*87

The Norman Conquest.

*BOOK THE SECOND.

THE NORMAN CONQUEST AND ITS CONSEQUENCES AS AFFECTING THE LAWS AND INSTITUTIONS OF ENGLANDCOMPRISING THE ORIGIN AND SOURCES AND LEADING PRINCIPLES OF THE COMMON LAW OF ENGLAND.

CHAPTER I.

THE NORMAN CONQUEST-REIGN OF WILLIAM I.

Contested Succession on the death of Edward the Confessor-William the Conqueror and Harold the chief Competitors-Victory declares for William-William commences his Reign as Successor of the Anglo-Saxon Kings-His Code-Grants of Land to his Followers-to be held hereditarily as Military Feuds-Prevalence at this time of the Feudal System throughout Europe-Incidents of Feudal Grants, Military Service, Wardship, Marriage, Reliefs, Aids-Lands held by English Thanes also converted into hereditary Feuds-also the Estates of Bishops and Abbots-All Holders of Land bound by Oath of Fidelity to William-Feudal Tenure becomes general—Further Confiscations and Donations to Norman Barons-The Maxim established that all Land came from the Gift of the King-Manorial Rights continued—Greater and Lesser Barons-General Degradation of the Natives-Socage Tenure-Reliefs-Tenure in Villeinage—Customary Courts -Heriots. Conditions of Towns and their Inhabitants after the Conquest-London-Peculiar Customs in London and other Towns-Compilation of Domesday-Its Object--Burgage Tenure, and Free or Common Socage.

Property of the Church and of Ecclesiastical Bodies, how far preserved.

Scheme of Judicial Organization at the Close of the Conqueror's Reign-Sheriff or Vicecomes now presided at County Court.

The Office of Chancellor, and of Master or Keeper of the Rolls.

The Office of Chief Justiciary created-Special Directions given for Trials at the County Court-Precepts of the King-Justices specially appointed for the Trial of Causes-Course of Proceeding in such Cases.

Matters of Ecclesiastical Cognizance removed from the Civil Tribunals to the Ecclesiastical Courts.

Court of Exchequer Established.

Legislative Assemblies-Ancient Curia Regis held three times a Year-the Members who attended the Conqueror's Councils-Matters there disposed of.

On the death of Edward the Confessor, England was afflicted by the miseries of a disputed succession. Harold and William Duke of Nor[*88] mandy were the great competitors. Both claimed under an *appointment from Edward the Confessor (a), but the former being supported by many, perhaps the great body of the English, obtained possession. William, in the latter end of the year 1066, armed with

(a) Lord Litt. Hen. II. i. 40, 41. 360. once removed, Arg. Anti-Norman, p. v. William and Edward were cousins-german

William, King of the English.

88

the papal benediction (a), came to assert his claims against Harold as the usurper of his rights. William's army appears to have been composed wholly of Normans and other foreigners, many of whom had received distinct promises of grants of land, and had even done homage for them (b), and all of whom were animated by hopes of plunder. It was not a contest of nation against nation; but the two competitors sought to decide the question, who had the strictly legal title, by the fate of arms. Victory declared in favor of William at the decisive battle near Hastings. Harold, his brothers, and the flower of the English nobility and gentry in his service, were slain (c); and though Edgar Atheling, on the death of Harold, was chosen by the Londoners as king, further successes assured to William the possession of the throne, and at Christmas he was crowned at Westminster; but in conformity with his original pretensions, the title that he assumed was "King of the English," and he took the usual oath of the Anglo-Saxon kings (d).

The attention of the reader will now be drawn to the consequences which followed upon that memorable event, chiefly as regards the laws relating to property and judicial proceedings.

The Conqueror clearly began with the intention of reigning as the heir of Edward by adoption or appointment (e), and as lawful successor of the Anglo-Saxon kings (f). In this, as in many of the most important acts of his life, he seems to have taken Canute, whose claims to the throne were not altogether dissimilar to his own, as his model (g).

(a) M. Par. p. 2. The Church adjudged England to William by right of inheritance, (e. in the Roman sense,) Thierry, Hist. Norman Conq. i. p. 261.

(6) Chron. de Normand. Thierry, Hist. Norm. Conq. i. p. 290. 294.

(e) In casu cujus (Haroldi cum fratribus suis) ita totius nobilitatis Anglicæ viror omnis emarcuit, quod usque ad diem hunc, nunquam postea in pristinam libertatis gloriam revirescere potuerunt,' 'Hist. Rames. c. xx. p. 462. Devicla namque patriâ hac a Normannis, perditis que cunctis melioribus hominibus istius provinciæ," Heming, p. 271-both English writers.

(d) Lingard, ii. p. 10; M. Par. p. 4; Chron. Lamb. ad. Ann. 1066.

