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$Title{History Of Europe During The Middle Ages
Part V}
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$Author{Hallam, Henry}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part V

     The Anglo-Norman Constitution - Causes of the Conquest - Policy and
Character of William - His Tyranny - Introduction of Feudal Services -
Difference between the Feudal Governments of France and England - Causes of
the Great Power of the First Norman Kings - Arbitrary Character of their
Government - Great Council - Resistance of the Barons to John - Magna Charta -
Its Principal Articles - Reign of Henry III. - The Constitution Acquires a
More Liberal Character - Judicial System of the Anglo-Normans - Curia Regis,
Exchequer, &c. - Establishment of the Common Law - Its Effect in Fixing the
Constitution - Remarks on the Limitation of Aristrocatical Privileges in
England.

     It is deemed by William of Malmesbury an extraordinary work of Providence
that the English should have given up all for lost after the battle of
Hastings, where only a small though brave army had perished. ^a It was indeed
the conquest of a great kingdom by the prince of a single province, an event
not easily paralleled, where the vanquished were little, if at all less
courageous than their enemies, and where no domestic factions exposed the
country to an invader.  Yet William was so advantageously situated, that his
success seems neither unaccountable nor any matter of discredit to the English
nation.  The heir of the house of Cerdic had been already set aside at the
election of Harold; and his youth, joined to a mediocrity of understanding
which excited neither esteem nor fear, ^b gave no encouragement to the scheme
of placing him upon the throne in those moments of imminent peril which
followed the battle of Hastings.  England was peculiarly destitute of great
men.  The weak reigns of Ethelred and Edward had rendered the government a
mere oligarchy, and reduced the nobility into the state of retainers to a few
leading houses, the representatives of which were every way unequal to meet
such an enemy as the Duke of Normandy.  If indeed the concurrent testimony of
historians does not exaggerate his forces, it may be doubted whether England
possessed military resources sufficient to have resisted so numerous and
well-appointed an army. ^c

[Footnote a: Malmesbury, p. 53.  And Henry of Huntingdon says emphatically,
Millesimo et sexagesimo sexto anno gratiae perfecit dominator Deus de gente
Anglorum quod diu cogitaverat.  Genti namque Normannorum asperae et callidae
tradidit eos ad exterminandum.  P. 210.]

[Footnote b: Edgar, after one or two ineffectual attempts to recover the
kingdom, was treated by William with a kindness which could only have
proceeded from contempt of his understanding; for he was not wanting in
courage.  He became the intimate friend of Robert Duke of Normandy, whose
fortunes, as well as character, much resembled his own.]

[Footnote c: It has been suggested, in the second Report of a Committee of the
Lords' House on the Dignity of a Peer, to which I shall have much recourse in
the following pages, that "the facility with which the Conquest had been
achieved seems to have been, in part, the consequence of defects in the Saxon
institutions, and of the want of a military force similar to that which had
then been established in Normandy, and in some other parts of the continent of
Europe.  The adventurers in the army of William were of those countries in
which such a military establishment had prevailed." P. 24.  It cannot be said,
I think, that there were any manifest defects in the Saxon institutions, so
far as related to the defence of the country against invasion.  It was part of
the trinoda necessitas, to which all allodial landholders were bound.  Nor is
it quite accurate to speak of a military force then established in Normandy,
or anywhere else.  We apply these words to a permanent body always under arms.
This was no attribute of feudal tenure, however the frequency of war, general
or private, may have inured the tenants by military service to a more habitual
discipline than the thanes of England ever knew.  The adventurers in William's
army were from various countries, and most of them, doubtless, had served
before, but whether as hired mercenaries or no we have probably not sufficient
means of determining.  The practice of hiring troops does not attract the
notice of historians, I believe, in so early an age.  We need not, however,
resort to this conjecture, since history sufficiently explains the success of
William.

     [Footnote *: This Report I generally quote from that printed in 1819; but
in 1829 it was reprinted with corrections.  It has been said that these were
occasioned by the strictures of Mr. Allen, in the 35th volume of the Edinburgh
Review, not more remarkable for their learning and acuteness than their,
severity on the Report.  The corrections, I apprehend, are chiefly confined to
errors of names, dates, and others of a similar kind, which no doubt had been
copiously pointed out.  But it has not appeared to me that the Lords'
Committee have altered, in any considerable degree, the positions upon which
the reviewer animadverts. It was hardly, indeed, to be expected that the
supposed compiler of the Report, the late Lord Redesdale, having taken up his
own line of opinion, would abandon it on the suggestions of one whose
comments, though extremely able, and often, in the eyes of many, well founded,
are certainly not couched in the most conciliatory or respectful language.]]

