Multimedia Mania/abacus-multimedia-mania.iso/dp/0090/00904.txt

Text File | 1993-07-27 | 18KB | 295 lines

$Unique_ID{bob00904}
$Pretitle{}
$Title{History Of Europe During The Middle Ages
Part IV}
$Subtitle{}
$Author{Hallam, Henry}
$Affiliation{}
$Subject{feudal
footnote
laws
lord
et
conquest
word
lands
might
right}
$Date{}
$Log{}
Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part IV

     It is material, however, to observe that a thane forfeited his hereditary
freehold by misconduct in battle: a penalty more severe than was inflicted
upon allodial proprietors on the continent.  We even find in the earliest
Saxon laws that the sithcundman, who seems to have corresponded to the
inferior thane of later times, forfeited his land by neglect of attendance in
war; for which an allodialist in France would only have paid his heribannum,
or penalty. ^a Nevertheless, as the policy of different states may enforce the
duties of subjects by more or less severe sanctions, I do not know that a law
of forfeiture in such cases is to be considered as positively implying a
feudal tenure.

[Footnote a: Leges Inae, p. 23; Du Cange, voc. Heribannum.  By the laws of
Canute, p. 135, a fine only was imposed for this offence.]

     But a much stronger presumption is afforded by passages that indicate a
mutual relation of lord and vassal among the free proprietors.  The most
powerful subjects have not a natural right to the service of other freemen.
But in the laws enacted during the Heptarchy we find that the sithcundman, or
petty gentleman, might be dependent on a superior lord. ^b This is more
distinctly expressed in some ecclesiastical canons, apparently of the tenth
century, which distinguish the king's thane from the landholder, who depended
upon a lord. ^c Other proofs of this might be brought from the Anglo-Saxon
laws. ^d It is not, however, sufficient to prove a mutual relation between the
higher and lower orders of gentry, in order to establish the existence of
feudal tenures.  For this relation was often personal, as I have mentioned
more fully in another place, and bore the name of commendation.  And no nation
was so rigorous as the English in compelling every man, from the king's thane
to the ceorl, to place himself under a lawful superior.  Hence the question is
not to be hastily decided on the credit of a few passages that express this
gradation of dependence; feudal vassalage, the object of our inquiry, being of
a real, not a personal nature, and resulting entirely from the tenure of
particular lands.  But it is not unlikely that the personal relation of
client, if I may use that word, might in a multitude of cases be changed into
that of vassal.  And certainly many of the motives which operated in France to
produce a very general commutation of allodial into feudal tenure might have a
similar influence in England, where the disorderly condition of society made
it the interest of every man to obtain the protection of some potent lord.

[Footnote b: Leges, Inae, pp. 10, 23.]

[Footnote c: Wilkins, p. 101.]

[Footnote d: Pp. 71, 144, 145.]

     The word thane corresponds in its derivation to vassal; and the latter
term is used by Asserius, the contemporary biographer of Alfred, in speaking
of the nobles of that prince. ^e In their attendance, too, upon the royal
court, and the fidelity which was expected from them, the king's thanes seem
exactly to have resembled that class of followers who, under different
appellations, were the guards as well as courtiers of the Frank and Lombard
sovereigns.  But I have remarked that the word thane is not applied to the
whole body of gentry in the more ancient laws, where the word eorl is opposed
to the ceorl or roturier, and that of sithcundman ^f to the royal thane.  It
would be too much to infer, from the extension of this latter word to a large
class of persons, that we should interpret it with a close attention to
etymology, a very uncertain guide in almost all investigations.

[Footnote e: Alfredus cum paucis suis nobilibus et etiam cum quibusdam
militibus et Vassallis. p. 166.  Nobiles Vassali Sumertunensis pagi, p. 167.
Yet Hickes objects to the authenticity of a charter ascribed to Edgar, because
it contains the word Vassallus, "quam a Nortmannis Angli habuerunt."
Dissertatio Epistol., p. 7.

     The word vassallus occurs not only in the suspicious charter of Cenulf,
quoted in a subsequent note, but in one A.D. 952 (Codex Diplomat., ii. 303),
to which I was led by Mr. Spence (Equitable Jurisdiction, p. 44), who quotes
another from p. 323, which is probably a misprint; but I have found one of
Edgar, A.D. 967.  Cod. Diplomat., iii. II.  I think that Mr. Spence, in the
ninth and tenth chapters of his learned work, has too much blended the
Anglo-Saxon man of a lord with the continental vassal; which is a petitio
principii.  Certainly the word was of rare use in England; and the
authenticity of Asserius, whom I have quoted as a contemporary biographer of
Alfred, which is the common opinion, has been called in question by Mr.
Wright, who refers that Life to the age of the Conquest.  Archaeologia, vol.
xxix.]

[Footnote f: Wilkins, pp. 3, 7, 23, &c.]

