The Works of the Right Honourable Edmund Burke, Vol. VII. (of 12)
by Edmund Burke
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[Sidenote: Hundred Court.]

Ten of these tithings made an Hundred. Here in ordinary course they held a monthly court for the centenary, when all the suitors of the subordinate tithings attended. Here were determined causes concerning breaches of the peace, small debts, and such matters as rather required a speedy than a refined justice.

[Sidenote: County Court.]

[Sidenote: Ealdorman and Bishop.]

There was in the Saxon Constitution a great simplicity. The higher order of courts were but the transcript of the lower, somewhat more extended in their objects and in their power; and their power over the inferior courts proceeded only from their being a collection of them all. The County or Shire Court was the great resort for justice (for the four great courts of record did not then exist). It served to unite all the inferior districts with one another, and those with the private jurisdiction of the thanes. This court had no fixed place. The alderman of the shire appointed it. Hither came to account for their own conduct, and that of those beneath them, the bailiffs of hundreds and tithings and boroughs, with their people,—the thanes of either rank, with their dependants,—a vast concourse of the clergy of all orders: in a word, of all who sought or distributed justice. In this mixed assembly the obligations contracted in the inferior courts were renewed, a general oath of allegiance to the king was taken, and all debates between the several inferior cooerdinate jurisdictions, as well as the causes of too much weight for them, finally determined. In this court presided (for in strict signification he does not seem to have been a judge) an officer of great consideration in those times, called the Ealdorman of the Shire. With him sat the bishop, to decide in whatever related to the Church, and to mitigate the rigor of the law by the interposition of equity, according to the species of mild justice that suited the ecclesiastical character. It appears by the ancient Saxon laws, that the bishop was the chief acting person in this court. The reverence in which the clergy were then held, the superior learning of the bishop, his succeeding to the power and jurisdiction of the Druid, all contributed to raise him far above the ealdorman, and to render it in reality his court. And this was probably the reason of the extreme lenity of the Saxon laws. The canons forbade the bishops to meddle in cases of blood. Amongst the ancient Gauls and Germans the Druid could alone condemn to death; so that on the introduction of Christianity there was none who could, in ordinary course, sentence a man to capital punishment: necessity alone forced it in a few cases.

Concerning the right of appointing the Alderman of the Shire there is some uncertainty. That he was anciently elected by his county is indisputable; that an alderman of the shire was appointed by the crown seems equally clear from the writings of King Alfred. A conjecture of Spelman throws some light upon this affair. He conceives that there were two aldermen with concurrent jurisdiction, one of whom was elected by the people, the other appointed by the king. This is very probable, and very correspondent to the nature of the Saxon Constitution, which was a species of democracy poised and held together by a degree of monarchical power. If the king had no officer to represent him in the county court, wherein all the ordinary business of the nation was then transacted, the state would have hardly differed from a pure democracy. Besides, as the king had in every county large landed possessions, either in his demesne, or to reward and pay his officers, he would have been in a much worse condition than any of his subjects, if he had been destitute of a magistrate to take care of his rights and to do justice to his numerous vassals. It appears, as well as we can judge in so obscure a matter, that the popular alderman was elected for a year only, and that the royal alderman held his place at the king's pleasure. This latter office, however, in process of time, was granted for life; and it grew afterwards to be hereditary in many shires.

[Sidenote: The Sheriff.]

[Sidenote: Sheriff's Tourn.]

We cannot pretend to say when the Sheriff came to be substituted in the place of the Ealdorman: some authors think King Alfred the contriver of this regulation. It might have arisen from the nature of the thing itself. As several persons of consequence enough to obtain by their interest or power the place of alderman were not sufficiently qualified to perform the duty of the office, they contented themselves with the honorary part, and left the judicial province to their substitute.[59] The business of the robe to a rude martial people was contemptible and disgusting. The thanes, in their private jurisdictions, had delegated their power of judging to their reeves, or stewards; and the earl, or alderman, who was in the shire what the thane was in his manor, for the same reasons officiated by his deputy, the shire-reeve. This is the origin of the Sheriff's Tourn, which decided in all affairs, civil and criminal, of whatever importance, and from which there lay no appeal but to the Witenagemote. Now there scarce remains the shadow of a body formerly so great: the judge being reduced almost wholly to a ministerial officer; and to the court there being left nothing more than the cognizance of pleas under forty shillings, unless by a particular writ or special commission. But by what steps such a revolution came on it will be our business hereafter to inquire.

[Sidenote: Witenagemote.]

The Witenagemote or Saxon Parliament, the supreme court, had authority over all the rest, not upon any principle of subordination, but because it was formed of all the rest. In this assembly, which was held annually, and sometimes twice a year, sat the earls and bishops and greater thanes, with the other officers of the crown.[60] So far as we can judge by the style of the Saxon laws, none but the thanes, or nobility, were considered as necessary constituent parts of this assembly, at least whilst it acted deliberatively. It is true that great numbers of all ranks of people attended its session, and gave by their attendance, and their approbation of what was done, a sanction to the laws; but when they consented to anything, it was rather in the way of acclamation than by the exercise of a deliberate voice, or a regular assent or negative. This may be explained by considering the analogy of the inferior assemblies. All persons, of whatever rank, attended at the county courts; but they did not go there as judges, they went to sue for justice,—to be informed of their duty, and to be bound to the performance of it. Thus all sorts of people attended at the Witenagemotes, not to make laws, but to attend at the promulgation of the laws;[61] as among so free a people every institution must have wanted much of its necessary authority, if not confirmed by the general approbation. Lambard is of opinion that in these early times the commons sat, as they do at this day, by representation from shires and boroughs; and he supports his opinion by very plausible reasons. A notion of this kind, so contrary to the simplicity of the Saxon ideas of government, and to the genius of that people, who held the arts and commerce in so much contempt, must be founded on such appearances as no other explanation can account for.

To the reign of Henry the Second, the citizens and burgesses were little removed from absolute slaves. They might be taxed individually at what sum the king thought fit to demand; or they might be discharged by offering the king a sum, from which, if he accepted it, the citizens were not at liberty to recede; and in either case the demand was exacted with severity, and even cruelty. A great difference is made between taxing them and those who cultivate lands: because, says my author, their property is easily concealed; they live penuriously, are intent by all methods to increase their substance, and their immense wealth is not easily exhausted. Such was their barbarous notion of trade and its importance. The same author, speaking of the severe taxation, and violent method of extorting it, observes that it is a very proper method,—and that it is very just that a degenerate officer, or other freeman, rejecting his condition for sordid gain, should be punished beyond the common law of freemen.

I take it that those who held by ancient demesne did not prescribe simply not to contribute to the expenses of the knight of the shire; but they prescribed, as they did in all cases, upon a general principle, to pay no tax, nor to attend any duty of whatever species, because they were the king's villains. The argument is drawn from the poverty of the boroughs, which ever since the Conquest have been of no consideration, and yet send members to Parliament; which they could not do, but by some privileges inherent in them, on account of a practice of the same kind in the Saxon times, when they were of more repute. It is certain that many places now called boroughs were formerly towns or villages in ancient demesne of the king, and had, as such, writs directed to them to appear in Parliament, that they might make a free gift or benevolence, as the boroughs did; and from thence arose the custom of summoning them. This appears by sufficient records. And it appears by records also, that it was much at the discretion of the sheriff what boroughs he should return; a general writ was directed to him to return for all the boroughs in a shire; sometimes boroughs which had formerly sent members to Parliament were quite passed over, and others, never considered as such before, were returned. What is called the prescription on this occasion was rather a sort of rule to direct the sheriff in the execution of his general power than a right inherent in any boroughs. But this was long after the time of which we speak. In whatever manner we consider it, we must own that this subject during the Saxon times is extremely dark. One thing, however, is, I think, clear from the whole tenor of their government, and even from the tenor of the Norman Constitution long after: that their Witenagemotes or Parliaments were unformed, and that the rights by which the members held their seats were far from being exactly ascertained. The Judicia Civitatis Londoniae afford a tolerable insight into the Saxon method of making and executing laws. First, the king called together his bishops, and such other persons as he thought proper. This council, or Witenagemote, having made such laws as seemed convenient, they then swore to the observance of them. The king sent a notification of these proceedings to each Burgmote, where the people of that court also swore to the observance of them, and confederated, by means of mutual strength and common charge, to prosecute delinquents against them. Nor did there at that time seem to be any other method of enforcing new laws or old. For as the very form of their government subsisted by a confederacy continually renewed, so, when a law was made, it was necessary for its execution to have again recourse to confederacy, which was the great, and I should almost say the only, principle of the Anglo-Saxon government.

What rights the king had in this assembly is a matter of equal uncertainty.[62] The laws generally run in his name, with the assent of his wise men, &c. But considering the low estimation of royalty in those days, this may rather be considered as the voice of the executive magistrate, of the person who compiled the law and propounded it to the Witenagemote for their consent, than of a legislator dictating from his own proper authority. For then, it seems, the law was digested by the king or his council for the assent of the general assembly. That order is now reversed. All these things are, I think, sufficient to show of what a visionary nature those systems are which would settle the ancient Constitution in the most remote times exactly in the same form in which we enjoy it at this day,—not considering that such mighty changes in manners, during so many ages, always must produce a considerable change in laws, and in the forms as well as the powers of all governments.

We shall next consider the nature of the laws passed in these assemblies, and the judicious manner of proceeding in these several courts which we have described.

[Sidenote: Saxon laws.]

