Chapter XXVIII: Appendix: II (2)

The escheats were a great branch both of power and of revenue, especially during the first reigns after the Conquest. In default of posterity from the first baron, his land reverted to the crown, and continually augmented the king's possessions. The prince had indeed by law a power of alienating these escheats; but by this means he had an opportunity of establishing the fortunes of his friends and servants, and thereby enlarging his authority. Sometimes he retained them in his own hands; and they were gradually confounded with the royal demesnes, and became difficult to be distinguished from them. This confusion is probably the reason why the king acquired the right of alienating his demesnes.

But besides escheats from default of heirs, those which ensued from crimes, or breach of duty towards the superior lord, were frequent in ancient times. If the vassal, being thrice summoned to attend his superiors court, and do fealty, neglected or refused obedience, he forfeited all title to his land [f]. If he denied his tenure, or refused his service, he was exposed to the same penalty [g]. If he sold his estate without licence from his lord [h], or if he sold it upon any other tenure or title than that by which he himself held it [i], he lost all right to it. The adhering to his lord's enemies [k], deserting him in war [l], betraying his secrets [m], debauching his wife, or his near relations [n], or even using indecent freedoms with them [o], might be punished by forfeiture. The higher crimes, rapes, robbery, murder, arson, &c., were called felony; and being interpreted want of fidelity to his lord, made him lose his fief [p]. Even where the felon was vassal to a baron, though his immediate lord enjoyed the forfeiture, the king might retain possession of his estate during a twelvemonth, and had the right of spoiling and destroying it, unless the baron paid him a reasonable composition [q]. We have not here enumerated all the species of felonies, or of crimes by which forfeiture was incurred: we have said enough to prove, that the possession of feudal property was anciently somewhat precarious, and that the primary idea was never lost, of its being a kind of FEE or BENEFICE. [FN [f] Hottom. de Feud. Disp. cap. 38. col. 886. [g] Lib. Feud. lib. 3. tit. 1; lib. 4. tit. 21, 39. [h] Id. lib. 1. tit. 21. [i] Id. lib. 4. tit. 44. [k] Id. lib. 3. tit. 1. [l] Id. lib. 4. tit. 14, 21. [m] Id. lib. 4. tit. 14. [n] Id. lib. 1. tit. 14, 23. [o] Id. lib. 1. tit. 1. [p] Spellm. Gloss. in verb. FELONIA. [q] Ibid. Glanville, lib. 7 cap. 17.]

When a baron died, the king immediately took possession of the estate; and the heir, before he recovered his right, was obliged to make application to the crown, and desire that he might be admitted to do homage for his land, and pay a composition to the king. This composition was not at first fixed by law, at least by practice: the king was often exorbitant in his demands, and kept possession of the land till they were complied with.

If the heir were a minor, the king retained the whole profit of the estate till his majority; and might grant what sum he thought proper for the education and maintenance of the young baron. This practice was also founded on the notion, that a fief was a benefice, and that while the heir could not perform his military services, the revenue devolved to the superior, who employed another in his stead. It is obvious, that a great proportion of the landed property must, by means of this device, be continually in the hands of the prince, and that all the noble families were thereby held in perpetual dependence. When the king granted the wardship of a rich heir to any one, he had the opportunity of enriching a favourite or minister: if he sold it, he thereby levied a considerable sum of money. Simon de Mountfort paid Henry III. ten thousand marks, an immense sum in those days, for the wardship of Gilbert de Umfreville [r]. Geoffrey de Mandeville paid to the same prince the sum of twenty thousand marks, that he might marry Isabel, Countess of Gloucester, and possess all her lands and knights' fees. This sum would be equivalent to three hundred thousand, perhaps four hundred thousand pounds in our time [s]. [FN [r] Madox's Hist. of the Exch. p. 223. [s] Madoxs Hist. of the Exch. p. 322.]

If the heir were a female, the king was entitled to offer her any husband of her rank he thought proper; and if she refused him, she forfeited her land. Even a male heir could not marry without the royal consent; and it was usual for men to pay large sums for the liberty of making their own choice in marriage [t]. No man could dispose of his land, either by sale or will, without the consent of his superior. The possessor was never considered as full proprietor: he was still a kind of beneficiary; and could not oblige his superior to accept of any vassal that was not agreeable to him. [FN [t] Ibid. p. 320.]