     For the age immediately preceding the Norman invasion we cannot have
recourse to a better authority than Domesday Book.  That incomparable record
contains the names of every tenant, and the conditions of his tenure, under
the Confessor, as well as at the time of its compilation, and seems to give
little countenance to the notion that a radical change in the system of our
laws had been effected during the interval.  In almost every page we meet with
tenants either of the crown or of other lords, denominated thanes, freeholders
(liberi homines), or socagers (socmanni).  Some of these, it is stated, might
sell their lands to whom they pleased; others were restricted from alienation.
Some, as it is expressed, might go with their lands whither they would; by
which I understand the right of commending themselves to any patron of their
choice.  These of course could not be feudal tenants in any proper notion of
that term.  Others could not depart from the lord whom they served; not,
certainly, that they were personally bound to the soil, but that, so long as
they retained it, the seigniory of the superior could not be defeated. ^g But
I am not aware that military service is specified in any instance to be due
from one of these tenants; though it is difficult to speak as to a negative
proposition of this kind with any confidence.

[Footnote g: It sometimes weakens a proposition, which is capable of
innumerable proofs, to take a very few at random; yet the following casual
specimens will illustrate the common language of Domesday Book:

     Haec tria maneria tenuit Ulveva tempore regis Edwardi et potuit ire cum
terra quo volebat.  P. 85.

     Toti emit eam T. R. E. (temp. regis Edwardi) de ecclesia Malmsburiensi ad
aetatem trium hominum; et infra hunc terminum poterat ire cum ea ad quem
vellet dominum.  P. 72.

     Tres Angli tenuerunt Darneford T. R. E. et non poterant ab ecclesia
separari.  Duo ex iis reddebant v. solidos, et tertius serviebat sicut
Thainus.  P. 68.

     Has terras qui tenuerunt T. R. E. quo voluerunt ire poterunt, praeter
unum Seric vocatum, qui in Ragendal tenuit iii carucatas terrae; sed non
poterat cum ea alicubi recedere.  P. 235.]

     No direct evidence appears as to the ceremony of homage or the oath of
fealty before the Conquest.  The feudal exaction of aid in certain prescribed
cases seems to have been unknown.  Still less could those of wardship and
marriage prevail, which were no general parts of the great feudal system.  The
English lawyers, through an imperfect acquaintance with the history of feuds
upon the continent, have treated these unjust innovations as if they had
formed essential parts of the system, and sprung naturally from the relation
between lord and vassal.  And, with reference to the present question, Sir
Henry Spelman has certainly laid too much stress upon them in concluding that
feudal tenures did not exist among the Anglo-Saxons, because their lands were
not in ward, nor their persons sold in marriage.  But I cannot equally concur
with this eminent person in denying the existence of reliefs during the same
period.  If the heriot, which is first mentioned in the time of Edgar ^h
(though it may probably have been an established custom long before), were not
identical with the relief, it bore at least a very strong analogy to it.  A
charter of Ethelred's interprets one word by the other. ^i In the laws of
William, which re-enact those of Canute concerning heriots, the term relief is
employed as synonymous. ^j Though the heriot was in later times paid in
chattels, the relief in money, it is equally true that originally the law
fixed a sum of money in certain cases for the heriot, and a chattel for the
relief.  And the most plausible distinction alleged by Spelman, that the
heriot is by law due from the personal estate, but the relief from the heir,
seems hardly applicable to that remote age, when the law of succession as to
real and personal estate was not different.

[Footnote h: Selden's Works, vol. ii. p. 1620.]

[Footnote i: Hist. Ramseiens, p. 430.]

[Footnote j: Leges Canuti, p. 144; Leges Gulielmi, p. 223.]

     It has been shown in another place how the right of territorial
jurisdiction was generally, and at last inseparably, connected with feudal
tenure.  Of this right we meet frequent instances in the laws and records of
the Anglo-Saxons, though not in those of an early date.  A charter of Edred
grants to the monastery of Croyland, soc, sac, toll team, and infangthef:
words which generally went together in the description of these privileges,
and signify the right of holding a court to which all freemen of the territory
should repair, of deciding pleas therein, as well as of imposing amercements
according to law, of taking tolls upon the sale of goods, and of punishing
capitally a thief taken in the fact within the limits of the manor. ^k Another
charter from the Confessor grants to the abbey of Ramsey similar rights over
all who were suitors to the sheriff's court, subject to military service, and
capable of landed possessions; that is, as I conceive, all who were not in
servitude. ^l By a law of Ethelred, none but the king could have jurisdiction
over a royal thane. ^m And Domesday Book is full of decisive proofs that the
English lords had their courts wherein they rendered justice to their suitors,
like the continental nobility: privileges which are noticed with great
precision in that record, as part of the statistical survey.  For the right of
jurisdiction at a time when punishments were almost wholly pecuniary was a
matter of property, and sought from motives of rapacity as well as pride.

[Footnote k: Ingulfus, p. 35.  I do not pretend to assert the authenticity of
these charters, which at all events are nearly as old as the Conquest. Hicks
calls most of them in question.  Dissert.  Epist., p. 66.  But some later
antiquaries seem to have been more favorable.  Archaeologia, vol. xviii. p.
49; Nouveau Traite de Diplomatique, t. i. p. 348.]

[Footnote l: Hist. Ramsey, p. 454.]

[Footnote m: P. 118.  This is the earliest allusion, if I am not mistaken, to
territorial jurisdiction in the Saxon laws.  Probably it was not frequent till
near the end of the tenth century.

