Feudalism In Europe, Its Frankish Birth And English Development

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Feudalism: Its Frankish Birth And English Development

Author:     Stubbs, William

Feudalism: Its Frankish Birth And English Development

 

 

9th To 12th Century

 

That social system - however varying in different times and places - in

which ownership of land is the basis of authority is known in history as

feudalism.  From the time of Clovis, the Frankish King, who died in A.D. 511,

the progress of the Franks in civilization was slow, and for more than two

centuries they spent their energies mainly in useless wars.  But Charles

Martel and his son, Pepin the Short - the latter dying in 768 - built up a

kingdom which Charlemagne erected into a powerful empire.  Under the

predecessors of Charlemagne the beginnings of feudalism, which are very

obscure, may be said vaguely to appear.  Charles Martel had to buy the

services of his nobles by granting them lands, and although he and Pepin

strengthened the royal power, which Charlemagne still further increased, under

the weak rulers who followed them the forces of the incipient feudalism again

became active, and the State was divided into petty count ship and dukedoms

almost independent of the king.

 

The gift of land by the king in return for feudal services was called a

feudal grant, and the land so given was termed a "feud" or "fief." In the

course of time fiefs became hereditary.  Lands were also sometimes usurped or

otherwise obtained by subjects, who thereby became feudal lords.  By a process

called "subinfeudation," lands were granted in parcels to other men by those

who received them from the king or otherwise, and by these lower landholders

to others again; and as the first recipient became the vassal of the king and

the suzerain of the man who held next below him, there was created a regular

descending scale of such vassalage and suzerainty, in which each man's

allegiance was directly due to his feudal lord, and not to the king himself.

From the king down to the lowest landholder all were bound together by

obligation of service and defence; the lord to protect his vassal, the vassal

to do service to his lord.

 

These are the essential features of the social system which, from its

early growth under the later Carlovingians in the ninth century, spread over

Europe and reached its highest development in the twelfth century.  At a time

midway between these periods it was carried by the Norman Conquest into

England.  The history of this system of distinctly Frankish origin - a

knowledge of which is absolutely essential to a proper understanding of

history and the evolution of our present social system - is told by Stubbs

with that discernment and thoroughness of analysis which have given him his

rank as one of the few masterly writers in this field.

 

Feudalism had grown up from two great sources - the beneficium, and the

practice of commendation - and had been specially fostered on Gallic soil by

the existence of a subject population which admitted of any amount of

extension in the methods of dependence.

 

The beneficiary system originated partly in gifts of land made by the

kings out of their own estates to their kinsmen and servants, with a special

undertaking to be faithful; partly in the surrender by land-owners of their

estates to churches or powerful men, to be received back again and held by

them as tenants for rent or service.  By the latter arrangement the weaker man

obtained the protection of the stronger, and he who felt himself insecure

placed his title under the defence of the church.

 

By the practice of commendation, on the other hand, the inferior put

himself under the personal care of a lord, but without altering his title or

divesting himself of his right to his estate; he became a vassal and did

homage.  The placing of his hands between those of his lord was the typical

act by which the connection was formed; and the oath of fealty was taken at

the same time.  The union of the beneficiary tie with that of commendation

completed the idea of feudal obligation - the twofold engagement: that of the

lord, to defend; and that of the vassal, to be faithful.  A third ingredient

was supplied by the grants of immunity by which in the Frank empire, as in

England, the possession of land was united with the right of judicature; the

dwellers on a feudal property were placed under the tribunal of the lord, and

the rights which had belonged to the nation or to its chosen head were

devolved upon the receiver of a fief.  The rapid spread of the system thus

originated, and the assimilation of all other tenures to it, may be regarded

as the work of the tenth century; but as early as A.D. 877 Charles the Bald

recognized the hereditary character of all benefices; and from that year the

growth of strictly feudal jurisprudence may be held to date.

 

The system testifies to the country and causes of its birth.  The

beneficium is partly of Roman, partly of German origin; in the Roman system

the usufruct - the occupation of land belonging to another person - involved

no diminution of status; in the Germanic system he who tilled land that was

not his own was imperfectly free; the reduction of a large Roman population to

dependence placed the two classes on a level, and conduced to the wide

extension of the institution.

 

Commendation, on the other hand, may have had a Gallic or Celtic origin,

and an analogy only with the Roman clientship.  The German comitatus, which

seems to have ultimately merged its existence in one or other of these

developments, is of course to be carefully distinguished in its origin from

them.  The tie of the benefice or of commendation could be formed between any

two persons whatever; none but the king could have antrustions.  But the

comitatus of Anglo-Saxon history preserved a more distinct existence, and this

perhaps was one of the causes that distinguished the later Anglo-Saxon system

most definitely from the feudalism of the Frank empire.

