The History of England in Three Volumes, Vol. I., Part A. · David Hume
THE FEUDAL AND ANGLO-NORMAN GOVERNMENT AND MANNERS.
In the Saxon times, no appeal was received in the king’s court, except upon the denial or delay of justice by the inferior courts; and the same practice was still observed in most of the feudal kingdoms of Europe. But the great power of the Conqueror established at first in England an authority which the monarchs in France were not able to attain till the reign of St. Lewis, who lived near two centuries after: he empowered his court to receive appeals both from the courts of barony and the county courts, and by that means brought the administration of justice ultimately into the hands of the sovereign.[***] And, lest the expense or trouble of a journey to court should discourage suitors, and make them acquiesce in the decision of the inferior judicatures, itinerant judges were afterwards established, who made their circuits throughout the kingdom, and tried all causes that were brought before them.[****] [* Malms, lib. iv. p. 123.] [** Dugd. Orig. Jurid. p. 25.] [*** Madox, Hist. of the Exch, p.65. Glanv. lib. xii. cap. 1, 7. LL. Hen. I. sect. 31, apud Wilkins, p. 248. Fitz-Stephens, p. 36. Coke’s Comment, on the Statute of Mulbridge, cap. 20.] [**** Madox, Hist, of the Exch. p. 83, 84, 100. Gerv. Dorob. p. 1410 What made the Anglo-Norman barons more readily submit to appeals from their court to the king’s court of exchequer, was their being accustomed to like appeals in Normandy to the ducal court of exchequer. See Gilbert’s History of the Exchequer, p. 1, 2; though the author thinks it doubtful whether the Norman court was not rather copied from English. (p. 6.)]
By this expedient the courts of barony were kept in awe: and if they still preserved some influence, it was only from the apprehensions which the vassals might entertain of disobliging their superior, by appealing from his jurisdiction. But tha county courts were much discredited; and as the freeholders were found ignorant of the intricate principles and forms of the new law, the lawyers gradually brought all business before the king’s judges, and abandoned the ancient simple and popular judicature. After this manner the formalities of justice, which, though they appear tedious and cumbersome, are found requisite to the support of liberty in all monarchical governments, proved at first, by a combination of causes, very advantageous to royal authority in England. The power of the Norman kings was also much supported by a great revenue; and by a revenue that was fixed, perpetual, and independent of the subject. The people, without betaking themselves to arms, had no check upon the king, and no regular security for the due administration of justice. In those days of violence, many instances of oppression passed unheeded; and soon after were openly pleaded as precedents, which it was unlawful to dispute or control. Princes and ministers were too ignorant to be themselves sensible of the advantages attending an equitable administration; and there was no established council or assembly which could protect the people, and, by withdrawing supplies, regularly and peaceably admonish the king of his duty, and insure the execution of the laws.
The first branch of the king’s stated revenue was the royal demesnes, or crown lands, which were very extensive, and comprehended, beside a great number of manors, most of the chief cities of the kingdom. It was established by law, that the king could alienate no part of his demesne, and that he himself, or his successor, could at any time resume such donations:[*] but this law was never regularly observed; which happily rendered, in time, the crown somewhat more dependent. [* [*Feta], lib. i. cap. 8, sect. 17; lib. iii. cap. 6, sect. 3. Bracton, lib ii. cap. 5.] The rent of the crown-lands, considered merely as so much riches, was a source of power: the influence of the king over his tenants and the inhabitants of his towns increased this power: but the other numerous branches of his revenue, besides supplying his treasury, gave, by their very nature, a great latitude to arbitrary authority, and were a support of the prerogative; as will appear from an enumeration of them. The king was never content with the stated rents, but levied heavy talliages at pleasure on the inhabitants both of town and, country who lived within his demesne. All bargains of sale, in order to prevent theft, being prohibited, except in boroughs and public markets,[*] he pretended to exact tolls on all goods whist were there sold.[**] He seized two hogsheads, one before and one behind the mast, from every vessel that imported wine. All goods paid to his customs a proportional part of their value:[***] passage over bridges and on rivers was loaded with tolls at pleasure:[****] and though the boroughs by degrees bought the liberty of farming these impositions, yet the revenue profited by these bargains, new sums were often exacted for the renewal and confirmation of their Charters,[*****] and the people were thus held in perpetual dependence.
