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last of the Anglo-Saxon kings, and to con-
sider the acquisition of the crown by William
as the destruction of independence and nation-
ality, English independence and nationality ;

protest and I must needs here pause, and substitute

against

Angio- henceforward the true and antient word English



for the unhistorical and conventional term An-
glo-Saxon, an expression conveying a most false
idea in our civil history. It disguises the con-
tinuity of affairs, and substitutes the appearance
of a new formation in the place of a progressive
e fic evolution. Granted, for who would deny it ?
that the Norman Conquest did, in its first and
immediate consequences, give a great shock to
existing constitutions, that it divested a large
class of the great landholders of their supe-
riority, yet it must be considered rather as an
event than an overwhelming catastrophe. In-
deed, the most striking proof of the exaggerated
opinion prevailing with respect to the subver-
sions resulting from the Norman Conquest, is



ON ENGLAND EXAGGERATED. 597

afforded by comparing England with other kin-
dred nations, whose soil was not wasted by the
sword of the stranger. Let us look back for
this comparison, not to the age of the Planta-
genets, not to the age of the Houses of York and
of Lancaster, not to the age of the first of the
Stuarts, but to a time comparatively of yester-
day, the reign of good Queen Anne.

Now at this period there were several nations
closely allied to the antient English, nay in a
manner the same people, who had never been
conquered by the stranger. Such was the state
of Denmark. Here are Danes, fair-haired and
blue-eyed, in unbroken, uumingled descent from
the Hackarls of Canute, Angles and Jutes, tilling
the very soil which belonged to Hengst and Horsa.
Here has been no hostile invasion, but what has
become of the language of the Asi ? In the dialect
of comparatively modern periods, our archaism
is still more remarkable. In the Lord's Prayer,
as translated by Pope Adrian, in the year one
thousand one hundred and fifty-six, there is per-
haps only a single word which in the year one
thousand seven hundred and three can be said
to have been obsolete ; and our Nicholas Break-
spear, still so plain and intelligible, was exactly
the contemporary of the warlike historian Snorro
Sturleson ; he to whom we owe the preservation of
the [traditions] of the Saxons of the North; but to
whom even Olaus, Rubeck, or Bartholimus could
not have spoken without an interpreter. Upon



598 PARALLEL OF DENMARK.

this wide and very interesting subject, the
mutations of our speech, I will not at pre-
sent enlarge. I shall only remark, that, in
certain states of human society, there is a
tendency to enrich the nomenclature and
simplify the structure of language, some-
times arising from what, in common, though
rather disagreeable, phrase, is termed the " na-
tional mind," and sometimes from external
causes ; and that both were beginning to be in
operation in England before the Norman Con-
quest. But the comparative circumstances of
Denmark and of England will assist in enabling
us to understand how great an alteration might
have taken place in our national [character]
(of which language is so forcible a witness),
supposing the great event about which we are
discoursing had never come to pass.
changes in With respect to government and laws and

Danish law.

institutions, the departure from the antient com-
monwealth was perhaps greater even than in
language. The Gothic Nemda was the subject
of an archaeological essay. Hard servitude had
fallen upon the descendants of the Bondes, the
tillers of the soil, who in the age of Harold
Harfager raised their bold helmetted heads
around the sovereign in the Landzthing. Jarls
were unknown in name and in deed. In short,
with the exception of some portions of the
criminal law, and rules regulating the rights of



SAXON LAW PRACTICALLY PRESERVED. 599

property, the whole platform (to use the word
in its Elizabethan sense) of the Commonwealth,
since the fifteenth century, has been as com-
pletely changed as if the Christian of Olden-
burgh had gained the throne sword in hand. I
doubt if they can shew any court, any insti-
tution, any essential portion of the state, which
derived its regular succession from an earlier
time.