 

The process by which the machinery of government became feudalized,

although rapid, was gradual.

 

The weakness of the Carlovingian kings and emperors gave room for the

speedy development of disruptive tendencies in a territory so extensive and so

little consolidated.  The duchies and counties of the eighth and ninth

centuries were still official magistracies, the holders of which discharged

the functions of imperial judges or generals.  Such officers were of course

men whom the kings could trust, in most cases Franks, courtiers or kinsmen,

who at an earlier date would have been comites or antrustions, and who were

provided for by feudal benefices.  The official magistracy had in itself the

tendency to become hereditary, and when the benefice was recognized as

heritable, the provincial governorship became so too.  But the provincial

governor had many opportunities of improving his position, especially if he

could identify himself with the manners and aspirations of the people he

ruled.  By marriage or inheritance he might accumulate in his family not only

the old allodial estates which, especially on German soil, still continued to

subsist, but the traditions and local loyalties which were connected with the

possession of them.  So in a few years the Frank magistrate could unite in his

own person the beneficiary endowment, the imperial deputation, and the

headship of the nation over which he presided.  And then it was only necessary

for the central power to be a little weakened, and the independence of duke or

count was limited by his homage and fealty alone, that is, by obligations that

depended on conscience only for their fulfilment.

 

It is in Germany that the disruptive tendency most distinctly takes the

political form; Saxony and Bavaria assert their national independence under

Swabian and Saxon dukes who have identified the interests of their subjects

with their own.  In France, where the ancient tribal divisions had been long

obsolete, and where the existence of the allod involved little or no feeling

of loyalty, the process was simpler still; the provincial rulers aimed at

practical rather than political sovereignty; the people were too weak to have

any aspirations at all.  The disruption was due more to the abeyance of

central attraction than to any centrifugal force existing in the provinces.

But the result was the same; feudal government, a graduated system of

jurisdiction based on land tenure, in which every lord judged, taxed, and

commanded the class next below him, of which abject slavery formed the lowest,

and irresponsible tyranny the highest grade, and private war, private coinage,

private prisons, took the place of the imperial institutions of government.

 

This was the social system which William the Conqueror and his barons had

been accustomed to see at work in France.  One part of it - the feudal tenure

of land - was perhaps the only kind of tenure which they could understand; the

king was the original lord, and every title issued mediately or immediately

from him.  The other part, the governmental system of feudalism, was the point

on which sooner or later the duke and his barons were sure to differ.  Already

the incompatibility of the system with the existence of the strong central

power had been exemplified in Normandy, where the strength of the dukes had

been tasked to maintain their hold on the castles and to enforce their own

high justice.  Much more difficult would England be to retain in Norman hands

if the new king allowed himself to be fettered by the French system.

 

On the other hand the Norman barons would fain rise a step in the social

scale answering to that by which their duke had become a king; and they

aspired to the same independence which they had seen enjoyed by the counts of

Southern and Eastern France.  Nor was the aspiration on their part altogether

unreasonable; they had joined in the Conquest rather as sharers in the great

adventure than as mere vassals of the duke, whose birth they despised as much

as they feared his strength.  William, however, was wise and wary as well as

strong.  While, by the insensible process of custom, or rather by the mere

assumption that feudal tenure of land was the only lawful and reasonable one,

the Frankish system of tenure was substituted for the Anglo-Saxon, the

organization of government on the same basis was not equally a matter of

course.

 

The Conqueror himself was too strong to suffer that organization to

become formidable in his reign, but neither the brutal force of William Rufus

nor the heavy and equal pressure of the government of Henry I could extinguish

the tendency toward it.  It was only after it had, under Stephen, broken out

into anarchy and plunged the whole nation in misery; when the great houses

founded by the barons of the Conquest had suffered forfeiture or extinction;

when the Normans had become Englishmen under the legal and constitutional

reforms of Henry II - that the royal authority, in close alliance with the

nation, was enabled to put an end to the evil.

 

William the Conqueror claimed the crown of England as the chosen heir of

Edward the Confessor.  It was a claim which the English did not admit, and of

which the Normans saw the fallacy, but which he himself consistently

maintained and did his best to justify.  In that claim he saw not only the

justification of the Conquest in the eyes of the church, but his great

safeguard against the jealous and aggressive host by whose aid he had realized

it; therefore, immediately after the battle of Hastings he proceeded to seek

the national recognition of its validity.  He obtained it from the divided and

dismayed witan with no great trouble, and was crowned by the archbishop of

York - the most influential and patriotic among them - binding himself by the

constitutional promises of justice and good laws.  Standing before the altar

at Westminster, "in the presence of the clergy and people he promised with an

oath that he would defend God's holy churches and their rulers; that he would,

moreover, rule the whole people subject to him with righteousness and royal

providence; would enact and hold fast right law and utterly forbid rapine and

unrighteous judgments." The form of election and acceptance was regularly

observed and the legal position of the new King completed before he went forth

to finish the Conquest.