The Anglo-Saxons trusted more to the strictness of their police, and to the simple manners of their people, for the preservation of peace and order, than to accuracy or exquisite digestion of their laws, or to the severity of the punishments which they inflicted.[63] The laws which remain to us of that people seem almost to regard two points only: the suppressing of riots and affrays,—and the regulation of the several ranks of men, in order to adjust the fines for delinquencies according to the dignity of the person offended, or to the quantity of the offence. In all other respects their laws seem very imperfect. They often speak in the style of counsel as well as that of command. In the collection of laws attributed to Alfred we have the Decalogue transcribed, with no small part of the Levitical law; in the same code are inserted many of the Saxon institutions, though these two laws were in all respects as opposite as could possibly be imagined. These indisputable monuments of our ancient rudeness are a very sufficient confutation of the panegyrical declamations in which some persons would persuade us that the crude institutions of an unlettered people had attained an height which the united efforts of necessity, learning, inquiry, and experience can hardly reach to in many ages. We must add, that, although as one people under one head there was some resemblance in the laws and customs of our Saxon ancestors throughput the kingdom, yet there was a considerable difference, in many material points, between the customs of the several shires: nay, that in different manors subsisted a variety of laws not reconcilable with each other, some of which custom, that caused them, has abrogated; others have been overruled by laws or public judgment to the contrary; not a few subsist to this time.

[Sidenote: Purgation by oath.]

[Sidenote: By ordeal.]

The Saxon laws, imperfect and various as they were, served in some tolerable degree a people who had by their Constitution an eye on each other's concerns, and decided almost all matters of any doubt amongst them by methods which, however inadequate, were extremely simple. They judged every controversy either by the conscience of the parties, or by the country's opinion of it, or what they judged an appeal to Providence. They were unwilling to submit to the trouble of weighing contradictory testimonies; and they were destitute of those critical rules by which evidence is sifted, the true distinguished from the false, the certain from the uncertain. Originally, therefore, the defendant in the suit was put to his oath, and if on oath he denied the debt or the crime with which he was charged, he was of course acquitted. But when the first fervors of religion began to decay, and fraud and the temptations to fraud to increase, they trusted no longer to the conscience of the party. They cited him to an higher tribunal,—the immediate judgment of God. Their trials were so many conjurations, and the magical ceremonies of barbarity and heathenism entered into law and religion. This supernatural method of process they called God's Dome; it is generally known by the name of Ordeal, which in the Saxon language signifies the Great Trial. This trial was made either by fire or water: that by fire was principally reserved for persons of rank; that by water decided the fate of the vulgar; sometimes it was at the choice of the party. A piece of iron, kept with a religious veneration in some monastery, which claimed this privilege as an honor, was brought forth into the church upon the day of trial; and it was there again consecrated to this awful purpose by a form of service still extant. A solemn mass was performed; and then the party accused appeared, surrounded by the clergy, by his judges, and a vast concourse of people, suspended and anxious for the event; all that assisted purified themselves by a fast of three days; and the accused, who had undergone the same fast, and received the sacrament, took the consecrated iron, of about a pound weight, heated red, in his naked hand, and in that manner carried it nine feet. This done, the hand was wrapped up and sealed in the presence of the whole assembly. Three nights being passed, the seals were opened before all the people: if the hand was found without any sore inflicted by the fire, the party was cleared with universal acclamation; if on the contrary a raw sore appeared, the party, condemned by the judgment of Heaven, had no further plea or appeal. Sometimes the accused walked over nine hot irons: sometimes boiling water was used; into this the man dipped his hand to the arm. The judgment by water was accompanied by the solemnity of the same ceremonies. The culprit was thrown into a pool of water, in which if he did not sink, he was adjudged guilty, as though the element (they said) to which they had committed the trial of his innocency had rejected him.

Both these species of ordeal, though they equally appealed to God, yet went on different principles. In the fire ordeal a miracle must be wrought to acquit the party; in the water a miracle was necessary to convict him. Is there any reason for this extraordinary distinction? or must we resolve it solely into the irregular caprices of the human mind? The greatest genius which has enlightened this age seems in this affair to have been carried by the sharpness of his wit into a subtilty hardly to be justified by the way of thinking of that unpolished period. Speaking of the reasons for introducing this method of trial, "Qui ne voit," says he, "que, chez un peuple exerce a manier des armes, la peau rude et calleuse ne devoit pas recevoir assez l'impression du fer chaud, ... pour qu'il y parut trois jours apres? Et s'il y paroissoit, c'etoit une marque que celui qui faisoit l'epreuve etoit un effemine." And this mark of effeminacy, he observes, in those warlike times, supposed that the man has resisted the principles of his education, that he is insensible to honor, and regardless of the opinion of his country. But supposing the effect of hot iron to be so slight even on the most callous hands, of which, however, there is reason to doubt, yet we can hardly admit this reasoning, when we consider that women were subjected to this fire ordeal, and that no other women than those of condition could be subjected to it. Montesquieu answers the objection, which he foresaw would be made, by remarking, that women might have avoided this proof, if they could find a champion to combat in their favor; and he thinks a just presumption might be formed against a woman of rank who was so destitute of friends as to find no protector. It must be owned that the barbarous people all over Europe were much guided by presumptions in all their judicial proceedings; but how shall we reconcile all this with the custom of the Anglo-Saxons, among whom the ordeal was in constant use, and even for women, without the alternative of the combat, to which it appears this people were entire strangers? What presumption can arise from the event of the water ordeal, in which no callosity of hands, no bravery, no skill in arms, could be in any degree serviceable? The causes of both may with more success be sought amongst the superstitious ideas of the ancient Northern world. Amongst the Germans the administration of the law was in the hands of the priests or Druids.[64] And as the Druid worship paid the highest respect to the elements of fire and water, it was very natural that they who abounded with so many conjurations for the discovery of doubtful facts or future events should make use of these elements in their divination. It may appear the greater wonder, how the people came to continue so long, and with, such obstinacy, after the introduction of Christianity, and in spite of the frequent injunctions of the Pope, whose authority was then much venerated, in the use of a species of proof the insufficiency of which a thousand examples might have detected. But this is perhaps not so unaccountable. Persons were not put to this trial, unless there was pretty strong evidence against them, something sufficient to form what is equivalent to a corpus delicti; they must have been actually found guilty by the duodecemvirale judicium, before they could be subjected in any sort to the ordeal. It was in effect showing the accused an indulgence to give him this chance, even such a chance as it was, of an acquittal; and it was certainly much milder than the torture, which is used, with full as little certainty of producing its end, among the most civilized nations. And the ordeal without question frequently operated by the mere terror. Many persons, from a dread of the event, chose to discover rather than to endure the trial. Of those that did endure it, many must certainly have been guilty. The innocency of some who suffered could never be known with certainty. Others by accident might have escaped; and this apparently miraculous escape had great weight in confirming the authority of this trial. How long did we continue in punishing innocent people for witchcraft, though experience might, to thinking persons, have frequently discovered the injustice of that proceeding! whilst to the generality a thousand equivocal appearances, confessions from fear or weakness, in fine, the torrent of popular prejudice rolled down through so many ages, conspired to support the delusion.

[Sidenote: Compurgation.]

To avoid as much as possible this severe mode of trial, and at the same time to leave no inlet for perjury, another method of clearing was devised. The party accused of any crime, or charged in a civil complaint, appeared in court with some of his neighbors, who were called his Compurgators; and when on oath he denied the charge, they swore that they believed his oath to be true.[65] These compurgators were at first to be three; afterwards five were required; in process of time twelve became necessary.[66] As a man might be charged by the opinion of the country, so he might also be discharged by it: twelve men were necessary to find him guilty, twelve might have acquitted him. If opinion supports all government, it not only supported in the general sense, but it directed every minute part in the Saxon polity. A man who did not seem to have the good opinion of those among whom he lived was judged to be guilty, or at least capable of being guilty, of every crime. It was upon this principle that a man who could not find the security of some tithing or friborg for his behavior,[67] he that was upon account of this universal desertion called Friendless Man, was by our ancestors condemned to death,—a punishment which the lenity of the English laws in that time scarcely inflicted for any crime, however clearly proved: a circumstance which strongly marks the genius of the Saxon government.

[Sidenote: Trial by the Country.]

On the same principle from which the trial by the oath of compurgators was derived, was derived also the Trial by the Country, which was the method of taking the sense of the neighborhood on any dubious fact. If the matter was of great importance, it was put in the full Shiremote; and if the general voice acquitted or condemned, decided for one party or the other, this was final in the cause. But then it was necessary that all should agree: for it does not appear that our ancestors, in those days, conceived how any assembly could be supposed to give an assent to a point concerning which several who composed that assembly thought differently. They had no idea that a body composed of several could act by the opinion of a small majority. But experience having shown that this method of trial was tumultuary and uncertain, they corrected it by the idea of compurgation. The party concerned was no longer put to his oath,—he simply pleaded; the compurgators swore as before in ancient times; therefore the jury were strictly from the neighborhood, and were supposed to have a personal knowledge of the man and the fact. They were rather a sort of evidence than judges: and from hence is derived that singularity in our laws, that most of our judgments are given upon verdict, and not upon evidence, contrary to the laws of most other countries. Neither are our juries bound, except by one particular statute, and in particular cases, to observe any positive testimony, but are at liberty to judge upon presumptions. These are the first rude chalkings-out of our jurisprudence. The Saxons were extremely imperfect in their ideas of law,—the civil institutions of the Romans, who were the legislators of mankind, having never reached them. The order of our courts, the discipline of our jury, by which it is become so elaborate a contrivance, and the introduction of a sort of scientific reason in the law, have been the work of ages.