4. But in England, even so late as the re- u n r 8t ? t u tio
cent period which I have named, after all our
conquests and civil wars, after our reformation,
after our revolution, there still existed, as it
were, whole strata continuing only slightly al-
tered. In our political constitution, much we
can trace ; for example, how the real territorial
authority of Siward, Earl of Northumberland,
gradually waned away into the title which the
Percy claimed. The courts of the burgh, the
hundred, and the shire had not changed, even
in name. The whole customary tenure of land,
over all the length and breadth of the island,
was, and indeed is, purely and sincerely English.
If any one of my readers should chance to
renew his holding under the Bishop of Wor-
cester, it will be gebooked to him for three lives,
exactly as if good Wulstane was to receive the
fine. Of aldermen it is unnecessary to speak :
everybody knows their venerable antiquity ; and,
indeed, throughout the whole of our munici-



600 SAXON LAW SURVIVES.

pal institutions, the vitality of the old English
customs and constitution was truly wonderful.
Bring an ejectment for lands in the parish of
Clapham or Chelsea, and Judge Holt would at
once have non-suited you for not laying the
venue in the Anglo-Saxon town. If the lord

[cir s .1'845.j of the manor had, or indeed has to vindicate his
franchise, he presses into his service, or more
truly perhaps into the service of his attorney,
sac and soc, infangthief and outfangthief, and
whatsoever else he can find in King Ethelred's
charter. And if the Hlafod who now holds the
possession of [the Saxon owner], were to exert
his rights, the inhabitants of Manchester Square
would be compelled to appear at the court of the
Lite as in the earliest age.

I have attempted the comparison contained
in the preceding paragraphs, in order to shew
how small is the necessity of ascribing the great
mutations which unquestionably took place in
the laws and government of the country, to
national subjugation and hostile influence : a
much shorter road of shewing the error of those

other proofs, who ascribe such a radical, such an overwhelm-
ing change to the Conquest, would have been
simply to appeal to the evidence. In the code
bearing the title which I doubt not will be per-
fectly intelligible to the reader, of " Les leis et
les custumes que li Reis William granted al
pople de Engleterre apres la cunquest de la
terre ; iceles meimes que li Reis Edward sun



WILLIAM EEIGNED CONSTITUTIONALLY. 601

x

cusin tint devant lui ;" and in the custumal
ascribed to Henry Beauclerc, but probably
even of later date, we have an assured testi-
mony that as far as direct and positive legisla-
tion is concerned, William effected the smallest
possible innovation : and in [regard to] the as-
sertion, that, in the very frame of his laws, he
made a distinction between the Normans and
English, [we may appeal to the fact, that they
were received by the] nation, not only without
reluctance, but with zealous joy ; and thus the
very means by which William was enabled to
accomplish the Conquest, prevented him from
ruling otherwise than as an English king.

5. It is most certain that, after the acces-
sion of the Plantagenets, we find a very great
similarity between the laws of Normandy and the
laws of England. Both belonged to one active
and powerful sovereign : one system of admin- iaw. Nc
istration prevailed. It was after one and the
same course of business that the money was
counted out upon the chequered table, on either
side of the sea. The bailiffs in the Norman
baillages passed their accounts just as the
sheriffs to whom the bailliwicks of the shires
were granted in England ; and the brieves by
which the king administered the law, whether
in the kingdom or the duchy, are most evidently
germane to each other. In all these circum-
stances, I can find the most evident and cogent
proof that a great revolution was effected, not



602 ENGLISH LAW NOT DERIVED FROM NORMAN.

by William, but by Henry Plantagenet. Where
he found his precedents, where his councillors,
we know not, and in which country the new
system originated, which, in a manner, they
held in common, we know not. Documentary
evidence would go a great way in deciding the
t question. At present none satisfactory has been
' discovered by the researches of the antiquary.
Glanville, the English justiciar, affords the ear-
liest precedents of the writs " de morte ante-
cessoris," and "de nova disseisina." Howard,
the Norman jurist, publishes our Littleton and
Bracton and Hela, as the most authentic monu-
ments which he can find of the antient laws of
the French ; and the traditions of Normandy
even attributed the formation of that which in
the reign of Philippe Auguste was their national
code, the " Grand Coutumier," to the equity and
wisdom of Edward the Confessor. Nothing in
all this amounts to proof that Henry II., King
of England, legislated for the Duchy of Nor-
mandy ; but at least it shews, that, from other
causes than the immediate conquest, to which
it is usually ascribed, the uniformity may have
arisen.

