advent of a series of measures which altered
most materially the system of landholding. The Wars of the Roses
showed that the power of the nobles was too great for the comfort
of the monarch. The decision in Taltarum's case, in the reign of
Edward IV., affected the entire system of entail. Land, partly
freed from restrictions, passed into other hands. But Henry went
further. He destroyed their physical influence by ridigly putting
down retainer; and in one of his tours, while partaking of the
hospitality of the Earl of Oxford, he fined him L15,000 for having
greeted him with 5000 of his tenants in livery. The rigid
enforcement of the laws passed against retainers in former reigns,
but now made more penal, strengthened the king and reduced the
power of the nobles. Their estates were relieved of a most onerous
charge, and the lands freed from the burden of supporting the army
of the state.
Henry VII. had thus a large fund to give away; the rent of the land
granted in knights' service virtually consisted of two separate
funds--one part went to the feudee, as officer or commmandant, the
other to the soldiery or vassals. The latter part belonged to the
state. Had Henry applied it to the reestablishment of the class of
FREEMEN (LIBERI HOMINES), as was recently done by the Emperor of
Russia when he abolished serfdom, he would have created a power on
which the Crown and the constitution could rely. This might have
been done by converting the holdings of the men-at-arms into
allodial estates, held direct from the Crown. Such an arrangement
would have left the income of the feudee unimpaired, as it would
only have applied the fund that had been paid to the men-at-arms to
this purpose; and by creating out of that land a number of small
estates held direct from the Crown, the misery that arose from the
eviction and destruction of a most meritorious class, would have
been avoided. Vagrancy, with its great evils, would have been
prevented, and the passing of the Poor laws would have been
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