As the Saxon laws did not suffer any transaction, whether of the sale of land or goods, to pass but in the shire and before witnesses, so all controversies of them were concluded by what they called the scyre witness.[68] This was tried by the oaths of the parties, by viva voce testimony, and the producing of charters and records. Then the people, laity and clergy, whether by plurality of votes or by what other means is not very certain, affirmed the testimony in favor of one of the claimants. Then the proceeding was signed, first by those who held the court, and then by the persons who affirmed the judgment, who also swore to it in the same manner.[69]

[Sidenote: Punishments.]

The Saxons were extremely moderate in their punishments. Murder and treason were compounded, and a fine set for every offence. Forfeiture for felony was incurred only by those that fled. The punishment with death was very rare,—with torture unknown. In all ancient nations, the punishment of crimes was in the family injured by them, particularly in case of murder.[70] This brought deadly feuds amongst the people, which, in the German nations particularly, subsisted through several generations. But as a fruitless revenge could answer little purpose to the parties injured and was ruinous to the public peace, by the interposal of good offices they were prevailed upon to accept some composition in lieu of the blood of the aggressor, and peace was restored. The Saxon government did little more than act the part of arbitrator between the contending parties, exacted the payment of this composition, and reduced it to a certainty. However, the king, as the sovereign of all, and the sheriff, as the judicial officer, had their share in those fines. This unwillingness to shed blood, which the Saxon customs gave rise to, the Christian religion confirmed. Yet was it not altogether so imperfect as to have no punishment adequate to those great delinquencies which tend entirely to overturn a state, public robbery, murder of the lord.[71]

[Sidenote: Origin of succession.]

[Sidenote: Annual property.]

As amongst the Anglo-Saxons government depended in some measure upon land-property, it will not be amiss to say something upon their manner of holding and inheriting their lands. It must not be forgot that the Germans were of Scythian original, and had preserved that way of life and those peculiar manners which distinguished the parent nation. As the Scythians lived principally by pasturage and hunting, from the nature of that way of employment they were continually changing their habitations. But even in this case some small degree of agriculture was carried on, and therefore some sort of division of property became necessary. This division was made among each tribe by its proper chief. But their shares were allotted to the several individuals only for a year, lest they should come to attach themselves to any certain habitation: a settlement being wholly contrary to the genius of the Scythian, manners.

Campestres melius Scythae, Quorum plaustra vagas rite trahunt domos, Vivunt, et rigidi Getae, Immetata quibus jugera liberas Fruges et Cererem ferunt, Nec cultura placet longior annua.

[Sidenote: Estates for life.]

[Sidenote: Inheritance.]

[Sidenote: Book-land.]

[Sidenote: Folk-land.]

[Sidenote: Saxon fiefs.]

This custom of an annual property probably continued amongst the Germans as long as they remained in their own country; but when their conquests carried them into other parts, another object besides the possession of the land arose, which obliged them to make a change in this particular. In the distribution of the conquered lands, the ancient possessors of them became an object of consideration, and the management of these became one of the principal branches of their polity. It was expedient towards holding them in perfect subjection, that they should be habituated to obey one person, and that a kind of cliental relation should be created between them; therefore the land, with the slaves, and the people in a state next to slavery, annexed to it, was bestowed for life in the general distribution. When life-estates were once granted, it seemed a natural consequence that inheritances should immediately supervene. When a durable connection is created between a certain man and a certain portion of land by a possession for his whole life, and when his children have grown up and have been supported on that land, it seems so great an hardship to separate them, and to deprive thereby the family of all means of subsisting, that nothing could be more generally desired nor more reasonably allowed than an inheritance; and this reasonableness was strongly enforced by the great change wrought in their affairs when life-estates were granted. Whilst according to the ancient custom lands were only given for a year, there was a rotation so quick that every family came in its turn to be easily provided for, and had not long to wait; but the children of a tenant for life, when they lost the benefit of their father's possession, saw themselves as it were immured upon every side by the life-estates, and perceived no reasonable hope of a provision from any new arrangement. These inheritances began very early in England. By a law of King Alfred it appears that they were then of a very ancient establishment: and as such inheritances were intended for great stability, they fortified them by charters; and therefore they were called Book-land. This was done with regard to the possession of the better sort: the meaner, who were called ceorles, if they did not live in a dependence on some thane, held their small portions of land as an inheritance likewise,—not by charter, but by a sort of prescription. This was called Folk-land. These estates of inheritance, both the greater and the meaner, were not fiefs; they were to all purposes allodial, and had hardly a single property of a feud; they descended equally to all the children, males and females, according to the custom of gavelkind, a custom absolutely contrary to the genius of the feudal tenure; and whenever estates were granted in the later Saxon times by the bounty of the crown with an intent that they should be inheritable, so far were they from being granted with the complicated load of all the feudal services annexed, that in all the charters of that kind which subsist they are bestowed with a full power of alienation, et liberi ab omni seculari gravamine. This was the general condition of those inheritances which were derived from the right of original conquest, as well to all the soldiers as to the leader; and these estates, as it is said, were not even forfeitable, no, not for felony, as if that were in some sort the necessary consequence of an inheritable estate. So far were they from resembling a fief. But there were other possessions which bore a nearer resemblance to fiefs, at least in their first feeble and infantile state of the tenure, than, those inheritances which were held by an absolute right in the proprietor. The great officers who attended the court, commanded armies, or distributed justice must necessarily be paid and supported; but in what manner could they be paid? In money they could not, because there was very little money then in Europe, and scarce any part of that little came into the prince's coffers. The only method of paying them was by allotting lands for their subsistence whilst they remained in his service. For this reason, in the original distribution, vast tracts of land were left in the hands of the king. If any served the king in a military command, his land may be said to have been in some sort held by knight-service. If the tenant was in an office about the king's person, this gave rise to sergeantry; the persons who cultivated his lands may be considered as holding by socage. But the long train of services that made afterwards the learning of the tenures were then not thought of, because these feuds, if we may so call them, had not then come to be inheritances,—which circumstance of inheritance gave rise to the whole feudal system. With the Anglo-Saxons the feuds continued to the last but a sort of pay or salary of office. The trinoda necessitas, so much spoken of, which was to attend the king in his expeditions, and to contribute to the building of bridges and repair of highways, never bound the lands by way of tenure, but as a political regulation, which equally affected every class and condition of men and every species of possession.

[Sidenote: Gavelkind.]

The manner of succeeding to lands in England at this period was, as we have observed, by Gavelkind,—an equal distribution amongst the children, males and females. The ancient Northern nations had but an imperfect notion of political power. That the possessor of the land should be the governor of it was a simple idea; and their schemes extended but little further. It was not so in the Greek and Italian commonwealths. In those the property of the land was in all respects similar to that of goods, and had nothing of jurisdiction annexed to it; the government there was a merely political institution. Amongst such a people the custom of distribution could be of no ill consequence, because it only affected property. But gavelkind amongst the Saxons was very prejudicial; for, as government was annexed to a certain possession in land, this possession, which was continually changing, kept the government in a very fluctuating state: so that their civil polity had in it an essential evil, which contributed to the sickly condition in which the Anglo-Saxon state always remained, as well as to its final dissolution.


[49] They had no other nobility; yet several families amongst them were considered as noble.

[50] Arma sumere non ante cuiquam moris, quam civitas suffecturum probaverit.—Tacitus de Mor. Germ. 13.

[51] Nihil autem neque publicae neque privatae rei nisi armati agunt.—Tacitus de Mor. Germ. 13.

[52] Caeteri robustioribus ac jam pridem probatis aggregantur.—Id. ibid.

[53] Illum defendere, tueri, sua quoque fortia facta gloriae ejus as signare, praecipuum sacramentum est.—Id. 14.

[54] Deputed authority, guardianship, &c, not known to the Northern nations; they gained this idea by intercourse with the Romans.

[55] Jud. Civ. Lund. apud Wilk. post p. 68.

[56] Spelman of Feuds, ch. 5.

[57] Fuerunt etiam in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia vel per liberas consuetudines.—For the original of copyholds, see Bracton, Lib. I. fol. 7.

[58] Ibi debent populi omnes et gentes universae singulis annis, semel in anno scilicet, convenire, scilicet in capite Kal. Maii, et se fide et sacramento non fracto ibi in unam et simul confoederare, et consolidare sicut conjurati fratres ad defendendum regnum contra alienigenas et contra inimicos, una cum domino suo rege, et terras et honores illius omni fidelitate cum eo servare, et quod illi ut domino suo regi intra et extra regnum universum Britanniae fideles esse volunt—LL. Ed. Conf. c. 35.—Of Heretoches and their election, vide Id. eodem.

Probibitum erat etiam in eadem lege, ne quis emeret vivum animal vel pannum usatum sine plegiis et bonis testibus.—Of other particulars of buying and selling, vide Leges Ed. Conf. 38.

[59] Sheriff in the Norman times was merely the king's officer, not the earl's. The earl retained his ancient fee, without jurisdiction; the sheriff did all the business. The elective sheriff must have disappeared on the Conquest; for then all land was the king's, either immediately or mediately, and therefore his officer governed.

[60] How this assembly was composed, or by what right the members sat in it, I cannot by any means satisfy myself. What is here said is, I believe, nearest to the truth.

