Chapter XIII: Front Matter (13)

The Saxon lands were, likewise, subject to what they called _trinoda necessitas_, the three knotted obligation. The first was, furnishing a foot soldier; the second, which was not in the allodial lands abroad, was _arcis constructio_ the building and keeping in repair castles and forts, where the king, for the public good, ordered them to be erected; and lastly, _pontis constructio_ the building and repairing of bridges. As to furnishing carriages, the Saxon freemen were exempted; these being supplied, in that constitution, by the lower tenants in ancient demesne; or the king had a right to seize any man’s carriages by his purveyors, and use them upon paying for them. This right of purveyance of carriages, and of timber, and of provisions for the king’s household, which was intended for the king’s benefit, and by which no loss was to accrue to the subject, as he was to be paid the value, became, in the hands of the greedy purveyors, an occasion of great grievances; those officers seizing, often more than was wanted, often where nothing was wanted, merely to force the proprietor to a composition of money on restoring them. The manner of payment, too, became very oppressive. The rates were fixed at first at the due value, but as the rate of money changed, and the prices of things rose, it came to be under the half, and as it was not paid for on the spot, but by tickets on the treasurer, the owners, were frequently put to more trouble and expence in attendance than the value of their demand. This the purveyors well knew, and therefore turned their office into an engine of extortion. Many were the proclamations issued by the king; many the acts of parliament made to regulate it; But the evil was inveterate, and proved very heavy even under the best princes. The complaints of these oppressions were as great under Elizabeth as under her successor James, and indeed, the evil was so inveterate, that nothing but cutting it up by the roots, the destroying purveyance itself, could cure it[325].

But to return to the military duty done by the Saxons in general for their lands. In the first place, then, they served as foot soldiers, and not on horseback, and in compleat armour, as the feudal tenants were obliged. Again, the feudal tenants attended not but when called upon, whereas, the Saxons had regular times of meeting and mustering, though not summoned, in order to see that the men were well trained, and properly armed. But the great difference lay in this, that no particular person was bound to military duty, in consideration of his tenure in the lands. The lands themselves were liable. Every hide of land found a man, whether it was in the hands of one, or more persons. There was then no personal attendance, and, consequently, no commutation for it. The hide of land supported its soldier, while he continued fighting in his own county; but if in another, he was to be maintained either by that county, or the king; whereas, the military tenants, by the feudal law, were obliged to serve forty days at their own expence, wherever the king pleased, if the war was a just, or a defensive one; and indeed, as William the Conqueror modelled it, if the war was even unjust, or offensive. These differences, added to what I have already observed, concerning their lands not being escheatable for felony, being alienable, and being devisable by will, I think, shew plainly that, though the lands were subject to military service, it was upon grounds and principles very different from the feudal ones, and that they were rather in the nature of the allodial lands on the continent.

As to _Herriots_, which Coke and his followers insist much upon, as being _reliefs_, they also, when thoroughly considered, will, perhaps, be found to be of a different nature. A Herriot was a title the landlord had from his tenants, and the king, as supreme landlord, from his, of seizing, the best beast of his dead tenant, or his armour, if he was a military man. These being due upon the death of the tenant, certainly bore some resemblance to the reliefs on the continent, and are in king Canute’s law, which was written in Latin, called by the name of _relevatio_. To shew what they were in that time, the _relevatio_, or Herriot of an earl, was eight horses, four saddled, four unsaddled, four helmets, four coats of mail, eight lances, eight shields, four swords, and two hundred marks of gold; of the king’s thane four horses, two saddled, two unsaddled, two swords, four lances, four shields, his helmet and coat of mail, and fifty marks of gold; of the middling thane, a horse with his furniture, with his arms. But, then, Spelman justly observes, that these were not paid by the heir, as a relief to the lords, to entitle him to enter on the inheritance. The heir had the lands immediately and was not obliged to defer his entry till he had paid them, as he was his relief by the feudal law, and by the law of England after the conquest. Nay, they were not paid by the heir at law, but by the executor or administrator, as a perquisite out of the tenant’s personal fortune[326].