 

Had it not been for this the Norman host might have fairly claimed a

division of the land such as the Danes had made in the ninth century.  But to

the people who had recognized William it was but just that the chance should

be given them of retaining what was their own.  Accordingly, when the lands of

all those who had fought for Harold were confiscated, those who were willing

to acknowledge William were allowed to redeem theirs, either paying money at

once or giving hostages for the payment.  That under this redemption lay the

idea of a new title to the lands redeemed may be regarded as questionable.

The feudal lawyer might take one view, and the plundered proprietor another.

But if charters of confirmation or regrant were generally issued on the

occasion to those who were willing to redeem, there can be no doubt that, as

soon as the feudal law gained general acceptance, these would be regarded as

conveying a feudal title.  What to the English might be a mere payment of

fyrdwite, or composition for a recognized offence, might to the Normans seem

equivalent to forfeiture and restoration.

 

But however this was, the process of confiscation and redistribution of

lands under the new title began from the moment of the coronation.  The next

few years, occupied in the reduction of Western and Northern England, added

largely to the stock of divisible estates.  The tyranny of Odo of Bayeux and

William Fitzosbern, which provoked attempts at rebellion in 1067; the stand

made by the house of Godwin in Devonshire in 1068; the attempts of Mercia and

Northumbria to shake off the Normans in 1069 and 1070; the last struggle for

independence in 1071, in which Edwin and Morcar finally fell; the conspiracy

of the Norman earls in 1074, in consequence of which Waltheof perished - all

tended to the same result.  After each effort the royal hand was laid on more

heavily; more and more land changed owners, and with the change of owners the

title changed.  The complicated and unintelligible irregularities of the

Anglo-Saxon tenures were exchanged for the simple and uniform feudal theory.

The fifteen hundred tenants-in-chief of Domesday Book take the place of the

countless land-owners of King Edward's time, and the loose, unsystematic

arrangements which had grown up in the confusion of title, tenure, and

jurisdiction were replaced by systematic custom.  The change was effected

without any legislative act, simply by the process of transfer under

circumstances in which simplicity and uniformity were an absolute necessity.

It was not the change from allodial to feudal so much as from confusion to

order.  The actual amount of dispossession was no doubt greatest in the higher

ranks; the smaller owners may to a large extent have remained in a mediatized

position on their estates; but even Domesday, with all its fulness and

accuracy, cannot be supposed to enumerate all the changes of the twenty

eventful years that followed the battle of Hastings.  It is enough for our

purpose to ascertain that a universal assimilation of title followed the

general changes of ownership.  The king of Domesday is the supreme landlord;

all the land of the nation, the old folkland, has become the king's; and all

private land is held mediately or immediately of him; all holders are bound to

their lords by homage and fealty, either actually demanded or understood to be

demandable, in every case of transfer by inheritance or otherwise.

 

The result of this process is partly legal and partly constitutional or

political.  The legal result is the introduction of an elaborate system of

customs, tenures, rights, duties, profits, and jurisdictions.  The

constitutional result is the creation of several intermediate links between

the body of the nation and the king, in the place of or side by side with the

duty of allegiance.

 

On the former of these points we have very insufficient data; for we are

quite in the dark as to the development of feudal law in Normandy before the

invasion, and may be reasonably inclined to refer some at least of the

peculiarities of English feudal law to the leaven of the system which it

superseded.  Nor is it easy to reduce the organization described in Domesday

to strict conformity with feudal law as it appears later, especially with the

general prevalence of military tenure.

 

The growth of knighthood is a subject on which the greatest obscurity

prevails, and the most probable explanation of its existence in England - the

theory that it is a translation into Norman forms of the thegnage of the

Anglo-Saxon law - can only be stated as probable.

 

Between the picture drawn in Domesday and the state of affairs which the

charter of Henry I was designed to remedy, there is a difference which the

short interval of time will not account for, and which testifies to the action

of some skilful organizing hand working with neither justice nor mercy,

hardening and sharpening all lines and points to the perfecting of a strong

government.

 

It is unnecessary to recapitulate here all the points in which the

Anglo-Saxon institutions were already approaching the feudal model; it may be

assumed that the actual obligation of military service was much the same in

both systems, and that even the amount of land which was bound to furnish a

mounted warrior was the same however the conformity may have been produced.