[61] Hence, perhaps, all men are supposed cognizant of the law.

[62] Debet etiam rex omnia rite facere in regno, et per judicium procerum regni.—Debet ... justitiam per consilium procerum regni sui tenere.—Leges Ed. 17.

[63] The non-observance of a regulation of police was always heavily punished by barbarous nations; a slighter punishment was inflicted upon the commission of crimes. Among the Saxons moat crimes were punished by fine; wandering from the highway without sounding an horn was death. So among the Druids,—to enforce exactness in time at their meetings, he that came last after the time appointed was punished with death.

[64] The Druids judged not as magistrates, but as interpreters of the will of Heaven. "Ceterum neque animadvertere, neque vincire, neque verberare quidem, nisi sacerdotibus permissum; non quasi in poenam, nec ducis jussu, sed velut Deo imperante," says Tacitus, de Mor. German. 7.

[65] Si quis emendationem oppidorum vel pontium vel profectionem militarem detrectaverit, compenset regi cxx solidis, ... vel purget se, et nominentur ei xiv, et eligantur xi.—Leges Cnuti, 62.

[66] Si accusatio sit, et purgatio male succedat, judicet Episcopus.—Leges Cnuti, 53.

[67] Every man not privileged, whether he be paterfamilias, (heorthfest,[A]) or pedissequa, (folghere,[B]) must enter into the hundred and tithing, and all above twelve to swear he will not be a thief or consenting to a thief.—Leges Cnuti, 19.

[A] Heorthfeste,—the same with Husfastene, i.e. the master of a family, from the Saxon, Hearthfaest, i.e. fixed to the house or hearth.

[B] The Folgheres, or Folgeres, were the menial servants or followers of the Husfastene, or Housekeepers.—Bracton, Lib. III., Tract. 2, cap. 10. Leges Hen. I. cap. 8.

[68] Si quis terram defenderit testimonio provinciae, &c.—Leges Cnuti, 76: And sethe land gewerod hebbe be scyre gewitnesse.

[69] See, in Madox, the case in Bishop of Bathes Court See also Brady, 272, where the witnesses on one side offer to swear, or join battle with the other.

[70] Parentibus occisi fiat emendatio, vel guerra eorum portetur; unde Anglice proverbium habetur, Bige spere of side, oththe baer; id est, Eme lanceam a latere, aut fer.—Leges Ed. 12.

The fines on the town or hundred.

Parentes murdrati sex marcas haberent, rex quadraginta. [This different from the ancient usage, where the king had half.] Si parentes deessent, dominus ejus reciperet. Si dominum non haberet, felagus ejus, id est, fide cum eo ligatus.—Leges Ed. 15.

[71] Purveyance. Vide Leges Cnuti, 67.

Si quis intestatus ex hac vita decedat, sive sit per negligentiam ejus, sive per mortem subitaneam, tunc non assumat sibi dominus plus possessionis (aehta) ipsius quam justum armamentum; sed post mortem possessio (aehtgescyft) ejus quam justissime distribuatur uxori et liberis, et propinquis cognatis, cuilibet pro dignitate quae ad cum pertinet.—Leges Cnuti, 68.




Before the period of which we are going to treat, England was little known or considered in Europe. Their situation, their domestic calamities, and their ignorance circumscribed the views and politics of the English within the bounds of their own island. But the Norman conqueror threw down all these barriers. The English laws, manners, and maxims were suddenly changed; the scene was enlarged; and the communication with the rest of Europe, being thus opened, has been preserved ever since in a continued series of wars and negotiations. That we may, therefore, enter more fully into the matters which lie before us, it is necessary that we understand the state of the neighboring continent at the time when this island first came to be interested in its affairs.

The Northern nations who had overran the Roman Empire were at first rather actuated by avarice than ambition, and were more intent upon plunder than conquest; they were carried beyond their original purposes, when they began, to form regular governments, for which they had been prepared by no just ideas of legislation. For a long time, therefore, there was little of order in their affairs or foresight in their designs. The Goths, the Burgundians, the Franks, the Vandals, the Suevi, after they had prevailed over the Roman Empire, by turns prevailed over each other in continual wars, which were carried on upon no principles of a determinate policy, entered into upon motives of brutality and caprice, and ended as fortune and rude violence chanced to prevail. Tumult, anarchy, confusion, overspread the face of Europe; and an obscurity rests upon the transactions of that time which suffers us to discover nothing but its extreme barbarity.

Before this cloud could be dispersed, the Saracens, another body of barbarians from the South, animated by a fury not unlike that which gave strength to the Northern irruptions, but heightened by enthusiasm, and regulated by subordination and an uniform policy, began to carry their arms, their manners, and religion, into every part of the universe. Spain was entirely overwhelmed by the torrent of their armies, Italy and the islands were harassed by their fleets, and all Europe alarmed by their vigorous and frequent enterprises. Italy, who had so long sat the mistress of the world, was by turns the slave of all nations. The possession of that fine country was hotly disputed between the Greek Emperor and the Lombards, and it suffered infinitely by that contention. Germany, the parent of so many nations, was exhausted by the swarms she had sent abroad.

However, in the midst of this chaos there were principles at work which reduced things to a certain form, and gradually unfolded a system in which the chief movers and main springs were the Papal and the Imperial powers,—the aggrandizement or diminution of which have been the drift of almost all the politics, intrigues, and wars which have employed and distracted Europe to this day.

From Rome the whole Western world had received its Christianity; she was the asylum of what learning had escaped the general desolation; and even in her ruins she preserved something of the majesty of her ancient greatness. On these accounts she had a respect and a weight which increased every day amongst a simple religious people, who looked but a little way into the consequences of their actions. The rudeness of the world was very favorable for the establishment of an empire of opinion. The moderation with which the Popes at first exerted this empire made its growth unfelt until it could no longer be opposed; and the policy of later Popes, building on the piety of the first, continually increased it: and they made use of every instrument but that of force. They employed equally the virtues and the crimes of the great; they favored the lust of kings for absolute authority, and the desire of subjects for liberty; they provoked war, and mediated peace; and took advantage of every turn in the minds of men, whether of a public or private nature, to extend their influence, and push their power from ecclesiastical to civil, from subjection to independency, from independency to empire.

France had many advantages over the other parts of Europe. The Saracens had no permanent success in that country. The same hand which expelled those invaders deposed the last of a race of heavy and degenerate princes, more like Eastern monarchs than German leaders, and who had neither the force to repel the enemies of their kingdom nor to assert their own sovereignly. This usurpation placed on the throne princes of another character, princes who were obliged to supply their want of title by the vigor of their administration. The French monarch had need of some great and respected authority to throw a veil over his usurpation, and to sanctify his newly acquired power by those names and appearances which are necessary to make it respectable to the people. On the other hand, the Pope, who hated the Grecian Empire, and equally feared the success of the Lombards, saw with joy this new star arise in the North, and gave it the sanction of his authority. Presently after be called it to his assistance. Pepin passed the Alps, relieved the Pope, and invested him with the dominion of a large country in the best part of Italy.

Charlemagne pursued the course which was marked out for him, and put an end to the Lombard kingdom, weakened by the policy of his father and the enmity of the Popes, who never willingly saw a strong power in Italy. Then he received from the hand of the Pope the Imperial crown, sanctified by the authority of the Holy See, and with it the title of Emperor of the Romans, a name venerable from the fame of the old Empire, and which was supposed to carry great and unknown prerogatives; and thus the Empire rose again out of its ruins in the West, and, what is remarkable, by means of one of those nations which had helped to destroy it. If we take in the conquests of Charlemagne, it was also very near as extensive as formerly; though its constitution was altogether different, as being entirely on the Northern model of government. From Charlemagne the Pope received in return an enlargement and a confirmation of his new territory. Thus the Papal and Imperial powers mutually gave birth, to each other. They continued for some ages, and in some measure still continue, closely connected, with a variety of pretensions upon each other, and on the rest of Europe.

Though, the Imperial power had its origin in France, it was soon divided into two branches, the Gallic and the German. The latter alone supported the title of Empire; but the power being weakened by this division, the Papal pretensions had the greater weight. The Pope, because he first revived the Imperial dignity, claimed a right of disposing of it, or at least of giving validity to the election of the Emperor. The Emperor, on the other hand, remembering the rights of those sovereigns whose title he bore, and how lately the power which insulted him with such demands had arisen from the bounty of his predecessors, claimed the same privileges in the election of a Pope. The claims of both were somewhat plausible; and they were supported, the one by force of arms, and the other by ecclesiastical influence, powers which in those days were very nearly balanced. Italy was the theatre upon which this prize was disputed. In every city the parties in favor of each of the opponents were not far from an equality in their numbers and strength. Whilst these parties disagreed in the choice of a master, by contending for a choice in their subjection they grew imperceptibly into freedom, and passed through the medium of faction and anarchy into regular commonwealths. Thus arose the republics of Venice, of Genoa, of Florence, Sienna, and Pisa, and several others. These cities, established in this freedom, turned the frugal and ingenious spirit contracted in such communities to navigation and traffic; and pursuing them with skill and vigor, whilst commerce was neglected and despised by the rustic gentry of the martial governments, they grew to a considerable degree of wealth, power, and civility.

The Danes, who in this latter time preserved the spirit and the numbers of the ancient Gothic people, had seated themselves in England, in the Low Countries, and in Normandy. They passed from thence to the southern part of Europe, and in this romantic age gave rise in Sicily and Naples to a new kingdom and a new line of princes.