(e) V. Cart. Will. I. sec. xi. Anc. L. i. 492. William Rufus and Henry I. also referred William's title to hereditary succession from Edward the Confessor, Cart. 13 Will. II. Rymer, i. p. 5; Monasticon, vi. p. 1177; Argument, Anti-Normann, p. viii. p. xxi. &c. It may be thought, perhaps, that, after so much has been written on the Norman Conquest, I have gone too much into detail on this subject; but I have not found any one work to which I could refer as giving a satisfactory account of the consequences of the Norman Conquest as it affected the existing laws and institutions; I have therefore resorted to the original

documents.

[*89]

(f) The whole scheme of legislative and judicial organization was kept up. The early grants to the Church were evidently from Anglo-Saxon precedents, v. int. alia. Cart. Will. I., A. D. 1068, to the Church of St. Martin-le-Grand, in London, by inspeximus, Dugdale, Monast. vi. p. 1324. The Queen is one of the witnesses-" confirmavi" and "concessi" are attached to some of the signatures. Many other facts illustrative of this position might be adduced.

(g) William, as before mentioned, claimed to be Rex Anglorum hereditario jure, Hickes, Dissert, 72. 77, 78. "Dei dispositione et consanguinitatis hereditate," Cart. Will. I., A. D. 1068; Dug. Monast. vi. 1324, viz. by adoption or devise, Hume, i. 172; Hoveden, p. 609; Malmesbury, p. 100, 57. His predecessor, Canute, besides the ancient claim of his nation and family, (Dialogue concerning the Excheq. p. 276. ed. 1758,) seems to have set up an appointment from Edmund Ironside, as well as a right by treaty with that monarch, Lingard, i. 371. n. (1.); both had their titles confirmed by the form of an election. William followed the example of Canute in his renewal of the imposition of Danegelt, see Lingard, i. 368; and his Forest Laws, v. Matt. Paris, p. 9, 61; and supra, p. 26; other instances will be noticed.

89 Legislation-Code of William I.-Grants of Lands—Allotments.

William, following the example of his predecessors, caused a code to be prepared which professed to embody the laws of his "cusin" Edward, though by comparison it appears that the code of Canute was really its basis (a). Distinct regulations were necessarily made in regard to trial by battle, which was new to the English as a mode of deciding civil controversies, and which they might resort to or not at their choice (b). As regards the tenure of land, this code, if it ever was in force (c), was in great part superseded by the laws which the Conqueror subsequently issued as after mentioned.

It naturally was one of the first objects of William to grant to his warriors the promised rewards. For this purpose, besides taking possession of the royal domains, which were very extensive, he, with the semblance at least of law, seized upon the lands which had belonged to those who had, or were suspected of having, taken arms against him, by whatever title they were held (d); and the year after the decisive battle of Hastings (e), he distributed a large portion of these lands amongst the chiefs who had shared his fortunes (f); reserving *how[*90] ever very extensive domains for himself. The chiefs to whom these grants were made, together with those of the king's thanes, and probably the more influential Cnits or milites, who were suffered to retain their estates, composed the Proceres, now in the language of the palace called the Barons, that is, the Men of the royal court (g). Now, however, the allotments were made, not, as on the Saxon and Danish conquests, to be enjoyed in alodial right, but as benefices, or as they were now called, Feuds (h). These donations were to be held hereditarily,

(a) This code is to be found, Ancient Laws, i. p. 466. William appointed commissioners in the fourth year of his reign to collect the laws of Edward, and in the same year he confirmed the laws of Edward, Chron. Lichf. Wilk. p. 216; Hoveden, 601. 608. This appears to me to refer to the 13th section of the Cart. Will. Reg. Anc. Laws, i. 493; if so, it would fix the date of that document at a much earlier period than is usually given to it, (Cruise, Dig. i. p. 27); its address "omnibus hominibus suis Francis et Anglis," and the expression “ad utilitatem Anglorum," § 13. favors the carlier date. Hoveden's account of William having at first approved the laws of the Danes and having afterwards, at the request of his Barons, at a council acquiesced in the laws of Edward being observed, Hoved. p. 608, and the account given in the Dialogue on the Exchequer, c. xvi. p. 30. b, which also mentions the Norman additions then made, rather tend to the same conclusion. No date is assigned by the Record Commissioners to William's Charter.

(b) By a distinct charter or edict, Ancient L. i. 488-9; and see Wilkins, p. 218.

(c) As before observed, there is no reference to it in after-times, v. supra, p. 19.

(d)" Nulli Gallo datum, quod Anglo cuiquam injuste fuerit ablatum," says Orderic Vital. cited Wilkins, p. 213; but this is not quite reconcilable with the facts detailed by

the English cotemporary writers. “Cum ergo Rex Willelmus omnem sibi Angliam virtute bellicâ subjugasset, eundem Lexium, sicut et alios plerosque Anglos exhæ redavit, et jus nostrum simul cum suo ei auferens, alium quem voluit inde hæreditavit," Hist. Rames. xc. p. 446; and see Dugd. Monast. i. 478. et infra.