     Mr. Kemble is of opinion that the words granting territorial jurisdiction
do not occur in any genuine charter before the Confessor. Codex Diplom., i.
43.  They are of constant occurrence in those of the first Norman reigns.  But
the Normans did not understand them, and the words are often misspelled.  He
thinks, therefore, that the rights were older than the Conquest, and accounts
for the rare mention of them by the somewhat unsatisfactory supposition that
they were so inherent in the possession of land as not to require particular
notice.  See Spence, Fquit. Juris. pp. 64, 68.]

     Whether therefore the law of feudal tenures can be said to have existed
in England before the Conquest must be left to every reader's determination.
Perhaps any attempt to decide it positively would end in a verbal dispute.  In
tracing the history of every political institution, three things are to be
considered, the principle, the form, and the name. The last will probably not
be found in any genuine Anglo-Saxon record. ^n Of the form or the peculiar
ceremonies and incidents of a regular fief, there is some, though not much,
appearance.  But those who reflect upon the dependence in which free and even
noble tenants held their estates of other subjects, ^o and upon the privileges
of territorial jurisdiction, will, I think, perceive much of the intrinsic
character of the feudal relation, though in a less mature and systematic shape
than it assumed after the Norman conquest.

[Footnote n: Feodum twice occurs in the testament of Alfred; but it does not
appear to be used in its proper sense, nor do I apprehend that instrument to
have been originally written in Latin.  It was much more consonant to Alfred's
practice to employ his own language.]

[Footnote o: It will probably be never disputed again that lands were granted
by a military tenure before the Conquest.  Thus, besides the proofs in the
text, in the laws of Canute (c. 78): - "And the man who shall flee from his
lord or from his comrade by reason of his cowardice, be it in the shipfyrd, be
it in the landfyrd, let him forfeit all he owns, and his own life; and let the
lord seize his possessions, and his land which he previously gave him; and if
he have bocland, let that go into the king's hands." Ancient Laws, p. 180.
And we read of lands called hlafordsgifu, lord's gift.  Leges Ethelred I.,
Ancient Laws, p. 125.  But these were not always feudal, or even hereditary;
they were what was called on the continent praestariae, granted for life or
for a certain term; and this, as it appears to me, may have been the proper
meaning of the term laen-lands.

     But the general tenure of lands was still allodial.  Taini lex est, says
a curious document on the rights, that is obligations, of different ranks,
published by Mr. Thorpe, - ut sit dignus rectitudine testamenti sui (his
boc-rightes wyrthe, that is, perhaps bound to the duties implied by the deed
which creates his estates), - et ut ita faciat pro terra sua, scilicet
expeditionem burhbotam et brigbotam.  Et de multis terris majus landirectum
exsurgit ad bannum regis, &c. p. 185.  Here we find the well-known trinoda
necessitas of allodial land, with other contingent liabilities imposed by
grant or usage. ^*

     [Footnote *: Mr. Kemble has printed a charter of Cenulf King of Mercia to
the abbey of Abingdon, in 820, without the asterisk of spuriousness (Codex
Diplom., i. 269); and it is quoted by Sir F. Palgrave (vol. i. p. 159) in
proof of military tenures.  The expression, however, expeditionem cum duodecim
vassallis, et totidem scutis exerceant, seems not a little against its
authenticity.  The former has observed that the testamentary documents before
the Conquest, made by men who were under a superior lord, contain a clause of
great interest; namely, an earnest prayer to the lord that he will permit the
will to stand according to the disposition of the testator, coupled not
unfrequently with a legacy to him on condition of his so doing, or to some
person of influence about him for intercession on the testator's behalf.  And
hence he infers that, "as no man supplicates for that which he is of his own
right entitled to enjoy, it appears as if these great vassals of the crown had
not the power of disposing of their lands and chattels but as the king might
permit; and, in the strict construction of the bond between the king and them,
all that they gained in his service must be taken to fall into his hands after
their death." Introduction to Cod. Dip., p. III.  This inference seems hardly
borne out by the premises; a man might sometimes be reduced to supplicate a
superior for that which he had a right to enjoy.]

     We may probably not err very much in supposing that the state of tenures
in England under Canute or the Confessor was a good deal like those in France
under Charlemagne or Charles the Bald, an allodial trunk with numerous
branches of feudal benefice grafted into it.  But the conversion of the one
mode of tenure into the other, so frequent in France, does not appear by
evidence to have prevailed on this side of the channel.

     I will only add here that Mr. Spence, an authority of great weight,
maintains a more complete establishment of the feudal polity before the
Conquest than I have done. This is a subject on which it is hard to lay down a
definite line.  But I must protest against my learned friend's derivation of
the feudal system from "the aristocratic principle that prevailed in the Roman
dominions while the republic endured, and which was incorporated with the
principles of despotism introduced during the empire." It is because the
aristocratic principle could not be incorporated with that of despotism, that
I conceive the feudal system to have been incapable of development, whatever
inchoate rudiments of it may be traced, until a powerful territorial
aristocracy had rendered despotism no longer possible.  [1847.]]