However, William the Conqueror, finding these perquisites in use, and that in Latin they were called _relevationes_, took advantage thereof, and as the forfeited lands he bestowed on his Normans were given upon the terms, and with the same burthens as lands on the continent, so were the reliefs he exacted from such in the same manner, made payable by the heir, not the executor; and as to the unforfeited lands, which remained to the Saxons, and were very inconsiderable in number, he, in the manner I shall shew in the next lecture, converted them, into real fiefs, such as were then in use in France; from whence the reliefs came, likewise, to be exacted from the heir, and to be considered as redemptions of the inheritance, which, upon the principles of the feudal policy, could not be entered upon by the heir till the relief was paid. This alteration it was not in the Saxon landholders power to oppose, on the account before-mentioned; nor, indeed, was the burthen on the heir such, if no consequences were to be apprehended from it, as deserved opposition; for William fixed the reliefs at a certainty, at the same rate, or with very little addition, as the Herriots were in Canute’s law.

But experience soon shewed what effects might follow from the construction of Norman judges, at the devotion of a king, upon the word _relevium_ being used, and its becoming payable by the heir, instead of the executor; his son and successor insisted that reliefs were by the feudal law arbitrary, and looked upon his father’s limiting them as a void act, that could not bind his successors. He, accordingly, exacted arbitrary and excessive reliefs both from the Norman and Saxon landholders in England, which exasperated both equally against him; for though the reliefs in France were, by no law, as yet reduced to a certainty, yet by custom they were to be reasonable, and not to be merely at the will and discretion of the king or lord; in consequence of which he was, on some occasions, forced to depend almost entirely, in his wars with Normandy, on the mercenary army of the lower English, who had no property; and had his reign continued much longer, it is extremely probable he would have felt severely for the oppressions he laid his military tenants of both nations under. But he dying in ten years, Henry was obliged, before he was elected, to swear to observe the laws of Edward the Confessor, which he did, with such emendations as his father the Conqueror had made; and accordingly, as to _reliefs_ he faithfully observed his oath; but it being inconvenient for the heir, who was at a call to perform military duty, to be obliged to pay his relief in arms, which he might want on a sudden emergency, it was therefore, generally commuted for money. However, there being no settled rate fixed, at which this commutation should be regulated, this also was made an engine of oppression in John’s reign, until it was finally fixed at a certain sum of money, according to the different ranks of the persons, by _Magna Charta_[327].

As to the last argument, of the _Oath of fealty_ being taken by the Saxons, it is the weakest of all. An oath of fealty taken by a feudal tenant, was to his _lord_, whether king or not. It was merely as tenant to him of land, and in consideration of such, and consequently the proprietors of land only were to take it. The oath the Saxons took, which is likened to this, was to the king, as king not as landlord, and not at all in consideration of land; for every male person above the age of twelve years was obliged to take this oath among the Saxons, whether he had lands or not. In truth, it was no more than an oath of allegiance to the king, as king, which was common in all kingdoms, and not peculiar to those where the feudal maxims prevailed[328].

Hence I think I have some liberty to conclude, though I do it with due deference, as the greatest masters in the antient laws and records of England have been divided in this point, that the very reasons urged to prove that lands were held in the Saxon times as feudal inheritances, prove rather the contrary, and that they were, in the general I mean, of the nature of the allodial lands on the continent.

In my next I shall speak of the alterations introduced by the conqueror, both as to the tenure of lands in England, and as to the administration of justice, which were so remarkable, as to deserve to be considered with the strictest attention, as they laid the foundation for the great alterations that have followed since.

LECTURE XXVIII.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LECTURE XXIX.

_The alterations introduced by William, as to the
administration of justice—The Judges of the Curia Regis are
appointed from among the Normans—The county courts decline—The
introduction of the Norman language—The distinction between
courts of record, and not of record—The separation of the
spiritual and temporal courts—The consequences of this measure._

William, by altering the nature of land estates, and the conditions upon which they were held, had proceeded a good way in his second capital design, the introduction of the Norman, and the abolishing of the Saxon law. And farther than that, it was not proper nor consistent with his honour, who had sworn to Edward’s laws, to proceed openly. However he formed a promising scheme for sapping and undermining the Saxon law by degrees. First, he appointed all the judges of the _curia regis_, from among the Normans, persons fond of their own law, ignorant of the English, and therefore incapable, even if they had a mind, to judge according to it.