Such was the situation of the inhabitants within the royal demesnes. But the possessors of land, or the military tenants, though they were better protected, both by law and by the great privilege of carrying arms, were, from the nature of their tenures, much exposed to the inroads of power, and possessed not what we should esteem in our age a very durable security. The Conqueror ordained that the barons should be obliged to pay nothing beyond their stated services,[******] except a reasonable aid to ransom his person if he were taken in war, to make his eldest son a knight, and to marry his eldest daughter. What should on these occasions be deemed a reasonable aid, was not determined; and the demands of the crown were so far discretionary. The king could require in war the personal attendance of his vassals, that is, of almost all the landed proprietors; and if they declined the service, they were obliged to pay him a composition in money, which was called a scutage. The sum was, during some reigns, precarious and uncertain; it was sometimes levied without allowing the vassal the liberty of personal service;[*******] and it was a usual artifice of the king’s to pretend an expedition, that he might be entitled to levy the scutage from his military tenants. [* LL. Will. i. cap. 61.]
But besides escheats from default of heirs, those which ensued from crimes or breach of duty towards the superior lord were frequent in ancient times. If the vassal, being thrice summoned to attend his superior’s court, and do fealty, neglected or refused obedience, he forfeited all title to his land.[*] If he denied his tenure, or refused his service, he was exposed to the same penalty.[**] If he sold his estate without license from his lord,[***] or if he sold it upon any other tenure or title than that by which he himself held it,[****] he lost all right to it. The adhering to his lord’s enemies,[*****] deserting him in war,[******] betraying his secrets,[*******] debauching his wife or his near relations,[********] or even using indecent freedoms with them,[*********] might be punished by forfeiture. The higher crimes, rapes, robbery, murder, arson, etc., were called felony; and being interpreted want of fidelity to his lord, made him lose his fief.[**********] Even where the felon was vassal to a baron, though his immediate lord enjoyed the forfeiture, the king might retain possession of his estate during a twelvemonth, and had the right of spoiling and destroying it, unless the baron paid him a reasonable composition.[***********] We have not here enumerated all the species of felonies, or of crimes by which forfeiture was incurred: we have said enough to prove that the possession of feudal property was anciently somewhat precarious, and that the primary idea was never lost, of its being a kind of fee or benefice.
If the heir were a female, the king was entitled to offer her any husband of her rank he thought proper; and if she refused him, she forfeited her land. Even a male heir could not marry without the royal consent; and it was usual for men to pay large sums for the liberty of making their own choice in marriage.[**] No man could dispose of his land, either by sale or will, without the consent of his superior. The possessor was never considered as full proprietor; he was still a kind of beneficiary; and could not oblige his superior to accept of any vassal that was not agreeable to him. Fines, amerciaments, and oblatas, as they were called, were another considerable branch of the royal power and revenue. The ancient records of the exchequer, which are still preserved, give surprising accounts of the numerous fines anc amerciaments levied in those days,[****] and of the strange inventions fallen upon to exact money from the subject. [* Madox, Hist. of the Exch. p. 223.] [** Madox, Hist. of the Exch. p. 322.] [*** Madox, Hist. of the Exch. p. 320.] [**** Madox, Hist. of the Exch. p. 272.]
Sometimes the party litigant offered the king a certain portion, a half, a third, a fourth, payable out of the debts which he, as the executor of justice, should assist him in recovering.[**********] Theophania de Westland agreed to pay the half of two hundred and twelve marks, that she might recover that sum against James de Fughleston;[*] Solomon the Jew engaged to pay one mark out of every seven that he should recover against Hugh dè la Hose;[************] Nicholas Morrel promised to pay sixty pounds, that the earl of Flanders might be distrained to pay him three hundred and forty-three pounds, which the earl had taken from him; and these sixty pounds were to be paid out of the first money that Nicholas should recover from the earl.[*************] [* Madox, Hist. of the Exch. p. 274, 309.] [** Madox, Hist. of the Exch. p. 295] [*** Madox, Hist. of the Exch. p. 295.] [**** Madox, Hist. of the Exch. p. 296. He paid two hundred marks, a great sum in those days.] [***** Madox, Hist. of the Exch. p. 296.] [****** Madox, Hist. of the Exch. p. 296.] [******* Madox, Hist. of the Exch. p 298.] [******** Madox, Hist. of the Exch. p. 302.] [********* Madox, Hist. of the Exch. chap. xii.] [********** Madox, Hist. of the Exch. p. 311.]