The heriot of the English earl or thegn was in close resemblance with the

relief of the Norman count or knight.  But however close the resemblance,

something was now added that made the two identical.  The change of the heriot

to the relief implies a suspension of ownership, and carries with it the

custom of "livery of seisin." The heriot was the payment of a debt from the

dead man to his lord; his son succeeded him by allodial right.  The relief was

paid by the heir before he could obtain his father's lands; between the death

of the father and livery of seisin to the son the right of the "overlord" had

entered; the ownership was to a certain extent resumed, and the succession of

the heir took somewhat of the character of a new grant. The right of wardship

also became in the same way a reentry, by the lord, on the profits of the

estate of the minor, instead of being, as before, a protection, by the head of

the kin, of the indefeasible rights of the heir, which it was the duty of the

whole community to maintain.

 

There can be no doubt that the military tenure - the most prominent

feature of historical feudalism - was itself introduced by the same gradual

process which we have assumed in the case of the feudal usages in general. We

have no light on the point from any original grant made by the Conqueror to a

lay follower, but judging by the grants made to the churches we cannot suppose

it probable that such gifts were made on any expressed condition, or accepted

with a distinct pledge to provide a certain contingent of knights for the

king's service.  The obligation of national defence was incumbent, as of old,

on all land-owners, and the customary service of one fully armed man for each

five hides of land was probably the rate at which the newly endowed follower

of the king would be expected to discharge his duty.  The wording of the

Domesday survey does not imply that in this respect the new military service

differed from the old; the land is marked out, not into knights' fees, but

into hides, and the number of knights to be furnished by a particular

feudatory would be ascertained by inquiring the number of hides that he held,

without apportioning the particular acres that were to support the particular

knight.

 

It would undoubtedly be on the estates of the lay vassals that a more

definite usage would first be adopted, and knights bound by feudal obligations

to their lords receive a definite estate from them.  Our earliest information,

however, on this as on most points of tenure, is derived from the notices of

ecclesiastical practice.  Lanfranc, we are told, turned the drengs, the

rent-paying tenants of his archiepiscopal estates, into knights for the

defence of the country; he enfeoffed a certain number of knights who performed

the military service due from the archiepiscopal barony.  This had been done

before the Domesday survey, and almost necessarily implies that a like measure

had been taken by the lay vassals.  Lanfranc likewise maintained ten knights

to answer for the military service due from the convent of Christ Church,

which made over to him, in consideration of the relief, land worth two hundred

pounds annually.  The value of the knight's fee must already have been fixed

at twenty pounds a year.

 

In the reign of William Rufus the abbot of Ramsey obtained a charter

which exempted his monastery from the service of ten knights due from it on

festivals, substituting the obligation to furnish three knights to perform

service on the north of the Thames - a proof that the lands of that house had

not yet been divided into knights' fees.  In the next reign, we may infer -

from the favor granted by the King to the knights who defended their lands per

loricas (that is, by the hauberk) that their demesne lands shall be exempt

from pecuniary taxation - that the process of definite military infeudation

had largely advanced.  But it was not even yet forced on the clerical or

monastic estates.  When, in 1167, the abbot of Milton, in Dorset, was

questioned as to the number of knights' fees for which he had to account, he

replied that all the services due from his monastery were discharged out of

the demesne; but he added that in the reign of Henry I, during a vacancy in

the abbacy, Bishop Roger, of Salisbury, had enfeoffed two knights out of the

abbey lands.  He had, however, subsequently reversed the act and had restored

the lands, whose tenure had been thus altered, to their original condition of

rent-paying estate or "socage."

 

The very term "the new feoffment," which was applied to the knights' fees

created between the death of Henry I and the year in which the account

preserved in the Black Book of the exchequer was taken, proves that the

process was going on for nearly a hundred years, and that the form in which

the knights' fees appear when called on by Henry II for "scutage" was most

probably the result of a series of compositions by which the great vassals

relieved their lands from a general burden by carving out particular estates,

the holders of which performed the services due from the whole; it was a

matter of convenience and not of tyrannical pressure.  The statement of

Ordericus Vitalis that the Conqueror "distributed lands to his knights in such

fashion that the kingdom of England should have forever sixty thousand

knights, and furnish them at the king's command according to the occasion,"

must be regarded as one of the many numerical exaggerations of the early

historians.  The officers of the exchequer in the twelfth century were quite

unable to fix the number of existing knights' fees.