(e) Huntingdon. 369, 14; Thierry, Hist. Norm. ii. 320-2; Bromt. 933, 10.

(ƒ) As Canute had done: "De sorte regiæ distributionis, quidam alius Danicus præfa. tum prædium tunc temporis possidebat," Hist. Rames. c. lxxxvi. p. 443. temp. Cnut.

(g) Chron. Sax. ad. ann. 1086; Gibson, p. 190. There are many writs or precepts issued by William, addressed to his Barons, French and English, which it is to be presumed are to be referred to the early part of his reign, v. int. alia, Thorn, p. 2130. The words "testantur homines de hund. Franci et Angli," Domesday, Sudric, p. 32 (a) and elsewhere, show that many of the lesser thanes even at that time enjoyed their estates. The title of "Thane" was still applied in the provinces even to the Great Barons, Introd. to Domesday, p. xiv.; but it was exploded at the palace, and the title of Baron, i. e. "Man," substituted, as more plainly reminding the possessor of his dependence on William as his lord.

(h) The word" feodum" was now first introduced into England; but the expressions

Incidents to grants of Military Feuds.

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according to an enactment made at a great council, but by possessory title only, and on the condition of rendering military service to William as hlaford or lord (a).

A notion at this time prevailed universally throughout Europe, the progress of which in England has been adverted to in the preceding pages, that the mutual tie of lord and vassal ascending from the lowest order of landed owners to the sovereign, was essential to the preservation of the integrity of a state (b), and its political well-being or even existence. As regards the military service secured to William as lord, it was no doubt the same as had been rendered by every Norman vassal, and it scarcely differed from that which even the owner of alodial property had from all time been bound to render to the state (c): "it had one advantage, that it was more clearly defined. This ser[*91] vice was afterwards commuted for a money payment called escuage, the parent of the land tax of the present day (d). The other incidents, such as wardship, right of marriage and the like, at least as originally introduced, were only those which were incident to feudal tenure throughout Europe (e). Reliefs, which appear to have been a modification of the Anglo-Saxon Heriot, were also incident to the Norman feud (f). Aids for making the eldest son of the lord a knight, or for marrying his daughter, were not demandable of right but of grace merely (g). A more

in the writ to the king's justices, (Heming, p. 77, 78,) to inquire into the rights of the respective parties, "Sicut erant die quo novissimo tempore Regis Edwardi ut plene Episcopus Wistanus suam rectitudinem habeat;" and of the return, where it is stated, Quod Episcopus dirationavit, iiii. hy das, &c. de suo feudo esse ita quod Abbas sibi debet inde servire sicut alii sui feudati," ibid. p. 77; and the writ of execution to the sheriff, ib. p. 78, "Sicut melius habuit temp. Reg. Edwardi," would, of themselves, show that feuds were already known, but not by that specific name.

(a) Volumus eciam ac-concedimus ut omnes liberi homines tocius monarchie regni nostri habeant et teneant terras suas et possessiones-ita quod nihil ab eis capiaturnisi servitium suam liberum quod de jure nobis facere debent, et facere tenentur et prout statutum est eis, et illis a nobis datum el concessum, jure hereditario in perpetuum, per commune concilium regni nostri predicti, Carta Reg. Will. Conquest. Lib. Rub. Scacc., sect. "De clienteluri sou feudorum jure," Anc. L. i. p. 491. "Statuimus ut omnes Comites, et Barones, et milites et servientes, et universi liberi homines tocius regni nostri, teneant se semper bene in armis et equis-parati ad servitium suum integrum nobis explendum-secundum quod nobis debent de feodis et tenementis suis de jure facere et sicut illis statuimus per commune concilium tocius regni nostri predicti et illis dedimus et concessimus in feodo jure hereditario:"-"De clientum seu vassallorum præstationibus," ib. p. 491. The language VOL. I.-10

of this charter bears evident marks of its
clerical manufacture. The charter last re-
ferred to is that which I have before advert-
ed to, as having been issued by William in
the early part of his reign.-It is addressed,
"omnibus hominibus suis Francis et An-
glis." The expressions "et ut omnes qui
terras ejus (Wlfstani Episc.) tenent, pa-
rati sint semper in meo servitio et suo,'
," in
the writ of Will. I., Heming, p. 78, seem to
refer to this general obligation.

(b) See note (e) inf. p. 91.

(c) In France as well as in England, Capit. ed. Lindenb. lib. iii. § 74. The extent and nature of the service was regulated by custom in many parts of England; see Heywood, p. 187-8.