Fines, amerciaments, and oblatas, as they were called, were another considerable branch of the royal power and revenue. The ancient records of the exchequer, which are still preserved, give surprising accounts of the numerous fines and amerciaments levied in those days [u] and of the strange inventions fallen upon to exact money from the subject. It appears that the ancient kings of England put themselves entirely on the footing of the barbarous eastern princes, whom no man must approach without a present, who sell all their good offices, and who intrude themselves into every business that they may have a pretence for extorting money. Even justice was avowedly bought and sold; the king's court itself, though the supreme judicature of the kingdom, was open to none that brought not presents to the king; the bribes given for the expedition, delay [w], suspension, and, doubtless for the perversion of justice, were entered in the public registers of the royal revenue, and remain as monuments of the perpetual iniquity and tyranny of the times. The barons of the exchequer, for instance, the first nobility of the kingdom, were not ashamed to insert, as an article in their records, that the county of Norfolk paid a sum that they might be fairly dealt with [x]; the borough of Yarmouth, that the king's charters, which they have for their liberties, might not be violated [y]; Richard, son of Gilbert, for the king's helping him to recover his debt from the Jews [z]; Serlo, son of Terlavaston, that he might be permitted to make his defence in case he were accused of a certain homicide [a]; Walter de Burton, for free law, if accused of wounding another [b]; Robert de Essart, for having an inquest to find whether Roger the Butcher, and Wace and Humphrey, accused him of robbery and theft out of envy and ill-will or not [c]; William Buhurst, for having an inquest to find whether he were accused of the death of one Godwin out of ill-will, or for just cause [d]. I have selected these few instances from a great number of a like kind, which Madox had selected from a still greater number, preserved in the ancient rolls of the exchequer [e]. [FN [u] Id. p. 272. [w] Id. p. 274, 309. [x] Id. p. 295. [y] Id. ibid. [z] Madoxs Hist. of the Exch. p. 296. He paid two hundred marks, great sum in those days. [a] Id. p. 296. [b] Id. ibid. [c] Id. p. 298. [d] Id. p. 302. [e] Id. chap. 12.]

Sometimes the party litigant offered the king a certain portion, a half, a third, a fourth, payable out of the debts, which he, as the executor of justice, should assist him in recovering [f]. Theophania de Westland agreed to pay the half of two hundred and twelve marks, that she might recover that sum against James de Fughleston [g]; Solomon, the Jew, engaged to pay one mark out of every seven that he should recover against Hugh de la Hose [h]; Nicholas Morrel promised to pay sixty pounds, that the Earl of Flanders might be distrained to pay him three hundred and forty-three pounds, which the earl had taken from him; and these sixty pounds were to be paid out of the first money that Nicholas should recover from the earl [i]. [FN [f] Id. p. 311. [g] Id. ibid. [h] Id. p. 79, 312. [i] Id. p. 312.]

As the king assumed the entire power over trade, he was to be paid for a permission to exercise commerce or industry of any kind [k]. Hugh Oisel paid four hundred marks for liberty to trade in England [l]; Nigel de Havene gave fifty marks for the partnership in merchandize which he had with Gervase de Hanton [m]; the men of Worcester paid one hundred shillings, that they might have the liberty of selling and buying dyed cloth as formerly [n]; several other towns paid for a like liberty [o]. The commerce indeed of the kingdom was so much under the control of the king, that he erected guilds, corporations, and monopolies, wherever he pleased; and levied sums for these exclusive privileges [p]. [FN [k] Id. p. 323. [l] Id. ibid. [m] Id. ibid. [n] Id. p. 324. [o] Id. ibid. [p] Madox's Hist. of the Exch. p. 232, 233, &c.]

There were no profits so small as to be below the king's attention. Henry, son of Arthur, gave ten dogs to have a recognition against the Countess of Copland for one knight's fee [q]. Roger, son of Nicholas, gave twenty lampreys and twenty shads for an inquest to find, whether Gilbert, son of Alured, gave to Roger two hundred muttons to obtain his confirmation for certain lands, or whether Roger took them from him by violence [r]; Geoffrey Fitz-Pierre, the chief justiciary, gave two good Norway hawks, that Walter le Madine might have leave to export a hundred weight of cheese out of the king's dominions [s]. [FN [q] Id. p. 298. [r] Id. p. 305. [s] Id. p. 325.]