 

It cannot even be granted that a definite area of land was necessary to

constitute a knight's fee; for although at a later period and in local

computations we may find four or five hides adopted as a basis of calculation,

where the extent of the particular knight's fee is given exactly, it affords

no ground for such a conclusion.  In the Liber Niger we find knights' fees of

two hides and a half, of two hides, of four, five, and six hides.  Geoffrey

Ridel states that his father held one hundred and eighty-four carucates and a

virgate, for which the service of fifteen knights was due, but that no

knights' fees had been carved out of it, the obligation lying equally on every

carucate.  The archbishop of York had far more knights than his tenure

required.  It is impossible to avoid the conclusion that the extent of a

knight's fee was determined by rent or valuation rather than acreage, and that

the common quantity was really expressed in the twenty librates, the twenty

pounds' worth of annual value which until the reign of Edward I was the

qualification for knighthood.

 

It is most probable that no regular account of the knights' fees was ever

taken until they became liable to taxation, either in the form of auxilium

militum under Henry I, or in that of scutage under his grandson. The facts,

however, which are here adduced, preclude the possibility of referring this

portion of the feudal innovations to the direct legislation of the Conqueror.

It may be regarded as a secondary question whether the knighthood here

referred to was completed by the investiture with knightly arms and the

honorable accolade.  The ceremonial of knighthood was practised by the

Normans, whereas the evidence that the English had retained the primitive

practice of investing the youthful warrior is insufficient; yet it would be

rash to infer that so early as this, if indeed it ever was the case, every

possessor of a knight's fee received formal initiation before he assumed his

spurs.  But every such analogy would make the process of transition easier and

prevent the necessity of any general legislative act of change.

 

It has been maintained that a formal and definitive act, forming the

initial point of the feudalization of England, is to be found in a clause of

the laws, as they are called, of the Conqueror; which directs that every

freeman shall affirm, by covenant and oath, that "he will be faithful to King

William within England and without, will join him in preserving his lands and

honor with all fidelity, and defend him against his enemies." But this

injunction is little more than the demand of the oath of allegiance which had

been taken to the Anglo-Saxon kings, and is here required not of every feudal

dependent of the King, but of every freeman or freeholder whatsoever.

 

In that famous council of Salisbury of 1086, which was summoned

immediately after the making of the Domesday survey, we learn from the

Chronicle that there came to the King "all his witan, and all the landholders

of substance in England whose vassals soever they were, and they all submitted

to him, and became his men and swore oaths of allegiance that they would be

faithful to him against all others." In this act have been seen the formal

acceptance and date of the introduction of feudalism, but it has a very

different meaning.  The oath described is the oath of allegiance, combined

with the act of homage, and obtained from all land-owners, whoever their

feudal lord might be.  It is a measure of precaution taken against the

disintegrating power of feudalism, providing a direct tie between the

sovereign and all freeholders which no inferior relation existing between them

and the mesne lords would justify them in breaking.  The real importance of

the passage as bearing on the date of the introduction of feudal tenure is

merely that it shows the system to have already become consolidated; all the

land-owners of the kingdom had already become, somehow or other, vassals,

either of the king or of some tenant under him.  The lesson may be learned

from the fact of the Domesday survey.

 

The introduction of such a system would necessarily have effects far

wider than the mere modification of the law of tenure; it might be regarded as

a means of consolidating and concentrating the whole machinery of government;

legislation, taxation, judicature, and military defence were all capable of

being organized on the feudal principle, and might have been so had the moral

and political results been in harmony with the legal.  But its tendency when

applied to governmental machinery is disruptive.  The great feature of the

Conqueror's policy is his defeat of that tendency.  Guarding against it he

obtained recognition as the King of the nation and, so far as he could

understand them and the attitude of the nation allowed, he maintained the

usages of the nation.  He kept up the popular institutions of the hundred

court and the shire court.  He confirmed the laws which had been in use in

King Edward's days, with the additions which he himself made for the benefit,

as he especially tells us, of the English.

 

We are told, on what seems to be the highest legal authority of the next

century, that he issued in his fourth year a commission of inquiry into the

national customs, and obtained from sworn representatives of each county a

declaration of the laws under which they wished to live.  The compilation that

bears his name is very little more than a reissue of the code of Canute; and

this proceeding helped greatly to reconcile the English people to his rule.

Although the oppressions of his later years were far heavier than the measures

taken to secure the immediate success of the Conquest, all the troubles of the

kingdom after 1075, in his sons' reigns as well as in his own, proceeded from

the insubordination of the Normans, not from the attempts of the English to

dethrone the king.  Very early they learned that, if their interest was not

the king's, at least their enemies were his enemies; hence they are invariably

found on the royal side against the feudatories.