(d) Mad. Hist. Ex. i. 641. 652; according to Bracton, ii. c. 16. fo. 36 a. "Scutagium fuit in conquestu adinventum."

(e) See Assizes of Jerusalem, et v. supra, p. 40, n. (d). Since the preceding pages were written, I have met with a passage in the Confessionale of Egbert of York, A. D. circ. 766, (see Mr. Wright's Biographia Literaria, p. 303,) which contains an obscure reference to some rights claimed by lords in respect to the daughters of their vassals: "Puella usque ad xii. vel. xiii. annum, sit in potestate parentum suorum, post hanc ætatem dominus ejus (hire hlaford) illam capere potest cum voluntate sua."

(f) Glanville, ix. c. 1; v. sup. p. 39 and 43, and inf. n. (e).

(g) Glanville, ix. c. 8; Beames, p. 234. note; Bracton, 36 b., "et pro necessitate et

91 General conversion of Titles to Land into Beneficiary Tenure.

high-spirited body than the barons who accompanied Godfrey of Bouillon to the Conquest of the Holy Land, never perhaps was assembled, yet all were content to accept their portion of the conquered land as military feuds from Godfrey as their sovereign and lord, with the incidents of wardship, marriage, and the other usual feudal burdens, and their portions were granted out to their vavassors by subinfeudation subject to the same conditions (a). That the Norman Barons, therefore, should have been content to accept their portions as feuds, subject to these attendant burdens, is not matter of surprise.

The lands which the English thanes, who were vassals of the crown, were permitted to retain, whether they had originally been derived from royal grants, or the rights of the crown, had arisen simply from commendation, and whether the lands of the latter description had or had not retained their alodial character (b), were equally converted into *hereditary feuds (c). In the absence of direct evidence we [*92] may presume that the lands of those who held as vassals of monasteries or other persons, whether they had or had not retained the alodial right of commending themselves to whatever lord they pleased (d), became at the same time converted into permanent hereditary feuds. The estates of the bishops and abbots themselves, which, as before noticed, were then held by alodial title or in free alms, that is, to render prayers for the living or the dead, were converted into baronies to be held of the king on military service, the number of soldiers to be furnished by each to the king and his successors being fixed and inserted in the roll kept in the royal exchequer (e). The service

indigentia Domini capitalis." The original of this claim can hardly be mistaken, sup. p. 29.

(a) On the conquest of Jerusalem and the Holy Land, which was effected 15th July, 1099, about thirty years after the Norman Conquest, a code of laws for the government of the new empire was compiled. Persons of all classes, from all parts of Europe, joined in its construction. It professedly embodied in a systematic form the best of the laws and customs which had prevailed in their respective nations, Assizes of Jerus. e. i. The original was seized by the Saracens; the text that we now have, which was compiled soon afterwards, exhibits the feudal system in its complete and perhaps most perfect form. This Code would of itself afford convincing evidence of the general prevalence of feudalism as a system throughout continental Europe at the beginning of the eleventh century. Marriage of the female vassal, c. clxxx. ccxliii., and wardship, c. clxxvi., are two of the incidents which are embodied in this code, but Reliefs are not mentioned. The curious may see a summary of this code (and of the other ancient codes, from that of Moses to the Koran) in the Introduction to the Code Napoleon, by Barrett.

(b) Lands of this description are referred to in Domesday thus, " Aluod tenuit in Alod de rege," "Osgot tenuit de Alode de Rege,"

Domesday, Hampshire, p. 53 a., &c. v. supra, p. 47, 48. Probably the Tainland, mentioned in Domesday, Hereford, 181 a., was in part land of this description.

(c) Matthew Paris, ad Ann. 1067, after noticing the grants made by William to his Norman followers, adds, adverting to the extinction of alodial titles, "parum quod remanserat, sub jugo posuit perpetuæ servitutis;" and see Lord Lytt. Henry II. i. p. 355. So that from this time, the utila do minium was all that a subject could have. See Co. Litt. 1. b.

(d) There are, as has been already adverted to, numerous notices in Domesday of lands, particularly in Surrey, p. 31, 32, &c., the owners of which in the time of Edward might go to any lord they pleased; and see the Inquisitio Eliens. Suppl. to Domesday, p. 499. The monasteries, next after the king, were the principal patrons or lords of these independent Thanes. See the authorities above cited, and the precept of Will. I. Monasticon, i. p. 478," qui autem tenent Theinlands, quæ procul dubio sunt, et debent teneri de Ecclesia," &c.; and see Thierry, Hist. Norman. vol. i. p. 330, and supra.

A. D.

(e) Matt. Paris, p. 5, a. n. 1070. This perhaps may be considered as having completed the extinction throughout England, as regards subjects, of the Dominium directum in land.