Before his time this court only meddled with the causes of the great lords, or others that were of great difficulty, but now it was thought proper to discourage the county courts, and to introduce most causes originally into the superior court; and for this there was a reasonable pretence, from the divisions and factions between the two nations and the partialities that must ever flow from such a situation of affairs. The ancient laws of England had been written, some in the Saxon, some in the Latin tongue, and the laws of William, and of many of his successors, were penned in the latter language. But in the _curia regis_ all the pleadings henceforward were entered in the Norman tongue, the common language of his court, as were also, all the proceedings therein, until the time of Edward the Third. This introduced the technical law terms and with those came in the maxims and rules of administering justice belonging to that people, which gradually, wherever they differed from, superseded the English. Hence proceeded the great affinity I may say, identity, between the antient law of Normandy, as set forth in the _coutumier_ of that country, and the law of England, as it stood soon after the conquest.

The analogy, however, did not arise from this alone. Though England borrowed most from Normandy, yet, on the other hand, Normandy borrowed much from England. William, for the ease of his people, who had occasion to frequent his court, or had suits in the _curia regis_, established schools for instructing persons in this language, and obliged parents of substance to send their children thither, which had the consequence of abolishing the old Saxon tongue, and forming a new language, from the mixture of both[336].

This introduction of a new language, together with the exaltation of the _curia regis_ and the consequent depression of the county courts, introduced, as I apprehend, the distinction between the _courts of record_, and _not of record_, and made the county courts considered of the latter kind. Courts of record are such whose proceedings are duly entered, which, at that time, was to have been done in the Norman tongue, and which proceedings are of such weight, as, unless reversed, for ever appearing from the record, can never be gainsaid or controverted. Now, to allow such a privilege to the proceedings of the inferior courts, the county ones, where the suitors were judges, and where, besides, the proceedings were in the English language, would have been contrary to the policy of that time, and would have tended, rather to the confirmation than depression of the old law. The spiritual courts, also, are not allowed to be courts of record, and that, I presume, because they were antiently a part of the county courts, and separated from them, as I shall shew presently in this reign, and therefore could have no greater privilege than the court from which they were derived. However some inferior courts, such as the _tourn_, and the leet, were allowed to be courts of record, and that, I conceive, both for the benefit of the realm, and the profit of the king; for these were criminal courts, where public offences were punished, and therefore should have all weight given them, and where the king’s forfeitures and fines for crimes were found.

I have observed before, that the courts, in the Saxon times, were mixed assemblies, where the bishop and sheriff presided, and mutually assisted each other, and where the bishop, I may add, had a share in the amerciaments and fines. But in this reign the spiritual and temporal courts were separated by William, a thing which afterwards was of bad consequence to many of his successors, but was, at the time, very serviceable to the views he then had. This was certainly done partly to oblige the pope, who had espoused his title, and at this time was setting up for the universal lord of churchmen, though, in after times, they carried their pretensions much higher[337].

One great engine the popes set on foot to attain the power they aimed at, was to make a distinction between _clergy_ and _laity_, to have the matters relating to the former, as well the merely spiritual as the temporal rights they had acquired, cognizable only in their own jurisdictions; and, to preserve the distinction stronger, to forbid their interfering in the temporal courts, upon pretence of their time being taken up in spiritual exercises, and particularly, that it suited not the piety and charity of a clergyman, even by his presence, to countenance the proceeding to sentence of death, or the mutilation of limbs. Many were the laws they made for this purpose, upon motives of pretended piety; and the circumstances and practices of the times contributed greatly to their success. The emperors, kings, and great lords, had the nomination to bishoprics, and other benefices, as their ancestors had been the founders, and their lands were held from them. But shameful was the abuse they made of this power. Upon pretence of the clergy being their beneficiary tenants, according to the principles of the feudal law, they exacted reliefs, and arbitrary ones from them before investiture, or, to speak in plain terms, they sold them on Simoniacal contracts to the highest bidder, as the Conqueror’s son William did afterwards in England; so that the profligate and vicious were advanced to the highest dignities, while the conscientious clergy remained in obscurity; nay, if they could get no clergyman to come up to their price, they made gifts of the title and temporalities to laymen, nay, to children; it was a matter of little concern that there was no one to do the spiritual office.