It is really amusing to remark the strange business in which the king sometimes interfered, and never without a present. The wife of Hugh de Neville gave the king two hundred hens, that she might lie with her husband one night [t]; and she brought with her two sureties, who answered each for a hundred hens. It is probable that her husband was a prisoner, which debarred her from having access to him. The Abbot of Rucford paid ten marks for leave to erect houses and place men upon his land near Welhang, in order to secure his wood there from being stolen [u]. Hugh, Archdeacon of Wells, gave one tun of wine for leave to carry six hundred sums of corn whither he would [w]; Peter de Peraris gave twenty marks for leave to salt fishes, as Peter Chevalier used to do [x]. [FN [t] Id. p. 320. [u] Id. p. 326. [w] Id. p. 320. [x] Id. p. 326.]

It was usual to pay high fines, in order to gain the king's good-will, or mitigate his anger. In the reign of Henry II., Gilbert, the son of Fergus, fines in nine hundred and nineteen pounds, nine shillings, to obtain that prince's favour; William de Chataignes, a thousand marks, that he would remit his displeasure. In the reign of Henry III., the city of London fines in no less a sum than twenty thousand pounds on the same account [y]. [FN [y] Id. p. 327, 329.]

The king's protection and good offices of every kind were bought and sold. Robert Grislet paid twenty marks of silver, that the king would help him against the Earl of Mortaigne, in a certain plea [z]: Robert de Cundet gave thirty marks of silver, that the king would bring him to an accord with the Bishop of Lincoln [a]: Ralph de Breckham gave a hawk, that the king would protect him [b]; and this is a very frequent reason for payments: John, son of Ordgar, gave a Norway hawk, to have the king's request to the king of Norway to let him have his brother Godard's chattels [c]: Richard de Neville gave twenty palfreys to obtain the king's request to Isolda Bisset, that she should take him for a husband [d]: Roger Fitz-Walter gave three good palfreys to have the king's letter to Roger Bertram's mother, that she should marry him [e]: Eling, the dean, paid one hundred marks, that his whore and his children might be let out upon bail [f]: the Bishop of Winchester gave one tun of good wine for his not putting the king in mind to give a girdle to the Countess of Albemarle [g]: Robert de Veaux gave five of the best palfreys, that the king would hold his tongue about Henry Pinel's wife [h]. There are in the records of exchequer, many other singular instances of a like nature [i]. It will, however, be just to remark, that the same ridiculous practices and dangerous abuses prevailed in Normandy, and probably in all the other states of Europe [k]: England was not, in this respect, more barbarous than its neighbours. [FN [z] Madox's Hist. of the Exch. p. 329. [a] Id. p. 330. [b] Id. p. 332. [c] Id. ibid. [d] Id. p. 333. [e] Id. ibid. [f] Id. p. 342. PRO HABENDA AMICA SUA ET FILIIS, &c. [g] Id. p. 352. [h] Id. ibid. UT REX TACERET DE UXORE HENRICI PINEL. [i] WE SHALL GRATIFY THE READER'S CURIOSITY BY SUBJOINING A FEW MORE INSTANCES FROM MADOX, p. 332. Hugh Oisel was to give the king two robes of a good green colour, to have the king's letters patent to the merchants of Flanders, with a request to render him one thousand marks, which he lost in Flanders. The Abbot of Hyde paid thirty marks, to have the king's letters of request to the Archbishop of Canterbury, to remove certain monks that were against the abbot. Roger de Trihanton paid twenty marks and a palfrey, to have the king's request to Richard de Umfreville to give him his sister to wife, and to the sister, that she would accept him for a husband. William de Cheveringworth paid five marks, to have the king's letter to the Abbot of Perfore, to let him enjoy peaceably his tithes as formerly. Matthew de Hereford, clerk, paid ten marks for a letter of request to the Bishop of Llandaff, to let him enjoy peaceably his church of Schenfrith. Andrew Neulun gave three Flemish caps for the king's request to the Prior of Chikesand, for performance of an agreement made between them. Henry de Fontibus gave a Lombardy horse of value, to have the king's request to Henry Fitz-Hervey, that he would grant him his daughter to wife. Roger, son of Nicholas, promised all the lampreys he could get, to have the king's request to Earl William Marshall, that he would grant him the manor of Langeford at Firm. The burgesses of Gloucester promised three hundred lampreys, that they might not be distrained to find the prisoners of Poictou with necessaries, unless they pleased. Id. p. 352. Jordan, son of Reginald, paid twenty marks, to have the king's request to William Paniel, that he would grant him the land of Mill Nieresult, and the custody of his heirs: and if Jordan obtained the same, he was pay the twenty marks, otherwise not. Id. p. 333. [k] Madox's Hist. of the Exch. p. 359.]