It is really amusing to remark the strange business in which the king sometimes interfered, and never without a present; the wife of Hugh de Nevile gave the king two hundred hens, that she might lie with her husband one night;[***********] and she brought with her two sureties, who answered each for a hundred hens. [** Madox, Hist. of the Exch. p. 323.] [*** Madox, Hist. of the Exch. p. 323.] [**** Madox, Hist. of the Exch. p. 323.] [***** Madox, Hist. of the Exch. p. 324.] [****** Madox, Hist. of the Exch. p. 324.] [******* Madox, Hist. of the Exch. p. 232, 233, etc.] [******** Madox, Hist. of the Exch. p. 298.] [********* Madox, Hist. of the Exch. p. 305.] [*0: Madox, Hist. of the Exch. p. 325.] [*1: Madox, Hist. of the Exch. p. 326 ] [*2: Madox, Hist. of the Exch. p 326] It is probable that her husband was a prisoner, which debarred her from having access to him. The abbot of Rucford paid ten marks for leave to erect houses and place men upon his land near Welhang, in order to secure his wood there from being stolen; Hugh, archdeacon of Wells, gave one tun of wine for leave to carry six hundred summs of corn whither he would; Peter de Perariis gave twenty marks for leave to salt fishes as Peter Chevalier used to do.
It was usual to pay high fines, in order to gain the king’s good will or mitigate his anger. In the reign of Henry II., Gilbert, the son of Fergus, fines in nine hundred and nineteen pounds nine shillings, to obtain that prince’s favor; William de Chataignes, a thousand marks, that he would remit his displeasure. In the reign of Henry III., the city of London fines in no less a sum than twenty thousand pounds on the same account. The king’s protection and good offices of every kind were bought and sold. Robert Grislet paid twenty marks of silver, that the king would help him against the earl of Mortaigne in a certain plea: Robert de Cundet gave thirty marks of silver, that the king would bring him to an accord with the bishop of Lincoln; Ralph de Bréckham gave a hawk, that the king would protect him; and this is a very frequent reason for payments; John, son of Ordgar, gave a Norway hawk, to have the king’s request to the king of Norway to let him have his brother Godard’s chattels; Richard de Neville gave twenty palfreys to obtain the king’s request to Isolda Bisset, that she should take him for a husband; Roger Fitz-Walter gave three good palfreys to have the king’s letter to Roger Bertram’s mother, that she should marry him; Eling the dean paid one hundred marks, that his whore and his children might be let out upon bail; the bishop of Winchester gave one tun of good wine for his not putting the king in mind to give a girdle to the countess of Albemarle; Robert de Veaux gave five of the best palfreys, that the king would hold his tongue about Henry Pinel’s wife. There are in the records of exchequer many other singular instances of a like nature.[*] It will, however, be just to remark, that the same ridiculous practices and dangerous abuses prevailed in Normandy, and probably in all the other states of Europe.[**] England was not in this respect more barbarous than its neighbors.
But the most barefaced acts of tyranny and oppression were practised against the Jews, who were entirely out of the protection of law, were extremely odious from the bigotry of the people, and were abandoned to the immeasurable rapacity of the king and his ministers. Besides many other indignities to which they were continually exposed, it appears that they were once all thrown into prison, and the sum of sixty-six thousand marks exacted for their liberty:[*****] at another time, Isaac the Jew paid, alone, five thousand one hundred marks[******] Brim, three thousand marks;[*******] Jurnet, two thousand; Bennet, five hundred: at another, Licorica, widow of David the Jew, of Oxford, was required to pay six thousand marks; and she was delivered over to six of the richest and discreetest Jews in England, who were to answer for the sum.[********] [** Hoveden, Chron. Gerv. p. 1410.] [*** Madox, chap. xiv.] [**** Spel. Gloss, in verbo Forests.] [***** Madox, Hist. of the Exch. p. 151. This happened in the reign of King John.] [****** Madox, Hist. of the Exch, p. 151] [******* Madox, Hist. of the Exch, p. 153.] [******** Madox, Hist. of the Exch, p, 168.] Henry III borrowed five thousand marks from the earl of Cornwall; and for his repayment consigned over to him all the Jews in England. The revenue arising from exactions upon this nation was so considerable, that there was a particular court of exchequer set apart for managing it.
We may judge concerning the low state of commerce among the English, when the Jews, notwithstanding these oppressions, could still find their account in trading among them, and lending them money. And as the improvements of agriculture were also much checked by the immense possessions of the nobility, by the disorders of the times, and by the precarious state of feudal property, it appears that industry of no kind could then have place in the kingdom. It is asserted by Sir Harry Spelman,[*] as an undoubted truth, that, during the reigns of the first Norman princes, every edict of the king, issued with the consent of his privy council, had the full force of law. But the barons surely were not so passive as to intrust a power, entirely arbitrary and despotic, into the hands of the sovereign. It only appears, that the constitution had not fixed any precise boundaries to the royal power; that the right of issuing proclamations on any emergence, and of exacting obedience to them,--a right which was always supposed inherent in the crown,--is very difficult to be distinguished from a legislative authority; that the extreme imperfection of the ancient laws, and the sudden exigencies which often occurred in such turbulent governments, obliged the prince to exert frequently the latent powers of his prerogative; that he naturally proceeded, from the acquiescence of the people, to assume, in many particulars of moment, an authority from which he had excluded himself by express statutes, charters, or concessions, and which was, in the main, repugnant to the general genius of the constitution; and that the lives; the personal liberty, and the properties of all his subjects were less secured by law against the exertion of his arbitrary authority than by the independent power and private connections of each individual.