6. Probably most of my readers have been
expecting, in the course of the preceding pages,
to hear much upon some subjects which hold so
conspicuous a station in our usual, I may almost
say our conventional ideas of mediaeval history ;



THE FEUDAL SYSTEM. 603

I mean feudality and chivalry. If, using old-
fashioned allegorical language, we were to say
that Feudality and Chivalry, according to the
popular notions of them, are phantoms who
must be driven away before we can enter the
Palace of Truth, we should hardly be using too
strong language. A great living authority upon
these subjects perhaps the greatest he Avho
whilst I write these lines, is at the head of the
councils of the Sovereign to whom, under Pro-
vidence, the guidance of the destinies of France
is confided, has said, and most truly, that never
did the feudal system of regular subordination
subsist in the forms assigned to it by jurists.
Feudal society, in its supposed entirety, is an
imaginary structure raised only by the fancy
of the learned, and of which the materials only,
incoherent and broken, have been found lying
on the soil.

* * * *

In considering the developments of the Con-
quest, the first question which always presents
itself to the mind, is the state and condition of
the English nation under their new masters ;
and this is inseparably connected with the sup-
posed establishment of feudal tenures by the Fendal
Conqueror. This is a very large question, which
we must treat in this place on the smallest scale.
A dull subject, many persons would say, but
which must be discussed, on account of the



tenures.



604 COMPLETENESS OF THE FEUDAL

prominent, and, we must add, we believe erro-
neous position which it takes, according to the
usual views of mediaeval history.

But notwithstanding all the assertions which
historians have made, we have never been able
to satisfy ourselves that such a feudal system
ever existed. It reminds us of the feudal castle,
wttaicOT, rendered so familiar to our eyes and mind by

pleteness.

worthy Captain Grose, of antiquarian and fa-
cetious memory ; and which, multiplied and
adopted in our encyclopedias and educational
books, becomes the ideal form of architectural
chivalry; and truly never was any representa-
tion better entitled to the old-fashioned inv : et
delin : in the corner, the dungeon tower in the
centre, the inner bailey round the dungeon, the
outer baileys round the inner, all neat and con-
centric as the crust of a pie. Now, though you
might find such a square dungeon tower in many
places, the inner bailey in half-a-dozen, and the
outer bailey perhaps in a single example, still
whoever forms his ideas upon this type, will
have adapted them to a model which never ex-
isted. The reason why such a castle never could
have existed is this, that every real fortification
was necessarily adapted to the site which it was
to defend; and the plan adopted to guard the
coast of Dover, would, of necessity, be entirely
different from that employed in the plain of
Yincennes ; and therefore, whatever similarity
of principle there may have been in the so-



SYSTEM THEORETICAL. 605

called feudal institutions, they became infi-
nitely varied by the nations amongst whom
they were adopted ; being, in fact, a transmis-
sion of Roman jurisprudence and Roman in-
stitutions, combined with the usages of Teutonic
tribes.

Without entering therefore into details, we
shall venture to point out the two great errors
which render the views commonly expressed
entirely incorrect. The first is confounding the
feudal tenures of land with what is called feudal



Feudal
tenures are



government ; for however paradoxical it may
appear, there was no government in mediaeval
Europe founded upon feudality. The other is
in the extreme exaggeration of the state of the
common people, and the ascribing it to the bar-
baric invasions. So far as their influence ex-
tended, the lot of the Coloni was alleviated and
not aggravated by the transfer of the Roman
authority to the new race of masters. With
respect to England, with which we are more
immediately concerned, we believe, that, pre-
vious to the Conquest, all land imposed upon
the owner the duty of contributing to the de-
fence of the state, according to its value. As Landtennr

after the

the Conqueror found the land, so he gave it ; Conquei
and after a good deal of uncertainty, over-ex-
actions on the part of the crown, demanding
more than was due, and refusals on the part of
the landholders to give what was really due, the
territorial system settled, after the accession of



tion.



606 TREATMENT OF THE ENGLISH.

the House of Plantagenet, into a more definite
form.