These iniquitous practices of the Norman kings were so well known, that on the death of Hugh Bigod, in the reign of Henry II., the best and most just of these princes, the eldest son and the widow of this nobleman came to court, and strove, by offering large presents to the king, each of them to acquire possession of that rich inheritance. The king was so equitable as to order the cause to be tried by the great council! But, in the mean time, he seized all the money and treasure of the deceased [l]. Peter of Blois, a judicious, and even an elegant writer for that age, gives a pathetic description of the venality of justice, and the oppressions of the poor, under the reign of Henry; and he scruples not to complain to the king himself of these abuses [m]. We may judge what the case would be under the government of worst princes. The articles of inquiry concerning the conduct of sheriffs, which Henry promulgated in 1170, show the great power, as well as the licentiousness of these officers [n]. [FN [l] Bened. Abb. p. 180, 181. [m] Petri Bles. Epist. 95. apud Bibl. Patrum, tom. p. xxiv. 2014. [n] Hoveden, Chron. Gerv. p. 1410.]

Amerciaments, or fines for crimes and trespasses, were another considerable branch of the royal revenue [o]. Most crimes were atoned for by money; the fines imposed were not limited by any rule or statute; and frequently occasioned the total ruin of the person, even for the slightest trespasses. The forest-laws, particularly, were a great source of oppression. The king possessed sixty-eight forests, thirteen chases, and seven hundred and eighty-one parks, in different parts of England [p]; and considering the extreme passion of the English and Normans for hunting, these were so many snares laid for the people, by which they were allured into trespasses, and brought within the reach of arbitrary and rigorous laws, which the king had thought proper to enact by his own authority. [FN [o] Madox, chap. 14. [p] Spellm. Gloss. in verbo FORESTA.]

But the most barefaced acts of tyranny and oppression were practised against the Jews, who were entirely out of the protection of law, were extremely odious from the bigotry of the people, and were abandoned to the immeasurable rapacity of the king and his ministers. Besides many other indignities to which they were continually exposed, it appears that they were once all thrown into prison, and the sum of sixty-six thousand marks exacted for their liberty [q]: at another time, Isaac the Jew paid alone five thousand one hundred marks [r]; Brun, three thousand marks [s]; Jurnet, two thousand; Bennet, five hundred: at another, Licorica, widow of David, the Jew of Oxford, was required to pay six thousand marks; and she was delivered over to six of the richest and discreetest Jews in England, who were to answer for the sum [t]. Henry III. borrowed five thousand marks from the Earl of Cornwall; and for his repayment, consigned over to him all the Jews in England [u]. The revenue arising from exactions upon this nation was so considerable, that there was a particular court of exchequer set apart for managing it [w]. [FN [q] Madox's Hist. of the Exch. p. 151. This happened in the reign of King John. [r] Id. p. 151. [s] Id. p. 153. [t] Id. p. 168. [u] Id. p. 156. [w] Id. chap. 7.]

[MN Commerce.] We may judge concerning the low state of commerce among the English, when the Jews, notwithstanding these oppressions, could still find their account in trading among them, and lending them money. And as the improvements of agriculture were also much checked by the immense possessions of the nobility, by the disorders of the times, and by the precarious state of feudal property, it appears that industry of no kind could then have place in the kingdom [x]. [FN [x] We learn from the extracts given us of Doomsday by Brady, in his Treatise of Boroughs, that almost all the boroughs of England had suffered in the shock of the Conquest, and had extremely decayed between the death of the Confessor, and the time when Doomsday was framed.]