All the kingdoms on the continent of Europe were governed nearly in the same form; from whence arose a great similitude in the manners of their inhabitants. The feodal discipline extended itself everywhere, and influenced the conduct of the courts and the manners of the people with its own irregular martial spirit. Subjects, under the complicated laws of a various and rigorous servitude, exercised all the prerogatives of sovereign power. They distributed justice, they made war and peace at pleasure. The sovereign, with great pretensions, had but little power; he was only a greater lord among great lords, who profited of the differences of his peers; therefore no steady plan could be well pursued, either in war or peace. This day a prince seemed irresistible at the head of his numerous vassals, because their duty obliged them to war, and they performed this duty with pleasure. The next day saw this formidable power vanish like a dream, because this fierce undisciplined people had no patience, and the time of the feudal service was contained within very narrow limits. It was therefore easy to find a number of persons at all times ready to follow any standard, but it was hard to complete a considerable design which required a regular and continued movement. This enterprising disposition in the gentry was very general, because they had little occupation or pleasure but in war, and the greatest rewards did then attend personal valor and prowess. All that professed arms became in some sort on an equality. A knight was the peer of a king, and men had been used to see the bravery of private persons opening a road to that dignity. The temerity of adventurers was much justified by the ill order of every state, which left it a prey to almost any who should attack it with sufficient vigor. Thus, little checked by any superior power, full of fire, impetuosity, and ignorance, they longed to signalize themselves, wherever an honorable danger called them; and wherever that invited, they did not weigh very deliberately the probability of success.

The knowledge of this general disposition in the minds of men will naturally remove a great deal of our wonder at seeing an attempt founded on such slender appearances of right, and supported by a power so little proportioned to the undertaking as that of William, so warmly embraced and so generally followed, not only by his own subjects, but by all the neighboring potentates. The Counts of Anjou, Bretagne, Ponthieu, Boulogne, and Poictou, sovereign princes,—adventurers from every quarter of France, the Netherlands, and the remotest parts of Germany, laying aside their jealousies and enmities to one another, as well as to William, ran with an inconceivable ardor into this enterprise, captivated with the splendor of the object, which obliterated all thoughts of the uncertainty of the event. William kept up this fervor by promises of large territories to all his allies and associates in the country to be reduced by their united efforts. But after all it became equally necessary to reconcile to his enterprise the three great powers of whom we have just spoken, whose disposition must have had the most influence on his affairs.

His feudal lord, the King of France, was bound by his most obvious interests to oppose the further aggrandizement of one already too potent for a vassal. But the King of France was then a minor; and Baldwin, Earl of Flanders, whose daughter William had married, was regent of the kingdom. This circumstance rendered the remonstrance of the French Council against his design of no effect: indeed, the opposition of the Council itself was faint; the idea of having a king under vassalage to their crown might have dazzled the more superficial courtiers; whilst those who thought more deeply were unwilling to discourage an enterprise which they believed would probably end in the ruin of the undertaker. The Emperor was in his minority, as well as the King of France; but by what arts the Duke prevailed upon the Imperial Council to declare in his favor, whether or no by an idea of creating a balance to the power of France, if we can imagine that any such idea then subsisted, is altogether uncertain; but it is certain that he obtained leave for the vassals of the Empire to engage in his service, and that he made use of this permission. The Popes consent was obtained with still less difficulty. William had shown himself in many instances a friend to the Church and a favorer of the clergy. On this occasion he promised to improve those happy beginnings in proportion to the means he should acquire by the favor of the Holy See. It is said that he even proposed to hold his new kingdom as a fief from Rome. The Pope, therefore, entered heartily into his interests; he excommunicated all those that should oppose his enterprise, and sent him, as a means of insuring success, a consecrated banner.



[Sidenote: A.D. 1065.]

After the Battle of Hastings, the taking of Dover, the surrender of London, and the submission of the principal nobility, William had nothing left but to order in the best manner the kingdom he had so happily acquired. Soon after his coronation, fearing the sudden and ungoverned motions of so great a city, new to subjection, he left London until a strong citadel could be raised to overawe the people. This was built where the Tower of London now stands. Not content with this, he built three other strong castles in situations as advantageously chosen, at Norwich, at Winchester, and at Hereford, securing not only the heart of affairs, but binding down the extreme parts of the kingdom. And as he observed from his own experience the want of fortresses in England, he resolved fully to supply that defect, and guard the kingdom both against internal and foreign enemies. But he fortified his throne yet more strongly by the policy of good government. To London he confirmed by charter the liberties it had enjoyed under the Saxon kings, and endeavored to fix the affections of the English in general by governing them with equity according to their ancient laws, and by treating them on all occasions with the most engaging deportment. He set up no pretences which arose from absolute conquest. He confirmed their estates to all those who had not appeared in arms against him, and seemed not to aim at subjecting the English to the Normans, but to unite the two nations under the wings of a common parental care. If the Normans received estates and held lucrative offices and were raised by wealthy matches in England, some of the English were enriched with lands and dignities and taken into considerable families in Normandy. But the king's principal regards were showed to those by whose bravery he had attained his greatness. To some he bestowed the forfeited estates, which were many and great, of Harold's adherents; others he satisfied from the treasures his rival had amassed; and the rest, quartered upon wealthy monasteries, relied patiently on the promises of one whose performances had hitherto gone hand in hand with his power. There was another circumstance which conduced much to the maintaining, as well as to the making, his conquest. The posterity of the Danes, who had finally reduced England under Canute the Great, were still very numerous in that kingdom, and in general not well liked by nor well affected to the old Anglo-Saxon inhabitants. William wisely took advantage of this enmity between the two sorts of inhabitants, and the alliance of blood which was between them and his subjects. In the body of laws which he published he insists strongly on this kindred, and declares that the Normans and Danes ought to be as sworn brothers against all men: a policy which probably united these people to him, or at least so confirmed the ancient jealousy which subsisted between them and the original English as to hinder any cordial union against his interests.

When the king had thus settled his acquisitions by all the methods of force and policy, he thought it expedient to visit his patrimonial territory, which, with regard to its internal state, and the jealousies which his additional greatness revived in many of the bordering princes, was critically situated. He appointed to the regency in his absence his brother Odo, an ecclesiastic, whom he had made Bishop of Bayeux, in France, and Earl of Kent, with great power and preeminence, in England,—a man bold, fierce, ambitious, full of craft, imperious, and without faith, but well versed in all affairs, vigilant, and courageous. To him he joined William Fitz-Osbern, his justiciary, a person of consummate prudence and great integrity. But not depending on this disposition, to secure his conquest, as well as to display its importance abroad, under a pretence of honor, he carried with him all the chiefs of the English nobility, the popular Earls Edwin and Morcar, and, what was of most importance, Edgar Atheling, the last branch of the royal stock of the Anglo-Saxon kings, and infinitely dear to all the people.

[Sidenote: A.D. 1607.]

The king managed his affairs abroad with great address, and covered, all his negotiations for the security of his Norman dominions under the magnificence of continual feasting and unremitted diversion, which, without an appearance of design, displayed his wealth and power, and by that means facilitated his measures. But whilst he was thus employed, his absence from England gave an opportunity to several humors to break out, which the late change had bred, but which the amazement likewise produced by that violent change, and the presence of their conqueror, wise, vigilant, and severe, had hitherto repressed. The ancient line of their kings displaced, the only thread on which it hung carried out of the kingdom and ready to be cut off by the jealousy of a merciless usurper, their liberties none by being precarious, and the daily insolencies and rapine of the Normans intolerable,—these discontents were increased by the tyranny and rapaciousness of the regent, and they were fomented from abroad by Eustace, Count of Boulogne. But the people, though ready to rise in all parts, were destitute of leaders, and the insurrections actually made were not carried on in concert, nor directed to any determinate object; so that the king, returning speedily, and exerting himself everywhere with great vigor, in a short time dissipated these ill-formed projects. However, so general a dislike to William's government had appeared on this occasion, that he became in his turn disgusted with his subjects, and began to change his maxims of rule to a rigor which was more conformable to his advanced age and the sternness of his natural temper. He resolved, since he could not gain the affections of his subjects, to find such matter for their hatred as might weaken them, and fortify his own authority against the enterprises which that hatred might occasion. He revived the tribute of Danegelt, so odious from its original cause and that of its revival, which he caused to be strictly levied throughout the kingdom. He erected castles at Nottingham, at Warwick, and at York, and filled them with Norman garrisons. He entered into a stricter inquisition for the discovery of the estates forfeited on his coming in; paying no regard to the privileges of the ecclesiastics, he seized upon the treasures which, as in an inviolable asylum, the unfortunate adherents to Harold had deposited in monasteries. At the same time he entered into a resolution of deposing all the English, bishops, on none of whom he could rely, and filling their places with Normans. But he mitigated the rigor of these proceedings by the wise choice he made in filling the places of those whom he had deposed, and gave by that means these violent changes the air rather of reformation than oppression. He began with Stigand, Archbishop of Canterbury. A synod was called, in which, for the first time in England, the Pope's legate a latere is said to have presided. In this council, Stigand, for simony and for other crimes, of which it is easy to convict those who are out of favor, was solemnly degraded from his dignity. The king filled his place with Lanfranc, an Italian. By his whole conduct he appeared resolved to reduce his subjects of all orders to the most perfect obedience.

[Sidenote: A.D. 1068.]