 

This accounts for the maintenance of the national force of defence, over

and above the feudal army.  The fyrd of the English, the general armament of

the men of the counties and hundreds, was not abolished at the Conquest, but

subsisted even through the reigns of William Rufus and Henry I, to be reformed

and reconstituted under Henry II; and in each reign it gave proof of its

strength and faithfulness.  The witenagemot itself retained the ancient form,

the bishops and abbots formed a chief part of it, instead of being, as in

Normandy, so insignificant an element that their very participation in

deliberation has been doubted.  The king sat crowned three times in the year

in the old royal towns of Westminster, Winchester, and Gloucester, hearing the

complaints of his people, and executing such justice as his knowledge of their

law and language and his own imperious will allowed.  In all this there is no

violent innovation, only such gradual essential changes as twenty eventful

years of new actors and new principles must bring, however insensibly the

people themselves - passing away and being replaced by their children - may be

educated to endurance.

 

It would be wrong to impute to the Conqueror any intention of deceiving

the nation by maintaining its official forms while introducing new principles

and a new race of administrators.  What he saw required change he changed with

a high hand.  But not the less surely did the change of administrators involve

a change of custom, both in the church and in the state.  The bishops,

ealdormen, and sheriffs of English birth were replaced by Normans; not

unreasonably, perhaps, considering the necessity of preserving the balance of

the state.  With the change of officials came a sort of amalgamation or

duplication of titles; the ealdorman or earl became the comes or count; the

sheriff became the vicecomes; the office in each case receiving the name of

that which corresponded most closely with it in Normandy itself.  With the

amalgamation of titles came an importation of new principles and possibly new

functions; for the Norman count and viscount had not exactly the same customs

as the earls and sheriffs.  And this ran up into the highest grades of

organization; the King's court of counsellors was composed of his feudal

tenants; the ownership of land was now the qualification for the witenagemot,

instead of wisdom; the earldoms became fiefs instead of magistracies, and even

the bishops had to accept the status of barons.  There was a very certain

danger that the mere change of persons might bring in the whole machinery of

hereditary magistracies, and that king and people might be edged out of the

administration of justice, taxation, and other functions of supreme or local

independence.

 

Against this it was most important to guard; as the Conqueror learned

from the events of the first year of his reign, when the severe rule of Odo

and William Fitzosbern had provoked Herefordshire.  Ralph Guader, Roger

Montgomery, and Hugh of Avranches filled the places of Edwin and Morcar and

the brothers of Harold.  But the conspiracy of the earls in 1074 opened

William's eyes to the danger of this proceeding, and from that time onward he

governed the provinces through sheriffs immediately dependent on himself,

avoiding the foreign plan of appointing hereditary counts, as well as the

English custom of ruling by viceregal ealdormen.  He was, however, very

sparing in giving earldoms at all, and inclined to confine the title to those

who were already counts in Normandy or in France.

 

To this plan there were some marked exceptions, which may be accounted

for either on the ground that the arrangements had been completed before the

need of watchfulness was impressed on the King by the treachery of the

Normans, or on that of the exigencies of national defence.  In these cases he

created, or suffered the continuance of, great palatine jurisdictions;

earldoms in which the earls were endowed with the superiority of whole

counties, so that all the land-owners held feudally of them, in which they

received the whole profits of the courts and exercised all the "regalia" or

royal rights, nominated the sheriffs, held their own councils, and acted as

independent princes except in the owing of homage and fealty to the King. Two

of these palatinates, the earldom of Chester and the bishopric of Durham,

retained much of their character to our own days.  A third, the palatinate of

Bishop Odo in Kent, if it were really a jurisdiction of the same sort, came to

an end when Odo forfeited the confidence of his brother and nephew.  A fourth,

the earldom of Shropshire, which is not commonly counted among the palatine

jurisdictions, but which possessed under the Montgomery earls all the

characteristics of such a dignity, was confiscated after the treason of Robert

of Belesme by Henry I.  These had been all founded before the conspiracy of

1074; they were also like the later lordships of the marches, a part of the

national defence; Chester and Shropshire kept the Welsh marches in order, Kent

was the frontier exposed to attacks from Picardy, and Durham, the patrimony of

St. Cuthbert, lay as a sacred boundary between England and Scotland;

Northumberland and Cumberland were still a debatable ground between the two

kingdoms.  Chester was held by its earls as freely by the sword as the King

held England by the crown; no lay vassal in the county held of the King, all

of the earl.  In Shropshire there were only five lay tenants in capite besides

Roger Montgomery; in Kent, Bishop Odo held an enormous proportion of the

manors, but the nature of his jurisdiction is not very clear, and its duration

is too short to make it of much importance.  If William founded any earldoms

at all after 1074 (which may be doubted), he did it on a very different scale.