     This forlorn state of the country induced, if it did not justify, the
measure of tendering the crown to William, which he had a pretext or title to
claim, arising from the intentions, perhaps the promise, perhaps even the
testament of Edward, which had more weight in those times than it deserved,
and was at least better than the naked title of conquest.  And this, supported
by an oath exactly similar to that taken by the Anglo-Saxon kings, and by the
assent of the multitude, English as well as Normans, on the day of his
coronation, gave as much appearance of a regular succession as the
circumstances of the times would permit. Those who yielded to such
circumstances could not foresee, and were unwilling to anticipate, the
bitterness of that servitude which William and his Norman followers were to
bring upon their country.

     The commencement of his administration was tolerably equitable. Though
many confiscations took place, in order to gratify the Norman army, yet the
mass of property was left in the hands of its former possessors. Offices of
high trust were bestowed upon Englishmen, even upon those whose family renown
might have raised the most aspiring thoughts. ^d But partly through the
insolence and injustice of William's Norman vassals, partly through the
suspiciousness natural to a man conscious of having overturned the national
government, his yoke soon became more heavy.  The English were oppressed; they
rebelled, were subdued, and oppressed again.  All their risings were without
concert, and desperate; they wanted men fit to head them, and fortresses to
sustain their revolt. ^e After a very few years they sank in despair, and
yielded for a century to the indignities of a comparatively small body of
strangers without a single tumult.  So possible is it for a nation to be kept
in permanent servitude, even without losing its reputation for individual
courage, or its desire of freedom. ^f

[Footnote d: Ordericus Vitalis, p. 520 (in Du Chesne, Hist. Norm. Script.).]

[Footnote e: Ordericus notices the want of castles in England as one reason
why rebellions were easily quelled.  P. 511.  Failing in their attempts at a
generous resistance, the English endeavored to get rid of their enemies by
assassination, to which many Normans became victims. William therefore enacted
that in every case of murder, which strictly meant the killing of anyone by an
unknown hand, the hundred should be liable in a fine, unless they could prove
the person murdered to be an Englishman.  This was tried by an inquest, upon
what was called a presentment of Englishry.  But from the reign of Henry II.,
the two nations having been very much intermingled, this inquiry, as we learn
from the Dialogue de Scaccario, p. 26, ceased; and in every case of a freeman
murdered by persons unknown the hundred was fined.  See however Bracton, l.
iii. c. 15.]

[Footnote f: The brave resistance of Hereward in the fens of Lincoln and
Cambridge is well told by M. Thierry, from ingulfus Ingulfus and Gaimar.
Conquete d'Anglet. par les Normands, vol. ii. p. 168.  Turner had given it in
some detail from the former.  Hereward ultimately made his peace with William,
and recovered his estate.  According to Ingulfus, he died peaceably, and was
buried at Croyland; according to Gaimar, he was assassinated in his house by
some Normans.  The latter account is confirmed by an early chronicler, from
whom an extract is given by Mr. Wright.  A more detailed memoir of Hereward
(De Gestis Herewardi Saxonis) is found in the chartulary of Swaffham Abbey,
now preserved in Peterborough Cathedral, and said to be as old as the twelfth
century.  Mr. Wright published it in 1838, from a copy in the library of
Trinity College, Cambridge.  If the author is to be believed, he had conversed
with some companions of Hereward.  But such testimony is often feigned by the
mediaeval semi-romancers.  Though the writer appears to affect a different
origin, he is too full of Anglo-Saxon sympathies to be disguised; and in fact,
he has evidently borrowed greatly from exaggerated legends, perhaps metrical,
current among the English, as to the early life of Hereward, to which
Ingulfus, or whoever personated him, cursorily alludes.]