The people, loaded with new taxes, the nobility, degraded and threatened, the clergy, deprived of their immunities and influence, joined in one voice of discontent, and stimulated each other to the most desperate resolutions. The king was not unapprised of these motions, nor negligent of them. It is thought he meditated to free himself from much of his uneasiness by seizing those men on whom the nation in its distresses used to cast its eyes for relief. But whilst he digested these measures, Edgar Atheling, Edwin and Morcar, Waltheof, the son of Siward, and several others, eluded his vigilance, and escaped into Scot land, where they were received with open arms by King Malcolm. The Scottish monarch on this occasion married the sister of Edgar; and this match engaged him more closely to the accomplishment of what his gratitude to the Saxon kings and the rules of good policy had before inclined him. He entered at last into the cause of his brother-in-law and the distressed English. He persuaded the King of Denmark to enter into the same measures, who agreed to invade England with a fleet of a thousand ships. Drone, an Irish king, declared in their favor, and supplied the sons of Earl Godwin with vessels and men, with which they held the English coast in continual alarms.

[Sidenote: A.D. 1069.]

Whilst the forces of this powerful confederacy were collecting on all sides, and prepared to enter England, equal dangers threatened from within the kingdom. Edric the Forester, a very brave and popular Saxon, took up arms in the counties of Hereford and Salop, the country of the ancient Silures, and inhabited by the same warlike and untamable race of men. The Welsh strengthened him with their forces, and Cheshire joined in the revolt. Hereward le Wake, one of the most brave and indefatigable soldiers of his time, rushed with a numerous band of fugitives and outlaws from the fens of Lincoln and the Isle of Ely, from whence, protected by the situation of the place, he had for some time carried on an irregular war against the Normans. The sons of Godwin landed with a strong body in the West; the fire of rebellion ran through the kingdom; Cornwall, Devon, Dorset, at once threw off the yoke. Daily skirmishes were fought in every part of the kingdom, with various success and with great bloodshed. The Normans retreated to their castles, which the English had rarely skill or patience to master; out of these they sallied from time to time, and asserted their dominion. The conquered English for a moment resumed their spirit; the forests and morasses, with which this island then, abounded, served them for fortifications, and their hatred to the Normans stood in the place of discipline; each man, exasperated by his own wrongs, avenged them in his own manner. Everything was full of blood and violence: murders, burnings, rapine, and confusion overspread the whole kingdom. During these distractions, several of the Normans quitted the country, and gave up their possessions, which they thought not worth holding in continual horror and danger.

[Sidenote: A.D. 1070.]

In the midst of this scene of disorder, the king alone was present to himself and to his affairs. He first collected all the forces on whom he could depend within the kingdom, and called powerful succors from Normandy. Then he sent a strong body to repress the commotions in the West; but he reserved the greatest force and his own presence against the greatest danger, which menaced from the North. The Scots had penetrated as far as Durham; they had taken the castle, and put the garrison to the sword. A like fate attended York from the Danes, who had entered the Humber with a formidable fleet. They put this city into the hands of the English malcontents, and thereby influenced all the northern counties in their favor. William, when he first perceived the gathering of the storm, endeavored, and with some success, to break the force of the principal blow by a correspondence at the court of Denmark; and now he entirely blunted the weapon by corrupting, with a considerable sum, the Danish general. It was agreed, to gratify that piratical nation, that they should plunder some part of the coast, and depart without further disturbance. By this negotiation the king was enabled to march with an undissipated force against the Scots and the principal body of the English. Everything yielded. The Scots retired into their own country. Some of the most obnoxious of the English fled along with them. One desperate party, under the brave Waltheof, threw themselves into York, and ventured alone to resist his victorious army. William pressed the siege with vigor, and, notwithstanding the prudent dispositions of Waltheof, and the prodigies of valor he displayed in its defence, standing alone in the breach, and maintaining his ground gallantly and successfully, the place was at last reduced by famine. The king left his enemies no time to recover this disaster; he followed his blow, and drove all who adhered to Edgar Atheling out of all the countries northward of the Humber. This tract he resolved entirely to depopulate, influenced by revenge, and by distrust of the inhabitants, and partly with a view of opposing an hideous desert of sixty miles in extent as an impregnable barrier against all attempts of the Scots in favor of his disaffected subjects. The execution of this barbarous project was attended with all the havoc and desolation that it seemed to threaten. One hundred thousand are said to have perished by cold, penury, and disease. The ground lay untilled throughout that whole space for upwards of nine years. Many of the inhabitants both of this and all other parts of England fled into Scotland; but they were so received by King Malcolm as to forget that they had lost their country. This wise monarch gladly seized so fair an opportunity, by the exertion of a benevolent policy, to people his dominions, and to improve his native subjects. He received the English nobility according to their rank, he promoted them to offices according to their merit, and enriched them by considerable estates from his own demesne. From these noble refugees several considerable families in Scotland are descended.

William, on the other hand, amidst all the excesses which the insolence of victory and the cruel precautions of usurped authority could make him commit, gave many striking examples of moderation and greatness of mind. He pardoned Waltheof, whose bravery he did not the less admire because it was exerted against himself. He restored him to his ancient honors and estates; and thinking his family strengthened by the acquisition of a gallant man, he bestowed upon him his niece Judith in marriage. On Edric the Forester, who lay under his sword, in the same generous manner he not only bestowed his life, but honored it with an addition of dignity.

The king, having thus, by the most politic and the most courageous measures, by art, by force, by severity, and by clemency, dispelled those clouds which had gathered from every quarter to overwhelm him, returned triumphant to Winchester, where, as if he had newly acquired the kingdom, he was crowned with great solemnity. After this he proceeded to execute the plan he had long proposed of modelling the state according to his own pleasure, and of fixing his authority upon an immovable foundation.

There were few of the English who in the late disturbances had not either been active against the Normans or shown great disinclination to them. Upon some right, or some pretence, the greatest part of their lands were adjudged to be forfeited. William gave these lands to Normans, to be held by the tenure of knight-service, according to the law which modified that service in all parts of Europe. These people he chose because he judged they must be faithful to the interest on which they depended; and this tenure he chose because it raised an army without expense, called it forth at the least warning, and seemed to secure the fidelity of the vassal by the multiplied ties of those services which were inseparably annexed to it. In the establishment of these tenures, William only copied the practice which was now become very general. One fault, however, he seems to have committed in this distribution: the immediate vassals of the crown were too few; the tenants in capite at the end of this reign did not exceed seven hundred; the eyes of the subject met too many great objects in the state besides the state itself; and the dependence of the inferior people was weakened by the interposal of another authority between them and the crown, and this without being at all serviceable to liberty. The ill consequence of this was not so obvious whilst the dread of the English made a good correspondence between the sovereign and the great vassals absolutely necessary; but it afterwards appeared, and in a light very offensive to the power of our kings.

As there is nothing of more consequence in a state than the ecclesiastical establishment, there was nothing to which this vigilant prince gave more of his attention. If he owed his own power to the influence of the clergy, it convinced him how necessary it was to prevent that engine from being employed in its turn against himself. He observed, that, besides the influence they derived from their character, they had a vast portion of that power which always attends property. Of about sixty thousand knights' fees, which England was then judged to contain, twenty-eight thousand were in the hands of the clergy; and these they held discharged of all taxes, and free from every burden of civil or military service: a constitution undoubtedly no less prejudicial to the authority of the state than detrimental to the strength of the nation, deprived of so much revenue, so many soldiers, and of numberless exertions of art and industry, which were stifled by holding a third of the soil in dead hands out of all possibility of circulation. William in a good measure remedied these evils, but with the great offence of all the ecclesiastic orders. At the same time that he subjected the Church lands to military service, he obliged each monastery and bishopric to the support of soldiers, in proportion to the number of knights' fees that they possessed. No less jealous was he of the Papal pretensions, which, having favored so long as they served him as the instruments of his ambition, he afterwards kept within very narrow bounds. He suffered no communication with Rome but by his knowledge and approbation. He had a bold and ambitious Pope to deal with, who yet never proceeded to extremities with nor gained one advantage over William during his whole reign,—although he had by an express law reserved to himself a sort of right in approving the Pope chosen, by forbidding his subjects to yield obedience to any whose right the king had not acknowledged.

To form a just idea of the power and greatness of this king, it will be convenient to take a view of his revenue. And I the rather choose to dwell a little upon this article, as nothing extends to so many objects as the public finances, and consequently nothing puts in a clearer or more decisive light the manners of the people, and the form, as well as the powers, of government at any period.