 

The hereditary sheriffdoms he did not guard against with equal care. The

Norman viscounties were hereditary, and there was some risk that the English

ones would become so too; and with the worst consequences, for the English

counties were much larger than the bailiwicks of the Norman viscount, and the

authority of the sheriff, when he was relieved from the company of the

ealdorman, and was soon to lose that of the bishop, would have no check except

the direct control of the King.  If William perceived this, it was too late to

prevent it entirely; some of the sheriffdoms became hereditary, and continued

to be so long after the abuse had become constitutionally dangerous.

 

The independence of the greater feudatories was still further limited by

the principle, which the Conqueror seems to have observed, of avoiding the

accumulation in any one hand of a great number of contiguous estates.  The

rule is not without some important exceptions, and it may have been suggested

by the diversity of occasions on which the fiefs were bestowed, but the result

is one which William must have foreseen.  An insubordinate baron whose

strength lay in twelve different counties would have to rouse the suspicions

and perhaps to defy the arms of twelve powerful sheriffs, before he could draw

his forces to a head.  In his manorial courts, scattered and unconnected, he

could set up no central tribunal, nor even force a new custom upon his

tenants, nor could he attempt oppression on any extensive scale.  By such

limitation the people were protected and the central power secured.

 

Yet the changes of ownership, even thus guarded, wrought other changes.

It is not to be supposed that the Norman baron, when he had received his fief,

proceeded to carve it out into demesne and tenants' land as if he were making

a new settlement in an uninhabited country.  He might indeed build his castle

and enclose his chase with very little respect to the rights of his weaker

neighbors, but he did not attempt any such radical change as the legal theory

of the creation of manors seems to presume.  The name "manor" is of Norman

origin: but the estate to which it was given existed, in its essential

character, long before the Conquest; it received a new name as the shire also

did, but neither the one nor the other was created by this change.  The local

jurisdictions of the thegns who had grants of sac and soc, or who exercised

judicial functions among their free neighbors, were identical with the

manorial jurisdictions of the new owners.

 

It may be conjectured with great probability that in many cases the

weaker freemen, who had either willingly or under constraint attended the

courts of their great neighbors, were now, under the general infusion of

feudal principle, regarded as holding their lands of them as lords; it is not

less probable that in a great number of grants the right to suit and service

from small land-owners passed from the king to the receiver of the fief as a

matter of course; but it is certain that even before the Conquest such a

proceeding was not uncommon; Edward the Confessor had transferred to St.

Augustine's monastery a number of allodiaries in Kent, and every such measure

in the case of a church must have had its parallel in similar grants to

laymen.  The manorial system brought in a number of new names; and perhaps a

duplication of offices.  The gerefa of the old thegn, or of the ancient

township, was replaced, as president of the courts, by a Norman steward or

seneschal; and the bydel of the old system by the bailiff of the new; but the

gerefa and bydel still continued to exist in a subordinate capacity as the

grave or reeve and the bedell; and when the lord's steward takes his place in

the county court, the reeve and four men of the township are there also.  The

common of the township may be treated as the lord's waste, but the townsmen do

not lose their customary share.

 

The changes that take place in the state have their resulting analogies

in every village, but no new England is created; new forms displace but do not

destroy the old, and old rights remain, although changed in title and forced

into symmetry with a new legal and pseudo-historical theory.  The changes may

not seem at first sight very oppressive, but they opened the way for

oppression; the forms they had introduced tended, under the spirit of Norman

legality and feudal selfishness, to become hard realities, and in the profound

miseries of Stephen's reign the people learned how completely the new theory

left them at the mercy of their lords; nor were all the reforms of his

successor more stringent or the struggles of the century that followed a whit

more impassioned than were necessary to protect the English yeoman from the

men who lived upon his strength.

 

In attempting thus to estimate the real amount of change introduced by

the feudalism of the Conquest, many points of further interest have been

touched upon, to which it is necessary to recur only so far as to give them

their proper place in a more general view of the reformed organization.  The

Norman king is still the king of the nation.  He has become the supreme

landlord; all estates are held of him mediately or immediately, but he still

demands the allegiance of all his subjects.  The oath which he exacted at

Salisbury in 1086, and which is embodied in the semi-legal form already

quoted, was a modification of the oath taken to Edmund, and was intended to

set the general obligation of obedience to the king in its proper relation to

the new tie of homage and fealty by which the tenant was bound to his lord.

 

All men continued to be primarily the king's men, and the public peace to

his peace.  Their lords might demand their service to fulfil their own

obligations, but the king could call them to the fyrd, summon them to his

courts, and tax them without the intervention of their lords; and to the king

they could look for protection against all foes.  Accordingly the king could

rely on the help of the bulk of the free people in all struggles with his

feudatories, and the people, finding that their connection with their lords

would be no excuse for unfaithfulness to the king, had a further inducement to

adhere to the more permanent institutions.