     The tyranny of William displayed less of passion or insolence than of
that indifference about human suffering which distinguishes a cold and
far-sighted statesman.  Impressed by the frequent risings of the English at
the commencement of his reign, and by the recollection, as one historian
observes, that the mild government of Canute had only ended in the expulsion
of the Danish line, ^g he formed the scheme of riveting such fetters upon the
conquered nation, that all resistance should become impracticable.  Those who
had obtained honorable offices were successively deprived of them; even the
bishops and abbots of English birth were deposed; ^h a stretch of power very
singular in that age.  Morcar, one of the most illustrious English, suffered
perpetual imprisonment.  Waltheoff, a man of equally conspicuous birth, lost
his head upon a scaffold by a very harsh if not iniquitous sentence.  It was
so rare in those times to inflict judicially any capital punishment upon
persons of such rank, that his death seems to have produced more indignation
and despair in England than any single circumstance.  The name of Englishman
was turned into a reproach.  None of that race for a hundred years were raised
to any dignity in the state or church. ^i Their language and the characters in
which it was written were rejected as barbarous; in all schools, if we trust
an authority often quoted, children were taught French, and the laws were
administered in no other tongue. ^j It is well known that this use of French
in all legal proceedings lasted till the reign of Edward III. Several English
nobles, desperate of the fortunes of their country, sought refuge in the court
of Constantinople, and approved their valor in the wars of Alexius against
another Norman conqueror, scarcely less celebrated than their own Robert
Guiscard.  Under the name of Varangians, those true and faithful supporters of
the Byzantine empire preserved to its dissolution their ancient Saxon idiom.
^k

[Footnote g: Malmesbury, p. 104.]

[Footnote h: Hoveden, p. 453.  This was done with the concurrence and sanction
of the pope, Alexander II., so that the stretch of power was by Rome rather
than by William.  It must pass for a gross violation of ecclesiastical as well
as of national rights, and Lanfranc cannot be reckoned, notwithstanding his
distinguished name, as any better than an intrusive bishop.  He showed his
arrogant scorn of the English nation in another and rather a singular manner.
They were excessively proud of their national saints, some of whom were little
known, and whose barbarous names disgusted Italian ears.  Angli inter quos
vivimus, said the foreign priests, quosdam sibi instituerunt sanctos, quorum
incerta sunt merita. This might be true enough; but the same measure should
have been meted to others.  Thierry, vol. ii. p. 158, edit. 1830.  The Norman
bishops, and the primate especially, set themselves to disparage, and in fact
to dispossess, St. Aldhelm, St. Elfig, and, for aught we know, St. Swithin,
St. Werburg, St. Ebb, and St. Alphage: names, it must be owned,

     "That would have made Quintilian stare and gasp."

     "We may judge what the eminent native of Pavia thought of such a
hagiology.  The English church found herself, as it were, with an attainted
peerage.  But the calendar withstood these innovations.

     Mr. Turner, in his usual spirit of panegyric, says, - "He (William) made
important changes among the English clergy; he caused Stigand and others to be
disposed, and he filled their places with men from Normandy and France, who
were distinguished by the characters of piety, decorous morals, and a love of
literature.  This measure was an important addition to the civilization of the
island," &c.  Hist. of England, vol. i. p. 104. Admitting this to be partly
true, though he would have found by no means so favorable an account of the
Norman prelates in Ordericus Vitalis, if he had read a few pages beyond the
passages to which he refers, is it consonant to historical justice that a
violent act, like the deposition of almost all the Anglo-Saxon hierarchy,
should be spoken of in a tone of praise, which the whole tenor of the
paragraph conveys?]

[Footnote i: Becket is said to have been the first Englishman who reached any
considerable dignity.  Lord Lyttelton's Hist. of Henry II. vol. ii. p. 22.
And Eadmer declares that Henry I. would not place a single Englishman at the
head of a monastery.  Si Anglus erat, nulla virtus, ut honore aliquo dignus
judicaretur, eum poterat adjuvare, p. 110.]

[Footnote j: Ingulfus, p. 61.  Tantum tune Anglicos abominati sunt. ut
quantocunque merito pollerent, de dignitatibus repellebantur; et multo minus
habiles alienigenae de quacunque alia natione. quae sub coelo est,
extitissent, gratanter assumerentur.  Ipsum etiam idioma tantum abhorrebant,
quod leges terrae, statutaque Anglicorum regum lingua Gallica tractarentur; et
pueris etiam in scholis principia literarum grammatica Gallice, ac non Anglice
traderentur; modus etiam scribendi Anglicus omitteretur, et modus Gallicus in
chartis et in libris omnibus admitteretur.