7. It cannot be said, that, upon the face
of William's laws, there was any systematic
attempt to treat the English with insults or in-
dignity as a race; for he declared that every
Frenchman who had paid scot and lot in the
time of the Confessor, should continue subjected
to the English law. But, leaving the entire
framework of the English law untouched, he
kept the administration of it wholly in his own
hands, acting either in his own person or by
those who, responsible to him alone, exercised
his authority. He made a complete difference
between the rich and the poor : none of his
barons or tenants could be punished for any
crime except by his permission. They might
commit incest or adultery or robbery or mur-
der with impunity : no one could meddle with
the them un i ess William chose. This denial of jus-
tice he effected by a complete restriction upon
all the authority of the Church. For the greater
portion of such crimes could only be restrained
by excommunication, or ecclesiastical censure,
and no bishop was permitted to excommunicate
or to censure, unless by his leave and license.
The first impression which this statement makes
upon the modern mind, is that the secular courts
were, nevertheless, open to the suitor. But the
answer is, that these courts were completely
guided by the King's arbitrary will, and that



WILLIAM AND THE CLERGY. 607

the ecclesiastical tribunals were the only ones
in which any degree of independence could be
found. In all criminal jurisdiction, his hand
fell as heavily upon the Normans as upon the
English. There was no privilege of nation al-
lowed. The English might give more offence ;
but both were equally crushed by his heavy
hand.

The power which he exercised of nominating "'
the bishops, deprived the national legislature of
any independence which it possessed. The
bishops were his own men, more even than the
earls or the barons ; and his restraint of eccle-
siastical liberty extinguished any species of
national liberty. When the bishops were as-St y to
sernbled in council, he would not permit any
statutes or canons to be propounded by the
archbishop, unless, having previously approved
of the same, they were entirely conformable to
his will. Therefore, no reform, whether in man-
ners or morals, or in the extensive branch of
jurisprudence, which could alone emanate from
these councils, could be effected, unless conform-
ably to his inclinations, and to suit his interests.
The papal power, so far as it could be exercised
in Britain, could extend no further than William
chose. No Pope was recognized in Britain, not
even Hildebrand himself, unless by William his
election and choice was approved. No papal >d r opc a :
Bull to be executed, unless sanctioned by royal
authority : in other words, William, the Basil eus

VOL. III. R R



608 WILLIAM'S INDEPENDENCE OF ROME.

of Britain, assumed and exercised the imperial .
power ; and in this he most evidently felt and
saw how needful it was, according to his scheme j
of authority, to resist the efforts which Hilde-

Hildebrand.

brand was making for the general liberties of
the Christian community. Had the liberty of
election been restored to the English sees ; had
the power of the papal see in punishing siinon;
and corruption, or in removing from the epis-
copate those unworthy to exercise its duties,
been suffered to be exerted, William's autocracy
would have been at an end.
unimportant The only direct innovation in the shape of

change in

English law. | aw ^ a ff ec {jng the rights of his subjects, is an
ordinance imposing certain regulations as to the
mode of deciding criminal cases by wager of
battle. This has been considered, more espe-
cially by recent writers, as placing the English-
man and the Frenchman upon unequal terms.
It would require a far deeper knowledge of the
actual practice of the Anglo-Saxon law (I em-
ploy this term unwillingly, but for the purpose
of preventing misapprehension) than we shall
ever possess, to determine whether there was
really any unfairness or inequality ; but, at all
events, if this right did belong, as a patrimonial
law, to his Norman subjects, he could not well
deprive them of it ; and, at all events, it speedily
became obsolete, and we cannot find even a trace
of it beyond his reign.

8. I have already noticed the popular opinion



FEUDAL LAW; RESUMED. 609

William introduced into England the feudal
law. We are told, by the most popular of our
\istorians, that he found this system already
established in France and in Normandy, and that
feudality was the foundation both of the stability
and the disorders of most of the mediaeval govern-
^ents. This opinion involves the proposition that
. e " feudal system" was established on the Con-
tinent, and was not established in England. The
observations which I have made on this subject
on other occasions, will enable the reader to judge
whether it be well founded or not.

It is, however, somewhat remarkable that the
many who have adopted this theory almost im-
plicitly, never stop to enquire how it happened
that Britain, containing the same elements of
population and jurisprudence as the rest of
Western Christendom, and more particularly
France and Germany, should not have possessed
the same law. The Anglo-Saxons and the Lom-
bards were close neighbours in their original
seats in Germany ; the Salic Franks and the
Ripuarians were the borderers of the Jutes and
Saxons; and if the feudal law arose, as Mon-
tesquieu says, and as Hume, no doubt, believed,
in the forests of Germany, how did it happen
that, in the occupation of England, it was left
behind ? Still more remarkable is it, that no
one should have been startled at the total want
of evidence. With respect to England, what
William found, that he kept ; and not only aro

R R 2



new.