 

In the department of law the direct changes introduced by the Conquest

were not great.  Much that is regarded as peculiarly Norman was developed upon

English soil, and although originated and systematized by Norman lawyers,

contained elements which would have worked in a very different way in

Normandy.  Even the vestiges of Carlovingian practice which appear in the

inquests of the Norman reigns are modified by English usage.  The great

inquest of all, the Domesday survey, may owe its principle to a foreign

source; the oath of the reporters may be Norman, but the machinery that

furnishes the jurors is native; "the king's barons inquire by the oath of the

sheriff of the shire, and of all the barons and their Frenchmen, and of the

whole hundred, the priest, the reeve, and six ceorls of every township."

 

The institution of the collective Frank pledge, which recent writers

incline to treat as a Norman innovation, is so distinctly colored by English

custom that it has been generally regarded as purely indigenous.  If it were

indeed a precaution taken by the new rulers against the avoidance of justice

by the absconding or harboring of criminals, it fell with ease into the usages

and even the legal terms which had been common for other similar purposes

since the reign of Athelstan.  The trial by battle, which on clearer evidence

seems to have been brought in by the Normans, is a relic of old Teutonic

jurisprudence, the absence of which from the Anglo-Saxon courts is far more

curious than its introduction from abroad.

 

The organization of jurisdiction required and underwent no great change

in these respects.  The Norman lord who undertook the office of sheriff had,

as we have seen, more unrestricted power than the sheriffs of old.  He was the

king's representative in all matters judicial, military, and financial in his

shire, and had many opportunities of tyrannizing in each of those departments:

but he introduced no new machinery.  From him, or from the courts of which he

was the presiding officer, appeal lay to the king alone; but the king was

often absent from England and did not understand the language of his subjects.

In his absence the administration was intrusted to a judiciar, a regent, or

lieutenant, of the kingdom; and the convenience being once ascertained of

having a minister who could in the whole kingdom represent the king, as the

sheriff did in the shire, the judiciar became a permanent functionary.  This,

however, cannot be certainly affirmed of the reign of the Conqueror, who, when

present at Christmas, Easter, and Whitsuntide, held great courts of justice as

well as for other purposes of state; and the legal importance of the office

belongs to a later stage.  The royal court, containing the tenants-in-chief of

the crown, both lay and clerical, and entering into all the functions of the

witenagemot, was the supreme council of the nation, with the advice and

consent of which the King legislated, taxed, and judged.

 

In the one authentic monument of William's jurisprudence, the act which

removed the bishops from the secular courts and recognized their spiritual

jurisdictions, he tells us that he acts "with the common council and counsel

of the archbishops, bishops, abbots, and all the princes of the kingdom." The

ancient summary of his laws contained in the Textus Roffensis is entitled

"What William, King of the English, with his Princes enacted after the

Conquest of England"' and the same form is preserved in the tradition of his

confirming the ancient laws reported to him by the representatives of the

shires.  The Anglo-Saxon Chronicle enumerates the classes of men who attended

his great courts: "There were with him all the great men over all England,

archbishops and bishops, abbots and earls, thegns and knights."

 

The great suit between Lanfranc as Archbishop of Canterbury and Odo as

Earl of Kent, which is perhaps the best reported trial of the reign, was tried

in the county court of Kent before the King's representative, Gosfrid, bishop

of Coutances; whose presence and that of most of the great men of the kingdom

seem to have made it a witenagemot.  The archbishop pleaded the cause of his

Church in a session of three days on Pennenden Heath; the aged South-Saxon

bishop, Ethelric, was brought by the King's command to declare the ancient

customs of the laws; and with him several other Englishmen skilled in ancient

laws and customs.  All these good and wise men supported the archbishop's

claim, and the decision was agreed on and determined by the whole country.

The sentence was laid before the King, and confirmed by him. Here we have

probably a good instance of the principle universally adopted; all the lower

machinery of the court was retained entire, but the presence of the Norman

justiciar and barons gave it an additional authority, a more direct connection

with the king, and the appearance at least of a joint tribunal.

 

The principle of amalgamating the two laws and nationalities by

superimposing the better consolidated Norman superstructure on the better

consolidated English substructure, runs through the whole policy.

 

The English system was strong in the cohesion of its lower organism, the

association of individuals in the township, in the hundred, and in the shire;

the Norman system was strong in its higher ranges, in the close relation to

the Crown of the tenants-in-chief whom the King had enriched.  On the other

hand, the English system was weak in the higher organization, and the Normans

in England had hardly any subordinate organization at all.  The strongest

elements of both were brought together.

 

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