     But the passage in Ingulfus, quoted in support of this position, has been
placed by Sir F. Palgrave among the proofs that we have a forgery of the
fourteenth century in that historian, the facts being in absolute
contradiction to him.  "Before the reign of Henry III. we cannot discover a
deed or law drawn or composed in French.  Instead of prohibiting the English
language, it was employed by the Conqueror and his successors in their
charters until the reign of Henry II., when it was superseded, not by the
French, but by the Latin language, which had been gradually gaining or rather
regaining ground." Edinb. Rev., XXXIV. 262.  "The Latin language had given way
in a great measure, from the time of Canute, to the vernacular Anglo-Saxon.
Several charters in the latter language occur before; but for fifty years
ending with the Conquest, out of 254 (published in the fourth volume of the
Codex Diplomaticus), 137 are in Anglo-Saxon, and only 117 in Latin." Kemble's
Preface, p. 6.

     If I have rightly translated, in the text of Ingulfus, leges tractarentur
by administered, the falsehood is manifest; since the laws were administered
in the county and hundred courts, and certainly not there in French.  I really
do not perceive how this passage could have been written by Ingulfus, who must
have known the truth; at all events, his testimony must be worth little on any
subject, if he could so palpably misrepresent a matter of public notoriety.
The supposition of entire forgery is one which we should not admit without
full proof; but, in this instance, there are, perhaps, fewer difficulties on
this side than on that of authenticity.]

[Footnote k: Gibbon, vol. x. p. 223.  No writer except, perhaps, the Saxon
Chronicler, is so full of William's tyranny as Ordericus Vitalis.  See
particularly pp. 507, 512, 514, 521, 523, in Du Chesne, Hist. Norm. Script.
Ordericus was an Englishman, but passed at ten years old, A. D. 1084, into
Normandy, where he became professed in the monastery of Eu. Ibid. p. 924.]

     An extensive spoliation of property accompanied these revolutions. It
appears by the great national survey of Domesday Book, completed near the
close of the Conqueror's reign, ^l that the tenants in capite of the crown
were generally foreigners.  Undoubtedly there were a few left in almost every
county who still enjoyed the estates which they held under Edward the
Confessor, free from any superiority but that of the crown, and were
denominated, as in former times, the king's thanes. ^m Cospatric, son perhaps
of one of that name who had possessed the earldom of Northumberland, held
forty-one manors in Yorkshire, though many of them are stated in Domesday to
be waste.  But inferior freeholders were much less disturbed in their estates
than the higher class.  Brady maintains that the English had suffered
universally a deprivation of their lands. But the valuable labors of Sir Henry
Ellis, in presenting us with a complete analysis of Domesday Book, afford an
opportunity, by his list of mesne tenants at the time of the survey, to form
some approximation to the relative numbers of English and foreigners holding
manors under the immediate vassals of the crown.  The baptismal names (there
are rarely any others) are not always conclusive; but, on the whole, we learn
by a little practice to distinguish the Norman from the Anglo-Saxon.  It would
be manifest, by running the eye over some pages of this list, how considerably
mistaken is the supposition that few of English birth held entire manors.
Though I will not now affirm or deny that they were a majority, they form a
large proportion of nearly 8,000 mesne tenants, ^n who are summed up by the
diligence of Sir Henry Ellis.  And we may presume that they were in a very
much greater proportion among the "liberi homines," who held lands, subject
only to free services, seldom or never very burdensome.  It may be added that
many Normans, as we learn from history, married English heiresses, rendered so
frequently, no doubt, by the violent deaths of their fathers and brothers, but
still transmitting ancient rights, as well as native blood, to their
posterity.

[Footnote l: The regularity of the course adopted when this record was
compiled is very remarkable; and affords a satisfactory proof that the
business of the government was well conducted, and with much less rudeness
than is usually supposed.  The commissioners were furnished with
interrogatories, upon which they examined the jurors of the shire and hundred,
and also such other witnesses as they thought expedient.