Such practices, (and they were too common) gave just and universal offence to all sober persons, so that the popes were generally applauded for their aiming at the reformation of the evils, and for the endeavouring, by their decrees, to reform the morals of the corrupt clergy, and to restore an elective manner of conferring benefices, though their real design was first to become the protectors of the clergy, next, their lords and masters, and then, by their means, to tyrannize over the laity; a plan which they carried into execution with too much success. This plan was in the height of its operation in William’s reign. The foundation of it had been laid before, as I observed, in the many distinctions made between clergy and laity, and the prohibiting the first, except some great ones, from meddling with secular affairs, or tribunals. This reparation, however, had not yet taken place in England, and it is not a wonder that William, who had peculiar views of his own in it, as I shall observe, thought it reasonable to oblige his benefactor the pope, and to conform the constitution of this church and nation to that of France, where the clergy were a separate body.

The private views of the king were twofold, the first arose merely from his personal character, his avarice. By the bishop’s ceasing to be a judge in the temporal courts, he lost his share of the mulcts or fines imposed therein, and in consequence the king’s two-thirds of them were encreased. But his other view lay deeper. To comprehend this, we must remember how great was the ignorance of those ages. Scarce a man, except a clergyman, could read or write, insomuch that being able to read was looked upon as a proof of being in orders. Many even of the greatest lords could not write their names, but signed _marks_; and from this ignorance it was that proceeded the great weight our law gives to _sealing_ above _signing_ any instrument, and that sealing is what makes it a man’s deed. It followed from hence that the laity must be grossly ignorant in point of the laws. Their knowledge could extend no farther than as they remembered a few particular cases, that fell under their own observation; whereas the clergy had the benefit of reading the written laws, and consulting the proceedings thereon, in the rolls of the courts of justice, and they were the only lawyers of the times; insomuch that it became a proverb, _nullus clericus nisi causidicus_.

What method then could so effectually answer the king’s end of making the Saxon law fall into oblivion, which he could not openly abolish, after having solemnly sworn to observe it, as the removing from the courts of justice those persons who only knew it, and could oppose any innovation his Norman ministers should attempt to introduce. This policy, however, as artfully as it was laid, had not its full effect; for many of the clergy, unwilling to lose so gainful a trade, appeared still in these courts in disguise, as laymen, and at this time it is very probably conjectured that that ornament of the serjeant at law’s dress, the _coiff_, was introduced, and for this very purpose of hiding the tonsure, which would have shewn them to be clerks. This their attendance, in some degree, frustrated the scheme, and many of the Saxon laws, such especially as were repeated in William’s, kept their ground, but many more were forgotten.

I mentioned that one motive of William’s to separate the jurisdictions, was to oblige the pope, to whose favour he owed much, yet it ought to be observed to his honour, that he maintained the independency of his kingdom with a royal firmness. Pope Gregory, commonly called Hildebrand, who was the first that ventured so far as to excommunicate sovereign princes, as he did the emperor no less than four different times, conceiving William could not sit securely on his throne without the aid of his see, demanded of him homage for the kingdom of England, and the arrears of Peter’s pence; grounding his claim of superiority on his predecessor’s consecrated banner, and that Peter-pence was the service by which the kingdom was held from the holy see. But he found he had a man of spirit to deal with. William allowed the justice of the demand of Peter-pence, and promised to have it collected and paid, not as a tribute, but as a charitable foundation, as in truth it was, to support a college of English students at Rome, for the benefit of the English church. As to _homage_, he absolutely refused it, and declared he held his crown from God alone, and would maintain its independence; and to convince the pope he was in earnest, he issued an edict forbidding, on their allegiance, his subjects to acknowledge any person for sovereign pontiff, until he had first acknowledged him. So bold a step convinced Gregory, who was already sufficiently embroiled with the emperor, that this was no fit time to push things; and so he dropped his project, but without retracting it; for the court of Rome never did in any case formally recede from a pretension it had once advanced.