The first part of this consisted of the demesne. The lands of the crown were, even before the Conquest, very extensive. The forfeitures consequent to that great change had considerably increased them. It appears from the record of Domesday, that the king retained in his own hands no fewer than fourteen hundred manors. This alone was a royal revenue. However, great as it really was, it has been exaggerated beyond all reason. Ordericus Vitalis, a writer almost contemporary, asserts that this branch alone produced a thousand pounds a day,[72]—which, valuing the pound, as it was then estimated, at a real pound of silver, and then allowing for the difference in value since that time, will make near twelve millions of our money. This account, coming from such an authority, has been copied without examination by all the succeeding historians. If we were to admit the truth of it, we must entirely change our ideas concerning the quantity of money which then circulated in Europe. And it is a matter altogether monstrous and incredible in an age when there was little traffic in this nation, and the traffic of all nations circulated but little real coin, when the tenants paid the greatest part of their rents in kind, and when it may be greatly doubted whether there was so much current money in the nation as is said to have come into the king's coffers from this one branch, of his revenue only. For it amounts to a twelfth part of all the circulating species which a trade infinitely more extensive has derived from sources infinitely more exuberant, to this wealthy nation, in this improved age. Neither must we think that the whole revenue of this prince ever rose to such a sum. The great fountain which fed his treasury must have been Danegelt, which, upon any reasonable calculation, could not possibly exceed 120,000l. of our money, if it ever reached that sum. William was observed to be a great hoarder, and very avaricious; his army was maintained without any expense to him, his demesne supported his household; neither his necessary nor his voluntary expenses were considerable. Yet the effects of many years' scraping and hoarding left at his death but 60,000l.,—not the sixth part of one year's income, according to this account, of one branch of his revenue; and this was then esteemed a vast treasure. Edgar Atheling, on being reconciled to the king, was allowed a mark a day for his expenses, and he was thought to be allowed sufficiently, though he received it in some sort as an equivalent for his right to the crown. I venture on this digression, because writers in an ignorant age, making guesses at random, impose on more enlightened times, and affect by their mistakes many of our reasonings on affairs of consequence; and it is the error of all ignorant people to rate unknown times, distances, and sums very far beyond their real extent. There is even something childish and whimsical in computing this revenue, as the original author has done, at so much a day. For my part, I do not imagine it so difficult to come at a pretty accurate decision of the truth or falsehood of this story.

The above-mentioned manors are charged with rents from five to an hundred pounds each. The greatest number of those I have seen in print are under fifty; so that we may safely take that number as a just medium; and then the whole amount of the demesne rents will be 70,000l., or 210,000l. of our money. This, though almost a fourth less than the sum stated by Vitalis, still seems a great deal too high, if we should suppose the whole sum, as that author does, to be paid in money, and that money to be reckoned by real pounds of silver. But we must observe, that, when sums of money are set down in old laws and records, the interpretation of those words, pounds and shillings, is for the most part oxen, sheep, corn, and provision. When real coin money was to be paid, it was called white money, or argentum album, and was only in a certain stipulated proportion to what was rendered in kind, and that proportion generally very low. This method of paying rent, though it entirely overturns the prodigious idea of that monarch's pecuniary wealth, was far from being less conducive to his greatness. It enabled him to feed a multitude of people,—one of the surest and largest sources of influence, and which always outbuys money in the traffic of affections. This revenue, which was the chief support of the dignity of our Saxon kings, was considerably increased by the revival of Danegelt, of the imposition of which we have already spoken, and which is supposed to have produced an annual income of 40,000l. of money, as then valued.

The nest branch of the king's revenue were the feudal duties, by him first introduced into England,—namely, ward, marriage, relief, and aids. By the first, the heir of every tenant who held immediately from the crown, during his minority, was in ward for his body and his land to the king; so that he had the formation of his mind at that early and ductile age to mould to his own purposes, and the entire profits of his estate either to augment his demesne or to gratify his dependants: and as we have already seen how many and how vast estates, or rather, princely possessions, were then held immediately of the crown, we may comprehend how important an article this must have been.

Though the heir had attained his age before the death of his ancestor, yet the king intruded between him and his inheritance, and obliged him to redeem, or, as the term then was, to relieve it. The quantity of this relief was generally pretty much at the king's discretion, and often amounted to a very great sum.

But the king's demands on his rents in chief were not yet satisfied. He had a right and interest in the marriage of heirs, both males and females, virgins and widows,—and either bestowed them at pleasure on his favorites, or sold them to the best bidder. The king received for the sale of one heiress the sum of 20,000l., or 60,000l. of our present money,—and this at a period when the chief estates were much reduced. And from hence was derived a great source of revenue, if this right were sold,—of influence and attachment, if bestowed.

Under the same head of feudal duties were the casual aids to knight his eldest son and marry his eldest daughter. These duties could be paid but once, and, though not considerable, eased him in these articles of expenses.

After the feudal duties, rather in the order than in point of value, was the profit which arose from the sale of justice. No man could then sue in the king's court by a common or public right, or without paying largely for it,—sometimes the third, and sometimes even half, the value of the estate or debt sued for. These presents were called oblations; and the records preceding Magna Charta, and for some time after, are full of them. And, as the king thought fit, this must have added greatly to his power or wealth, or indeed to both.

The fines and amercements were another branch, and this, at a time when disorders abounded, and almost every disorder was punished by a fine, was a much greater article than at first could readily be imagined,—- especially when we consider that there were no limitations in this point but the king's mercy, particularly in all offences relating to the forest, which were of various kinds, and very strictly inquired into. The sale of offices was not less considerable. It appears that all offices at that time were, or might be, legally and publicly sold,—that the king had many and very rich employments in his gift, and, though it may appear strange, not inferior to, if they did not exceed, in number and consequence, those of our present establishment. At one time the great seal was sold for three thousand marks. The office of sheriff was then very lucrative: this charge was almost always sold. Sometimes a county paid a sum to the king, that he might appoint a sheriff whom they liked; sometimes they paid as largely to prevent him from appointing a person disagreeable to them; and thus the king had often from the same office a double profit in refusing one candidate and approving the other. If some offices were advantageous, others were burdensome; and the king had the right, or was at least in the unquestioned practice, of forcing his subjects to accept these employments, or to pay for there immunity; by which means he could either punish his enemies or augment his wealth, as his avarice or his resentments prevailed.

The greatest part of the cities and trading towns were under his particular jurisdiction, and indeed in a state not far removed from slavery. On these he laid a sort of imposition, at such a time and in such a proportion as he thought fit. This was called a tallage. If the towns did not forthwith pay the sum at which they were rated, it was not unusual, for their punishment, to double the exaction, and to proceed in levying it by nearly the same methods and in the same manner now used to raise a contribution in an enemy's country.

But the Jews were a fund almost inexhaustible. They were slaves to the king in the strictest sense; insomuch that, besides the various tallages and fines extorted from them, none succeeded to the inheritance of his father without the king's license and an heavy composition. He sometimes even made over a wealthy Jew as a provision to some of his favorites for life. They were almost the only persons who exercised usury, and thus drew to themselves the odium and wealth of the whole kingdom; but they were only a canal, through which it passed to the royal treasury. And nothing could be more pleasing and popular than such exactions: the people rejoiced, when they saw the Jews plundered,—not considering that they were a sort of agents for the crown, who, in proportion to the heavy taxes they paid, were obliged to advance the terms and enforce with greater severity the execution of their usurious contracts. Through them almost the whole body of the nobility were in 'debt to the king; and when he thought proper to confiscate the effects of the Jews, the securities passed into his hands; and by this means he must have possessed one of the strongest and most terrible instruments of authority that could possibly be devised, and the best calculated to keep the people in an abject and slavish dependence.

The last general head of his revenue were the customs, prisages, and other impositions upon trade. Though the revenue arising from traffic in this rude period was much limited by the then smallness of its object, this was compensated by the weight and variety of the exactions levied by an occasional exertion of arbitrary power, or the more uniform system of hereditary tyranny. Trade was restrained, or the privilege granted, on the payment of tolls, passages, paages, pontages, and innumerable other vexatious imposts, of which, only the barbarous and almost unintelligible names subsist at this day.

These were the most constant and regular branches of the revenue. But there were other ways innumerable by which money, or an equivalent in cattle, poultry, horses, hawks, and dogs, accrued to the exchequer. The king's interposition in marriages, even where there was no pretence from tenure, was frequently bought, as well as in other negotiations of less moment, for composing of quarrels, and the like; and, indeed, some appear on the records, of so strange and even ludicrous a nature, that it would not be excusable to mention them, if they did not help to show from how many minute sources this revenue was fed, and how the king's power descended to the most inconsiderable actions of private life.[73] It is not easy to penetrate into the true meaning of all these particulars, but they equally suffice to show the character of government in those times. A prince furnished with so many means of distressing enemies and gratifying friends, and possessed of so ample a revenue entirely independent of the affections of his subjects, must have been very absolute in substance and effect, whatever might have been the external forms of government.

For the regulation of all these revenues, and for determining all questions which concerned them, a court was appointed, upon the model of a court of the same nature, said to be of ancient use in Normandy, and called the Exchequer.

There was nothing in the government of William conceived in a greater manner, or more to be commended, than the general survey he took of his conquest. An inquisition was made throughout the kingdom concerning the quantity of land which was contained in each county,—the name of the deprived and the present proprietor,—the stock of slaves, and cattle of every kind, which it contained. All these were registered in a book, each article beginning with the king's property, and proceeding downward, according to the rank of the proprietors, in an excellent order, by which might be known at one glance the true state of the royal revenues, the wealth, consequence, and natural connections of every person in the kingdom,—in order to ascertain the taxes that might be imposed, and, to serve purposes in the state as well as in civil causes, to be general and uncontrollable evidence of property. This book is called Domesday or the Judgment Book, and still remains a grand monument of the wisdom of the Conqueror,—a work in all respects useful and worthy of a better age.

The Conqueror knew very well how much discontent must have arisen from the great revolutions which his conquest produced in all men's property, and in the general tenor of the government. He, therefore, as much as possible to guard against every sudden attempt, forbade any light or fire to continue in any house after a certain bell, called curfew, had sounded. This bell rung at about eight in the evening. There was policy in this; and it served to prevent the numberless disorders which arose from the late civil commotions.