     Hic subscribitur inquisicio terrarum quomodo Barones Reges inquirunt,
videlicet, per sacramentum vicecomitis Scirae et omnium Baronum et eorum
Francigenarum et tocius centuriatus - presbiteri praepositi VI. - Deinde
quomodo vocatur mansio, ques tenuit eam tempore Regis Edwardi, quis modo
tenet, quot hidae, quot carrucatae in domino quot homines, quot villani, quot
cotarii, quot servi, quot liberi homines, quot sochemanni, quantum silvae,
quantum prati, quot pascuorum, quot molidenae, quot piscinae, quantum valebat
totum simul; et quantum modo; quantum ibi quisque liber homo vel sochemnaus
habuit vel habet.  Hoc totum tripliciter, scilicet tempore Regis Aedwardi; et
quando Rex Williclmus debit; et quomodo sit modo, et si plus potest haberi
quam habeatur.  Isti homines juraverunt (then follow the names). Inquisitio
Eliensis, p. 497.  Palgrave, ii. 444.]

[Footnote m: Brady, whose unfairness always keeps pace with his ability,
pretends that all these were menial officers of the king's household.  But
notwithstanding the difficulty of disproving these gratuitous suppositions, it
is pretty certain that many of the English proprietors in Domesday could not
have been of this description. See pp. 99, 153, 218, 219, and other places.
The question, however, was not worth a battle, though it makes a figure in the
controversy of Normans and Anti-Normans, between Dugdale and Brady on the one
side, and Tyrrell, Petyt, and Attwood on the other.]

[Footnote n: Ellis' Introduction to Domesday, vol. ii. p. 8II.  "The tenants
in capite, including ecclesiastical corporations, amounted scarcely to 1400;
the undertenants were 7871."]

     This might induce us to suspect that, great as the spoliation must appear
in modern times, and almost completely as the nation was excluded from civil
power in the commonwealth, there is some exaggeration in the language of those
writers who represent them as universally reduced to a state of penury and
servitude.  And this suspicion may be in some degree just.  Yet these writers,
and especially the most English in feeling of them all, M.  Thierry, are
warranted by the language of contemporary authorities.  An important passage
in the Dialogus de Scaccario, written towards the end of Henry III.'s reign,
tends greatly to diminish the favorable impression which the Saxon names of so
many mesne tenants in Domesday Book would create.  If we may trust Gervase of
Tilbury, author of this little treatise, the estates of those who had borne
arms against William were alone confiscated; though the others were subjected
to the feudal superiority of a Norman lord.  But when these lords abused their
power to dispossess the native tenants, a clamor was raised by the English,
and complaint made to the king; by whom it was ordered (if we rightly
understand a passage not devoid of obscurity) that the tenant might make a
bargain with his lord, so as to secure himself in possession; but that none of
the English should have any right of succession, a fresh agreement with the
lord being required on every change of tenancy.  The Latin words will be found
below. ^o This, as here expressed, suggests something like an uncertain relief
at the lord's will, and paints the condition of the English tenant as
wretchedly dependent.  But an instrument published by Spelman, and which will
be found in Wilkins, Lex. Ang. Sax. p. 287, gives a more favorable view, and
asserts that William permitted those who had taken no part against him to
retain their lands; though it appears by the very same record that the Normans
did not much regard the royal precept.

[Footnote o: Post regni conquisitionem, post justam rebellium subversionem,
cum rex ipse regisque proceres loca nova perlustrarent, facta est inquisitio
dilegens, qui fuerunt qui contra regem in bello dimicantes per fugam se
salvaverant.  His omnibus et item haeredibus eorum qui in bello occubuerant,
spes omnis terrarum et fundorum atque redituum quos ante possederant,
praeclusa est; magnum namque reputabant frui vitae beneficio sub inimicis.
Verum qui vocati ad bellum necdum convenerant, vel familiaribus vel
quibuslibet necessariis occupati negotiis non interfuerant, cum tractu
temporis devotis obsequiis gratiam dominorum possedissent sine spe
successionis, filii tantum pro voluptate [sic. voluntate?] tamen dominorum
possidere coeperunt succedente vero tempore cum dominis suis odiosi passim a
possessionibus pellerentur, nec esset qui ablatis restituerit, communis
indigenarum ad regem pervenit querimonia, quasi sic omnibus exosi et rebus
spoliatis ad alienigenas transire cogerentur.  Communicato tantum super his
consilio, decretum est, ut quod a dominis suis exigentibus meritis
interveniente pactione legitima poterant obtinere, illis inviolabilis jur
concederentur; caeterum autem nomine successionis a temporibus subactae gentis
nihil sibi vindicarent. . . Sic igitur quisquis de gente subacta fundos vel
aliquid hujusmodi possidet, non quod ratione successionis deberi sibi
videbatur, adeptus est; sed quod solummodo meritis suis exigentibus, vel
aliqua pactione interveniente obtinuit.  Dial. de Scaccario, c. 10.]