610 NO FEUDAL TENURES

we destitute of any evidence whatever to shew
that he made any change in the tenure of land,
but we have the strongest evidence to the con-
trar y* -^ a ^ e Domesday, the great record, which
change. was fa es t a bli s h the relations between the King
and his landholders those lands, conferred, as
Hume tells us, with the reservation of stated
services and payments, on the most considerable
of his adventurers ; and you will not find any
one service or payment reserved, except the
pecuniary payments, the Danegeld, which had
been rendered in the Anglo-Saxon age. If more
land was brought into cultivation, more was paid :
if less, less. Domesday, which was to fix all
the territorial rights of the crown, is wholly
silent upon the subject.

9. That the rendering of a military service
for lands held of the Sovereign, a usage derived
from the Romans, existed in Britain long before
the Conquest, I have elsewhere shewn. That this
was retained by William, when the same lands
passed to his soldiery or followers, is in the very
nature of things. Whatever obligation the laud
was liable to "tempore Regis Edwardi" it was
equally liable to " temp&re Regis Wittielmi;"
and in this manner alone can we explain a fact
which otherwise might be perplexing, the total
absence of any direct allusion to military tenure
in the great record of Domesday. In support
of the rights of the crown resulting from the
tenure of land, Domesday shews nothing. It



INTRODUCED BY WILLIAM. 611

only establishes a negative, and that in a very
remarkable manner. Hugh Lupus, we arc
thereby informed, holds the earldom by the a
sword, as freely as the King holds by his crown.
So also, without doubt, did, at this era, the
several Lords Marchers. Matters altered en-
tirely when we have overleaped the reign of
Henry Plantagenet; but we are speaking of
the rights or rather no rights of the respective
parties before the generalizations of the law.
The hereditary descent of the "Laen Lands' 1
continued, as before the Conquest, a customary
right of renewal to the son of his father's
tenancy, which could not be enforced, but
which, in the ordinary course of affairs, could
not be denied.

It is verv certain that when our system of Later

> traditions

military tenures was fully established, in the*"
reign of Henry III., it was a received opinion,
popular in the nation, and an axiom in the
courts of justice, that thirty-two thousand
knights' fees had been created by the Con-
queror ; but at that period there was a wise
officer of the Exchequer, one Alexander de
Swereford, also Archdeacon of Salisbury, who,
in the exercise of his duties, wished to find a
certain account thereof; but, on seeking evi-
dence, he could find none. Rolls or records
of the age of the Conqueror, save and except
that Domesday which we have, could he not
discover. Nigel, Bishop of Ely, treasurer to



tenures.



612 OBSCURITIES OF OUR

King Henry Beauclerc, he so deeply learned in
all the science of the Exchequer, knew nothing
of it, neither had Richard, the Bishop of London,
he who had fully expounded the business of the
Exchequer, stated anything concerning it ; and,
therefore, he comes to, the conclusion that when
Henry Fitz-Einpress required, as we shall af-
terwards find, acknowledgments from all the
tenants in capite of what was due, he was other-
wise ignorant of the origin and amount of the
rights of the crown ; and whatever other in-
ferences may be drawn from this very remark-
able statement, we cannot refuse the conclusion
that there was no one written document testify-
f ing to the creation of military tenures ; and that,
when we find them afterwards established, they
were a development of customary usages : some
gradually reduced into regularity by the deci-
sions of courts of justice, others by compromise
between the subject and the crown.

It was brought as an accusation against
William, that he had much infringed upon the
liberties of the Church, by exacting military
service from the prelates ; that is to say, adopt-
ing the terms of a subsequent period, converting
frank alinoigne into military tenure. He does
appear to have acted arbitrarily ; and, as we
know from Domesday, to have allowed portions
of the Church property to be taken away from
its rightful owners ; but, for portions of the
Church lands, a military service was certainly



MILITAEY TENURES. 613

due in the Anglo-Saxon age : and when we find c *v?, rch

military

the military tenures reduced into a regular sys- *



Online LibraryFrancis PalgraveThe history of Normandy and of England (Volume 3) → online text (page 38 of 41)