A great baron, in ancient times, considered himself as a kind of sovereign within his territory; and was attended by courtiers and dependants more zealously attached to him than the ministers of state and the great officers were commonly o their sovereign. He often maintained in his court the parade of royalty, by establishing a justiciary, constable, mareschal, chamberlain, seneschal, and chancellor, and assigning to each of these officers a separate province and command He was usually very assiduous in exercising his jurisdiction, and took such delight in that image of sovereignty, that it was found necessary to restrain his activity, and prohibit him by law from holding courts too frequently.[*] It is not to be doubted but the example set him by the prince, of a mercenary and sordid extortion, would be faithfully copied; and that all his good and bad offices, his justice and injustice, were equally put to sale. He had the power, with the king’s consent, to exact talliages even from the free citizens who lived within his barony; and as his necessities made him rapacious, his authority was usually found to be more oppressive and tyrannical than that of the sovereign.[**] He was ever engaged in hereditary or personal animosities or confederacies with his neighbors, and often gave protection to all desperate adventurers and criminals, who could be useful in serving his violent purposes. He was able alone, in times of tranquillity, to obstruct the execution of justice within his territories; and by combining with a few malecontent barons of high rank and power, he could throw the state into convulsions. And, on the whole, though the royal authority was confined within bounds, and often within very narrow ones, yet the check was Irregular, and frequently the source of great disorders; nor was it derived from the liberty of the people, but from the military power of many petty tyrants, who were equally dangerous to the prince and oppressive to the subject.
The right of primogeniture was introduced with the feudal law; an institution which is hurtful by producing and maintaining an unequal division of private propeny; but is advantageous in another respect, by accustoming the people to a preference in favor of the eldest son, and thereby preventing a partition or disputed succession in the monarchy. The Normans introduced the use of surnames, which tend to preserve the knowledge of families and pedigrees. They abolished none of the old, absurd methods of trial by the cross or ordeal; and they added a new absurdity--the trial by single combat--[***] which became a regular part of jurisprudence, and was conducted with all the order, method, devotion, and solemnity imaginable.[****] The ideas of chivalry also seem to have been imported by the Normans: no traces of those fantastic notions are to be found among the plain and rustic Saxons. [* Char. Will, apud Wilkms, p. 230. Spel. Concil. vol. ii p. 14.] [** Spel. Gloss, in verb. Manus mortua. We are not to imagine, as some have done, that the church possessed lands in this proportion, but only that they and their vassals enjoyed such a proportionable part of the landed property.] [*** LL. Will. cap. 68.] [**** Spel. Gloss, in verbo Campus. The last instance of these duels was in the 16th of Eliz. So long did that absurdity remain.]
The feudal institutions, by raising the military tenants to a kind of sovereign dignity, by rendering personal strength and valor requisite, and by making every knight and baron his own protector and avenger, begat that martial pride and sense of honor which, being cultivated and embellished by the poets and romance writers of the age, ended in chivalry. The virtuous knight fought not only in his own quarrel, but in that of the innocent, of the helpless, and, above all, of the fair, whom he supposed to be forever under the guardianship of his valiant arm. The uncourteous knight who, from his castle, exercised robbery on travellers, and committed violence on virgins, was the object of his perpetual indignation; and he put him to death, without scruple, or trial, or appeal, wherever he met with him. The great independence of men made personal honor and fidelity the chief tie among them, and rendered it the capital virtue of every true knight, or genuine professor of chivalry. The solemnities of single combat, as established by law, banished the notion of every thing unfair or unequal in rencounters, and maintained an appearance of courtesy between the combatants till the moment of their engagement. The credulity of the age grafted on this stock the notion of giants, enchanters, dragons, spells,[*] and a thousand wonders, which still multiplied during the times of the crusades; when men, returning from so great a distance, used the liberty of imposing every fiction on their believing audience. These ideas of chivalry infected the writings, conversation, and behavior of men, during some ages; and even after they were, in a great measure, banished by the revival of learning, they left modern gallantry and the point of honor, which still maintain their influence, and are the genuine off-spring of those ancient affectations.
Text from Project Gutenberg, public domain in the United States.