     But whatever may have been the legal condition of the English mesne
tenant, by knight-service or socage (for the case of villeins is of course not
here considered), during the first two Norman reigns, it seems evident that he
was protected by the charter of Henry I. in the hereditary possession of his
lands, subject only to a "lawful and just relief towards his lord." For this
charter is addressed to all the liege men of the crown, "French and English;"
and purports to abolish all the evil customs by which the kingdom had been
oppressed, extending to the tenants of the barons as well as those of the
crown.  We cannot reasonably construe the language in the Dialogue of the
Exchequer, as if in that late age the English tenant had no estate of
fee-simple.  If this had been the case, there could not have been the
difficulty, which he mentions in another place, of distinguishing among
freemen or freeholders (liberi homines) the Norman blood from the Englishman,
which frequent intermarriage had produced.  He must, we are led to think,
either have copied some other writer, or made a careless and faulty statement
of his own.  But, at the present, we are only considering the state of the
English in the reign of the Conqueror.  And here we have, on the one hand, a
manifest proof from the Domesday record that they retained the usufruct, in a
very great measure, of the land; and on the other, the strong testimony of
contemporary historians to the spoliation and oppression which they endured.
It seems on the whole most probable that, notwithstanding innumerable acts of
tyranny, and a general exposure to contumely and insolence, they did in fact
possess what they are recorded to have possessed by the Norman commissioners
of 1085.

     The vast extent of the Norman estates in capite is apt to deceive us. In
reading of a baron who held forty or fifty or one hundred manors, we are prone
to fancy his wealth something like what a similar estate would produce at this
day.  But if we look at the next words, we shall continually find that someone
else held of him; and this was a holding but by knight's service, subject to
feudal incidents no doubt, but not leaving the seigniory very lucrative, or
giving any right of possessory ownership over the land.  The real possessions
of the tenant of a manor, whether holding in chief or not, consisted in the
demesne lands, the produce of which he obtained without cost by the labor of
the villeins, and in whatever other payments they might be bound to make in
money or kind.  It will be remembered, what has been more than once
inculcated, that at this time the villani and bordarii, that is, ceorls, were
not like the villeins of Bracton and Littleton, destitute of rights in their
property; their condition was tending to the lower stage, and with a Norman
lord they were in much danger of oppression; but they were "law-worthy," they
had a civil status (to pass from one technical style to another), for a
century after the conquest.

     Yet I would not extenuate the calamities of this great revolution, true
though it be that much good was brought out of them, and that we owe no
trifling part of what inspires self-esteem to the Norman element of our
population and our polity.  England passed under the yoke; she endured the
arrogance of foreign conquerors; her children, even though their loss in
revenue may have been exaggerated, and still it was enormous, became a lower
race, not called to the councils of their sovereign, not sharing his trust or
his bounty.  They were in a far different condition from the provincial Romans
after the conquest of Gaul, even if, which is hardly possible to determine,
their actual deprivation of lands should have been less extensive.  For not
only they did not for several reigns occupy the honorable stations which
sometimes fell to the lot of the Roman subject of Clovis or Alaric, but they
had a great deal more freedom and importance to lose.  Nor had they a
protecting church to mitigate barbarous superiority; their bishops were
degraded and in exile; the footstep of the invader was at their altars; their
monasteries were plundered, and the native monks insulted.  Rome herself
looked with little favor on a church which had preserved some measure of
independence.  Strange contrast to the triumphant episcopate of the
Merovingian kings! ^p

[Footnote p: The oppression of the English during the first reigns after the
Conquest is fully described by the Norman historians themselves, as well as by
the Saxon Chronicle.  Their testimonies are well collected by M. Thierry, in
the second volume of his valuable history.]