It is asserted by Sir Henry Spellman [y], as an undoubted truth, that, during the reigns of the first Norman princes, every edict of the king, issued with the consent of his privy council, had the full force of law. But the barons, surely, were not so passive as to intrust a power, entirely arbitrary and despotic, into the hands of the sovereign. It only appears, that the constitution had not fixed any precise boundaries to the royal power; that the right of issuing proclamations on any emergence, and of exacting obedience to them, a right which was always supposed inherent in the crown, is very difficult to be distinguished from a legislative authority; that the extreme imperfection of the ancient laws, and the sudden exigencies which often occurred in such turbulent governments, obliged the prince to exert frequently the latent powers of his prerogative; that he naturally proceeded, from the acquiescence of the people, to assume, in many particulars of moment, an authority from which he had excluded himself by express statutes, charters, or concessions, and which was, in the main, repugnant to the general genius of the constitution; and that the lives, the personal liberty, and the properties of all his subjects, were less secured by law against the exertion of his arbitrary authority, than by the independent power and private connexions of each individual. It appears from the great charter itself, that not only John, a tyrannical prince, and Richard, a violent one, but their father, Henry, under whose reign the prevalence of gross abuses is the least to be suspected, were accustomed, from their sole authority, without process of law, to imprison, banish, and attaint the freemen of their kingdom. [FN [y] Gloss. in verb. JUDICIUM DEI. The author of the MIROIR DES JUSTICES complains, that ordinances are only made by the king and his clerks, and by aliens and others, who dare not contradict the king, but study to please him. Whence, he concludes, laws are oftener dictated by will, than founded on right.]

A great baron, in ancient times, considered himself as a kind of sovereign within his territory; and was attended by courtiers and dependents more zealously attached to him than the ministers of state and the great officers were commonly to THEIR sovereign. He often maintained in his court the parade of royalty, by establishing a justiciary, constable, mareschal, chamberlain, seneschal, and chancellor, and assigning to each of these officers a separate province and command. He was usually very assiduous in exercising his jurisdiction; and took such delight in that image of sovereignty, that it was found necessary to restrain his activity, and prohibit him by law from holding courts too frequently [z]. It is not to be doubted, but the example, set him by the prince of a mercenary and sordid extortion, would be faithfully copied, and that all his good and bad offices, his justice and injustice, were equally put to sale. He had the power, with the king's consent, to exact talliages even from the free citizens who lived within his barony; and as his necessities made him rapacious, his authority was usually found to be more oppressive and tyrannical than that of the sovereign [a]. He was ever engaged in hereditary or personal animosities or confederacies with his neighbours, and often gave protection to all desperate adventurers and criminals, who could be useful in serving his violent purposes. He was able alone, in times of tranquillity, to obstruct the execution of justice within his territories; and by combining with a few malecontent barons of high rank and power, he could throw the state into convulsions. And, on the whole, though the royal authority was confined within bounds, and often within very narrow ones, yet the check was irregular, and frequently the source of great disorders; nor was it derived from the liberty of the people, but from the military power of many petty tyrants, who were equally dangerous to the prince and oppressive to the subject. [FN [z] Dugd. Jurid. Orig. p. 26. [a] Madox, Hist. of the Exch. p. 520.]

[MN The Church.] The power of the church was another rampart against royal authority; but this defence was also the cause of many mischiefs and inconveniences. The dignified clergy, perhaps, were not so prone to immediate violence as the barons; but as they pretended to a total independence on the state, and could always cover themselves with the appearances of religion, they proved, in one respect, an obstruction to the settlement of the kingdom, and to the regular execution of the laws. The policy of the Conqueror was in this particular liable to some exception. He augmented the superstitious veneration for Rome, to which that age was so much inclined; and he broke those bands of connexion, which, in the Saxon times, had preserved an union between the lay and the clerical orders. He prohibited the bishops from sitting in the county courts; he allowed ecclesiastical causes to be tried in spiritual courts only [b]; and he so much exalted the power of the clergy, that of sixty thousand two hundred and fifteen knights' fees, into which he divided England, he placed no less than twenty- eight thousand and fifteen under the church [c]. [FN [b] Char. Will. apud Wilkins, p. 230. Spellm. Conc. vol. ii. p. 14. [c] Spellm. Gloss. in verb. MANUS MORTUA. We are not to imagine, as some have done, that the church possessed lands in this proportion, but only that they and their vassals enjoyed such a proportionable part of the landed property.]