The consequences of the separation of the ecclesiastical from the temporal jurisdiction were many. It naturally occasioned controversies concerning the respective limits, and these gave rise to the _curia regis_ interposing in these matters, and, by prohibitions, preventing one from encroaching upon the other. The great contest was concerning suits for benefices, or church livings, which the clergy contended were of _spiritual_, and the king’s courts, of _temporal_ cognizance. And this, indeed, was the great question that, in those days, divided the Christian world abroad. However in England, the clergy were, at length, foiled in this point. But a much greater evil arose from this separation. It is a maxim of all laws, that no man should be twice punished for the same crime, and this just maxim the clergy, in favour of the members of their own body, perverted in a shocking manner. If a clerk committed murder, rape, or robbery, the bishop tried and condemned him to penance; and this sentence was made a pretence of not delivering him to the temporal courts, to be tried for his life. This was one of the great disputes concerning the constitutions of Clarendon, in Henry the Second’s time, between him and archbishop Becket[338].

At length, about Henry the Third’s reign, the limits between the several jurisdictions were pretty well settled, and by subsequent statutes, and judicial resolutions, are confined to the respective limits they are now under. Indeed, since the Reformation, as the credit of the canon law has declined, on account of the dilatory proceedings, and the use of excommunication upon every trifling contempt, the reputation of the ecclesiastical courts has greatly fallen, and prohibitions are now issued, in many cases, where they could not have been granted in former times. Yet, if we examine accurately, we shall find that these great complaints, which, it must be owned, are in the general just, namely, of dilatoriness and excommunications, proceeded from the separation of the two courts by William. Before, when the courts sat together, the sheriff assisted the bishop, and by his temporal power compelled the parties to appear, and submit to the sentence, if they were contumacious against excommunication. But when they were separated, the bishop was left to his spiritual arms, merely, excommunication; and as the consequences of such a sentence were, in the superstitious times, looked on as very dreadful, and are really severe in law, several intermediate processes and notices were necessary before they proceeded to that extremity; and this gave opportunity to litigious persons to disobey every order the court made in a cause, until they came to the brink of excommunication, and that way, by repeated contumacies, to spin out causes to an unconscionable length. And the want of other arms compelled these courts, on very trifling contempts, to enforce their orders by excommunication, which, it must be owned, according to its primitive and right use, should be reserved only for flagitious immoralities[339].

Another evil consequence that flowed from this separation of these courts, was, that the pope cunningly got his, the canon law, introduced into the ecclesiastical courts, which made him the head of the church, introduced appeals to him, and in effect, robbed the king of so many subjects in ecclesiastical affairs, whereas, before, though there might be references in cases of difficulty for advice to Rome, there were no appeals thither. The _curia regis_ was to reform ecclesiastical judgments, and the ecclesiastical, as well as temporal jurisdiction, was the king’s.

Another evil consequence, and it is the last I shall mention, of this alteration, was the setting up two legislatures, if I may say so, in the kingdom. In the antient time all laws were made in the same assembly, but now, the clergy being separated from the laity, when a parliament was called, the business became divided; ecclesiastical matters, and the taxes on the clergy, were handled in the convocation, as temporal matters, and the taxes on the laity, were in parliament. This contributed to the further clashing of jurisdictions. For it must be owned the convocation exceeded their powers, and made canons about things merely temporal; which, however, they contended to be spiritual; and sometimes contrary to the express law of the land, nevertheless they by the superstitious and ignorant, who knew not the distinction between such things, were generally obeyed, and hence from such submission it is, that, by custom, in several places, tythes are payable of things that are not tythable at common law.

The right of the convocation’s canons binding the laity in spiritual matters was never doubted in the times of popery, nay till Charles the First’s time, if they had the approbation of the king, who was the head of the church, it was the general opinion, except among the Puritans. But since that time their jurisdiction is settled on a reasonable footing. Their canons bind no man, spiritual or lay, in temporal matters. They bind no layman in spiritual matters; but they bind the clergy in spiritual matters, provided that no right of the laity is thereby infringed. As for instance, there is a canon forbidding clergymen to celebrate marriage out of canonical hours. This doth not bind even a clergyman, for if it did, it would strip the laity of their right of being married at any hour. However it is to be considered whether a canon of the convocation is a new ordinance, or only a repetition of the old ecclesiastical law. If the latter, it binds all men, spiritual and lay, not as a canon, but as the law of the land.

LECTURE XXX.

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

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

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

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

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

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