For the same purpose of strengthening his authority, he introduced the Norman law, not only in its substance, but in all its forms, and ordered that all proceedings should be had according to that law in the French language.[74] The change wrought by the former part of this regulation could not have been very grievous; and it was partly the necessary consequence of the establishment of the new tenures, and which wanted a new law to regulate them: in other respects the Norman institutions were not very different from the English. But to force, against nature, a new language upon a conquered people, to make them, strangers in those courts of justice in which they were still to retain a considerable share, to be reminded, every time they had recourse to government for protection, of the slavery in which it held them,—this is one of those acts of superfluous tyranny from which very few conquering nations or parties have forborne, though no way necessary, but often prejudicial to their safety.

[Sidenote: A.D. 1071.]

These severities, and affronts more galling than severities, drove the English to another desperate attempt, which was the last convulsive effort of their expiring freedom. Several nobles, prelates, and others, whose estates had been confiscated, or who were in daily apprehension of their confiscation, fled into the fens of Lincoln and Ely, where Hereward still maintained his ground. This unadvised step completed the ruin of the little English interest that remained. William hastened to fill up the sees of the bishops and the estates of the nobles with his Norman favorites. He pressed the fugitives with equal vivacity; and at once to cut off all the advantage they derived from their situation, he penetrated into the Isle of Ely by a wooden bridge two miles in length; and by the greatness of the design, and rapidity of the execution, as much as by the vigor of his charge, compelled them to surrender at discretion. Hereward alone escaped, who disdained to surrender, and had cut his way through his enemies, carrying his virtue and his sword, as his passports, wheresoever fortune should conduct him. He escaped happily into Scotland, where, as usual, the king was making some slow movements for the relief of the English. William lost no time to oppose him, and had passed with infinite difficulty through a desert of his own making to the frontiers of Scotland. Here he found the enemy strongly intrenched. The causes of the war being in a good measure spent by William's late successes, and neither of the princes choosing to risk a battle in a country where the consequences of a defeat must be so dreadful, they agreed to an accommodation, which included a pardon for Edgar Atheling on a renunciation of his title to the crown. William on this occasion showed, as he did on all occasions, an honorable and disinterested sense of merit, by receiving Hereward to his friendship, and distinguishing him by particular favors and bounties. Malcolm, by his whole conduct, never seemed intent upon coming to extremities with William: he was satisfied with keeping this great warrior in some awe, without bringing things to a decision, that might involve his kingdom in the same calamitous fate that had oppressed England; whilst his wisdom enabled him to reap advantages from the fortunes of the conquered, in drawing so many useful people into his dominions, and from the policy of the Conqueror, in imitating those feudal regulations which he saw his neighbor force upon the English, and which appeared so well calculated for the defence of the kingdom. He compassed this the more easily, because the feudal policy, being the discipline of all the considerable states in Europe, appeared the masterpiece of government.

[Sidenote: A.D. 1073.]

If men who have engaged in vast designs could ever promise themselves repose, William, after so many victories, and so many political regulations to secure the fruit of them, might now flatter himself with some hope of quiet. But disturbances were preparing for his old age from a new quarter, from whence they were less expected and less tolerable,—from the Normans, his companions in victory, and from his family, which he found not less difficulty in governing than his kingdom. Nothing but his absence from England was wanting to make the flame blaze out. The numberless petty pretensions which the petty lords his neighbors on the continent had on each other and on William, together with their restless disposition and the intrigues of the French court, kept alive a constant dissension, which made the king's presence on the continent frequently necessary. The Duke of Anjou had at this time actually invaded his dominions. He was obliged to pass over into Normandy with an army of fifty thousand men. William, who had conquered England by the assistance of the princes on the continent, now turned against them the arms of the English, who served him with bravery and fidelity; and by their means he soon silenced all opposition, and concluded the terms of an advantageous peace. In the mean time his Norman subjects in England, inconstant, warlike, independent, fierce by nature, fiercer by their conquest, could scarcely brook that subordination in which their safety consisted. Upon some frivolous pretences, chiefly personal disgusts,[75] a most dangerous conspiracy was formed: the principal men among the Normans were engaged in it; and foreign correspondence was not wanting. Though this conspiracy was chiefly formed and carried on by the Normans, they knew so well the use which William on this occasion would not fail to make of his English subjects, that they endeavored, as far as was consistent with secrecy, to engage several of that nation, and above all, the Earl Waltheof, as the first in rank and reputation among his countrymen. Waltheof, thinking it base to engage in any cause but that of his country against his benefactor, unveils the whole design to Lanfranc, who immediately took measures for securing the chief conspirators. He dispatched messengers to inform the king of his danger, who returned without delay at the head of his forces, and by his presence, and his usual bold activity, dispersed at once the vapors of this conspiracy. The heads were punished. The rest, left under the shade of a dubious mercy, were awed into obedience. His glory was, however, sullied by his putting to death Waltheof, who had discovered the conspiracy; but he thought the desire the rebels had shown of engaging him in their designs demonstrated sufficiently that Waltheof still retained a dangerous power. For as the years, so the suspicions, of this politic prince increased,—at whose time of life generosity begins to appear no more than a splendid weakness.

[Sidenote: A.D. 1079]

These troubles were hardly appeased, when others began to break forth in his own family, which neither his glory, nor the terror which held a great nation in chains, could preserve in obedience to him. To remove in some measure the jealousy of the court of France with regard to his invasion of England, he had promised upon his acquisition of that kingdom to invest his eldest son, Robert, with the Duchy of Normandy. But as his new acquisition did not seem so secure as it was great and magnificent, he was far from any thoughts of resigning his hereditary dominions, which he justly considered as a great instrument in maintaining his conquests, and a necessary retreat, if he should be deprived of them by the fortune of war. So long as the state of his affairs in England appeared unsettled, Robert acquiesced in the reasonableness of this conduct; but when he saw his father established on his throne, and found himself growing old in an inglorious subjection, he began first to murmur at the injustice of the king, soon after to cabal with the Norman barons and at the court of France, and at last openly rose in rebellion, and compelled the vassals of the Duchy to do him homage. The king was not inclined to give up to force what he had refused to reason. Unbroken with age, unwearied with so many expeditions, he passed again into Normandy, and pressed his son with the vigor of a young warrior.

This war, which was carried on without anything decisive for some time, ended by a very extraordinary and affecting incident. In one of those skirmishes which were frequent according to the irregular mode of warfare in those days, William and his son Robert, alike in a forward and adventurous courage, plunged into the thickest of the fight, and unknowingly encountered each other. But Robert, superior by fortune, or by the vigor of his youth, wounded and unhorsed the old monarch, and was just on the point of pursuing his unhappy advantage to the fatal extremity, when the well-known voice of his father at once struck his ears and suspended his arm. Blushing for his victory, and overwhelmed with the united emotions of grief, shame, and returning piety, he fell on his knees, poured out a flood of tears, and, embracing his father, besought him for pardon. The tide of nature returning strongly on both, the father in his turn embraced his son, and bathed him with his tears; whilst the combatants on either side, astonished at so unusual a spectacle, suspended the fight, applauded this striking act of filial piety and paternal tenderness, and pressed that it might become the prelude to a lasting peace. Peace was made, but entirely to the advantage of the father, who carried his son into England, to secure Normandy from the dangers to which his ambition and popularity might expose that dukedom.

That William might have peace upon no part, the Welsh and Scots took advantage of these troubles in his family to break into England: but their expeditions were rather incursions than invasions: they wasted the country, and then retired to secure their plunder. But William, always troubled, always in action, and always victorious, pursued them and compelled them to a peace, which was not concluded but by compelling the King of Scotland and all the princes of Wales to do him homage. How far this homage extended with regard to Scotland I find it difficult to determine.

Robert, who had no pleasure but in action, as soon as this war was concluded, finding that he could not regain his father's confidence, and that he had no credit at the court of England, retired to that of France. Edgar Atheling saw likewise that the innocence of his conduct could not make amends for the guilt of an undoubted title to the crown, and that the Conqueror, soured by continual opposition, and suspicious through age and the experience of mankind, regarded him with an evil eye. He therefore desired leave to accompany Robert out of the kingdom, and then to make a voyage to the Holy Land. This leave was readily granted. Edgar, having displayed great valor in useless acts of chivalry abroad, after the Conqueror's death returned to England, where he long lived in great tranquillity, happy in himself, beloved by all the people, and unfeared by those who held his sceptre, from his mild and inactive virtue.

[Sidenote: A.D. 1084.]

[Sidenote: A.D. 1087.]

William had been so much a stranger to repose that it became no longer an object desirable to him. He revived his claim, to the Vexin Francais, and some other territories on the confines of Normandy. This quarrel, which began, between him and the King of France on political motives, was increased into rancor and bitterness, first, by a boyish contest at chess between their children, which was resented, more than became wise men, by the fathers; it was further exasperated by taunts and mockeries yet less becoming their age and dignity, but which infused a mortal venom into the war. William entered first into the French territories, wantonly wasting the country, and setting fire to the towns and villages. He entered Mantes, and as usual set it on fire; but whilst he urged his horse over the smoking ruins, and pressed forward to further havoc, the beast, impatient of the hot embers which burned his hoofs, plunged and threw his rider violently on the saddle-bow. The rim of his belly was wounded; and this wound, as William was corpulent and in the decline of life, proved fatal. A rupture ensued, and he died at Rouen, after showing a desire of making amends for his cruelty by restitutions to the towns he had destroyed, by alms and endowments, the usual fruits of a late penitence, and the acknowledgments which expiring ambition pays to virtue.

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