Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

But experience soon shewed what effects might follow from the construction of Norman judges, at the devotion of a king, upon the word relevium being used, and its becoming payable by the heir, instead of the executor; his son and successor insisted that reliefs were by the feudal law arbitrary, and looked upon his father’s limiting them as a void act, that could not bind his successors. He, accordingly, exacted arbitrary and excessive reliefs both from the Norman and Saxon landholders in England, which exasperated both equally against him; for though the reliefs in France were, by no law, as yet reduced to a certainty, yet by custom they were to be reasonable, and not to be merely at the will and discretion of the king or lord; in consequence of which he was, on some occasions, forced to depend almost entirely, in his wars with Normandy, on the mercenary army of the lower English, who had no property; and had his reign continued much longer, it is extremely probable he would have felt severely for the oppressions he laid his military tenants of both nations under. But he dying in ten years, Henry was obliged, before he was elected, to swear to observe the laws of Edward the Confessor, which he did, with such emendations as his father the Conqueror had made; and accordingly, as to reliefs he faithfully observed his oath; but it being inconvenient for the heir, who was at a call to perform military duty, to be obliged to pay his relief in arms, which he might want on a sudden emergency, it was therefore, generally commuted for money. However, there being no settled rate fixed, at which this commutation should be regulated, this also was made an engine of oppression in John’s reign, until it was finally fixed at a certain sum of money, according to the different ranks of the persons, by Magna Charta[327].

As to the last argument, of the Oath of fealty being taken by the Saxons, it is the weakest of all. An oath of fealty taken by a feudal tenant, was to his lord, whether king or not. It was merely as tenant to him of land, and in consideration of such, and consequently the proprietors of land only were to take it. The oath the Saxons took, which is likened to this, was to the king, as king not as landlord, and not at all in consideration of land; for every male person above the age of twelve years was obliged to take this oath among the Saxons, whether he had lands or not. In truth, it was no more than an oath of allegiance to the king, as king, which was common in all kingdoms, and not peculiar to those where the feudal maxims prevailed[328].

Hence I think I have some liberty to conclude, though I do it with due deference, as the greatest masters in the antient laws and records of England have been divided in this point, that the very reasons urged to prove that lands were held in the Saxon times as feudal inheritances, prove rather the contrary, and that they were, in the general I mean, of the nature of the allodial lands on the continent.

In my next I shall speak of the alterations introduced by the conqueror, both as to the tenure of lands in England, and as to the administration of justice, which were so remarkable, as to deserve to be considered with the strictest attention, as they laid the foundation for the great alterations that have followed since.

LECTURE XXVIII.

The Saxons, though their lands in general were allodial, were not strangers to military benefices for life—The alterations introduced by William the Norman, as to the tenure of lands in England.

Though, in my last, I have delivered my opinion, that the lands of the Saxons were not feudal, but allodial, I would not be understood as if there were no lands held by them upon military service, different from the allodial I have already described. It is undeniable, that there was among them lord and vassal; that there were lands held by such military service as was performed abroad; where the bond of fealty subsisted between lord and tenant, and where the tenants were obliged to serve in person on horseback. But these were few; for the strength of the Saxon army lay in their infantry. Besides, such were not feudal inheritances, but benefices for life, for, in all the records remaining of them, there is not a word implying an estate that could descend, or a single trace of wardship, marriage, or relief, the necessary concomitants of such estates. What puts that out of all doubt, in my apprehension, is one of the laws of William himself, where he says it was he that granted lands in feudum, jure hæreditario, which words are added, by way of distinguishing the estates he granted from the military estates for life, in use before. The word feudum alone would have been sufficient, had that law been in use before, and the words jure hæreditario were added by way of explanation of feudum; and feudum is added by way of distinction from allodial inheritances[329].

When these military benefices began among the Saxons, I cannot say is determined, but shall offer a conjecture, that carries a great face of probability. That they were not coeval with the Heptarchy is certain; for none of the German nations had, at that time, fixed estates for life in their military holdings. What time, then, so probable as the days of Egbert, who had resided long in the court of Charlemagne, where these tenures were in use, and where he saw the benefit of them? Besides, this was the very time that a body of horse began to be wanted, who could move swiftly to encounter the Danes, then beginning their ravages, and whose practice it was to land in separate bodies, and to kill and plunder, until a superior force assembled, and then reimbarking, to commit the same devastations on some other defenceless part of the coast. But these kind of tenures, as I observed before, could be but few, as most of the lands were inheritances appropriated to particular families.

To come now to William. A single battle, wherein Harold and the flower of the nobility were slain, determined the fate of England. However, many of the great men survived, and the bulk of the nation were averse to his pretensions. A weak attempt was made to set up Edgar Atheling, the only prince remaining of the royal race, but the intrigues of the clergy, who were almost universally on the invader’s side (on account of his being under the protection of the pope, and having received from him a consecrated banner) co-operating with the approach of his victorious army, soon put an end to Edgar’s shadow of royalty. He submitted, as did his associates, and they were all received, not only with kindness but with many high marks of distinction. William, accordingly, was crowned with the unanimous consent of the nation, upon swearing to the laws of Edward the Confessor; and it must be owned he behaved, during his first stay, with the utmost equal justice and impartiality between the Normans and natives. But the continuing to act in that manner did not consist with his views, which were principally two; the first to gratify his hungry adventurers with lands, the next to subvert the English law, and introduce the feudal and Norman policy in lieu of it[330].