[MN Civil laws.] The right of primogeniture was introduced with the feudal law: an institution which is hurtful, by producing and maintaining an unequal division of private property; but is advantageous, in another respect, by accustoming the people to a preference in favour of the eldest son, and thereby preventing a partition or disputed succession in the monarchy. The Normans introduced the use of surnames, which tend to preserve the knowledge of families and pedigrees. They abolished none of the old absurd methods of trial by the cross or ordeal; and they added a new absurdity, the trial by single combat [d], which became a regular part of jurisprudence, and was conducted with all the order, method, devotion, and solemnity imaginable [e]. The ideas of chivalry also seem to have been imported by the Normans: no traces of those fantastic notions are to be found among the plain and rustic Saxons. [FN [d] LL. Will. cap. 68. [e] Spellm. Gloss. in verb. CAMPUS. The last instance of these duels was in the 15th of Eliz. So long did that absurdity remain.]

[MN Manners.] The feudal institutions, by raising the military tenants to a kind of sovereign dignity, by rendering personal strength and valour requisite, and by making every knight and baron his own protector and avenger, begat that martial pride and sense of honour, which, being cultivated and embellished by the poets and romance-writers of the age, ended in chivalry. The virtuous knight fought not only in his own quarrel, but in that of the innocent, of the helpless, and, above all, of the fair, whom he supposed to be for ever under the guardianship of his valiant arm. The uncourteous knight who, from his castle, exercised robbery on travellers, and committed violence on virgins, was the object of his perpetual indignation; and he put him to death, without scruple, or trial, or appeal, whenever he met with him. The great independence of men made personal honour and fidelity the chief tie among them; and rendered it the capital virtue of every true knight, or genuine professor of chivalry. The solemnities of single combat, as established by law, banished the notion of every thing unfair or unequal in rencounters; and maintained an appearance of courtesy between the combatants till the moment of their engagement. The credulity of the age grafted on this stock the notion of giants, enchanters, dragons, spells [f], and a thousand wonders, which still multiplied during the time of the crusades; when men, returning from so great a distance, used the liberty of imposing every fiction on their believing audience. These ideas of chivalry infected the writings, conversation, and behaviour of men, during some ages; and even after they were, in a great measure, banished by the revival of learning, they left modern GALLANTRY and the POINT OF HONOUR, which still maintain their influence, and are the genuine offspring of those ancient affectations. [FN [f] In all legal single combats, it was part of the champion's oath, that he carried not about him any herb, spell, or enchantment, by which he might procure victory. Dugd. Orig. Jurid. p. 82.]

The concession of the great charter, or rather its full establishment, (for there was a considerable interval of time between the one and the other,) gave rise, by degrees, to a new species of government, and introduced some order and justice into the administration. The ensuing scenes of our history are therefore somewhat different from the preceding. Yet the great charter contained no establishment of new courts, magistrates, or senates, nor abolition of the old. It introduced no new distribution of the powers of the commonwealth, and no innovation in the political or public law of the kingdom. It only guarded, and that merely by verbal clauses, against such tyrannical practices as are incompatible with civilized government, and, if they become very frequent, are incompatible with all government. The barbarous license of the kings, and perhaps of the nobles, was thenceforth somewhat more restrained: men acquired some more security for their properties and their liberties: and government approached a little nearer to that end for which it was originally instituted, the distribution of justice, and the equal protection of the citizens. Acts of violence and iniquity in the crown, which before were only deemed injurious to individuals, and were hazardous chiefly in proportion to the number, power, and dignity of the persons affected by them, were now regarded, in some degree, as public injuries, and as infringements of a charter calculated for general security. And thus the establishment of the great charter, without seeming anywise to innovate in the distribution of political power, became a kind of epoch in the constitution.