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

The right of the convocation’s canons binding the laity in spiritual matters was never doubted in the times of popery, nay till Charles the First’s time, if they had the approbation of the king, who was the head of the church, it was the general opinion, except among the Puritans. But since that time their jurisdiction is settled on a reasonable footing. Their canons bind no man, spiritual or lay, in temporal matters. They bind no layman in spiritual matters; but they bind the clergy in spiritual matters, provided that no right of the laity is thereby infringed. As for instance, there is a canon forbidding clergymen to celebrate marriage out of canonical hours. This doth not bind even a clergyman, for if it did, it would strip the laity of their right of being married at any hour. However it is to be considered whether a canon of the convocation is a new ordinance, or only a repetition of the old ecclesiastical law. If the latter, it binds all men, spiritual and lay, not as a canon, but as the law of the land.

LECTURE XXX.

Robert Duke of Normandy, and William Ruffus, dispute the succession to the Conqueror—The English prefer the latter—The forest laws—The cruelty and oppressions of William—The advancement of Henry, the Conqueror’s youngest son, to the crown of England—He grants a charter—The nature of this charter—His dispute with Anselm concerning Investitures—The celibacy of the clergy—State of the kingdom under Stephen.

William the Conqueror left three sons, Robert, William and Henry. The eldest, Robert, according to the established rules of the French fiefs, succeeded in Normandy, and on account of his primogeniture laid claim also to the crown of England; but what right that gave him, might in those days, well be a question. In the Saxon times the rule was to elect a king out of the royal family, and the election generally fell on the eldest son, though not universally; for the line of Alfred reigned in prejudice to the descendants of his two elder brothers. Edred succeeded to his brother Edmund, in prejudice of Edmund’s two sons; again, on Edred’s death, his son was excluded, and Edmund’s eldest son resigned; and lastly Edward the Confessor was king, though his elder brother’s son was living. So that priority of birth was rather a circumstance influencing the people’s choice, than what gave an absolute right of succession[340].

Another thing, it might be pretended, should determine this point, that is, as William claimed the crown through the will, as he said, of the Confessor, he also had not a power to bequeath the crown. When, therefore, he was making his will he was applied to on this head, but the approach of death seems to make him acknowledge that his only just title was his election, for though he hated his son Robert, and was extremely fond of William, he refused to dispose of it by will. He only expressed his wish that William might succeed, and dispatched him to England, with letters to Lanfranc archbishop of Canterbury, requesting him to influence the election in his favour, and he accordingly was crowned. Indeed, it seems a little odd that William, whose bad qualities were universally known (for he had not one single virtue, except personal bravery) should be preferred to Robert, who, with that virtue, possessed all the amiable virtues of humanity.

That the native English should prefer any one to Robert is not to be wondered at, as he had, on all occasions, expressed the highest aversion to them, but they had no influence in the matter and it appears, at first view, the interest of the English lords, most of whom had also estates in Normandy, to be subject to one monarch, and not have their estates liable to confiscation, on taking part with one of the brothers against the other. But the interest of Lanfranc and the clergy, added to his father’s treasure, which he had seized, and distributed liberally, bore down all opposition; and indeed, it is probable that Robert’s disposition, which was well known, operated in his disfavour; for his extreme indolence and prodigality, and his scruples of using improper means for attaining the most desirable ends (whereas William was extremely active and would stick at nothing) made it easy for persons of any penetration to see in whose favour the contest between the two brothers must end[341].

We have little to say of the laws in his time, for he regarded no laws, divine or human, ecclesiastical or temporal. He chose for judges and courtiers the most profligate persons he could find. And one of the great oppressions his people laboured under was the extending, and aggravating the forest laws. The forests were large tracts of land, set apart by his father for the king’s hunting out of the royal demesnes; and consequently William his father had by his own authority, made laws, and severe ones, to be observed in these districts for the preservation of the game, and erected courts to try offenders, and trespassers in his forests. The great intention of these courts was to fleece his subjects, who were as fond of hunting as their sovereign, by mulcts and fines; and in truth, these were the only oppressions his countrymen, the Normans, suffered under the Conqueror.

But Ruffus flew out of all bounds. He introduced the lawing, as it is called, the Hamstringings of Dogs; nay, he made a law, by his own authority, to make the killing of a deer capital. On pretence of this law he seized many of the great and rich, confined them for years, without bringing them to tryal, until he forced them to compound, and to give up the better part of their estates. Not content with harrassing the laity, he laid sacrilegious hands on the church revenues. Whenever a rich abbey, or bishoprick, fell vacant, he laid his hands on the temporalities, kept them vacant for years, as he did that of Canterbury four years; and even, when he was prevailed upon to fill them, he openly set them to sale in his presence, and gave them to the best bidder. However, in a violent fit of sickness, he promised to reform, and did till he recovered his strength, when his reformation vanished. The remonstrances of his clergy, or the pope, had no effect with him; and, indeed, the circumstances of the times were favourable. For as there were two popes, one made by the emperor, the other, by the Romans, who disowned the imperial authority in that respect, William acknowledged neither, and each was afraid to drive him into his adversaries party, by proceeding to extremities.