Chapter 3

Had it not been for this the Norman host might have fairly claimed a division of the land such as the Danes had made in the ninth century. But to the people who had recognized William it was but just that the chance should be given them of retaining what was their own. Accordingly, when the lands of all those who had fought for Harold were confiscated, those who were willing to acknowledge William were allowed to redeem theirs, either paying money at once or giving hostages for the payment. That under this redemption lay the idea of a new title to the lands redeemed may be regarded as questionable. The feudal lawyer might take one view, and the plundered proprietor another. But if charters of confirmation or regrant were generally issued on the occasion to those who were willing to redeem, there can be no doubt that, as soon as the feudal law gained general acceptance, these would be regarded as conveying a feudal title. What to the English might be a mere payment of _fyrdwite_, or composition for a recognized offence, might to the Normans seem equivalent to forfeiture and restoration.

But however this was, the process of confiscation and redistribution of lands under the new title began from the moment of the coronation. The next few years, occupied in the reduction of Western and Northern England, added largely to the stock of divisible estates. The tyranny of Odo of Bayeux and William Fitzosbern, which provoked attempts at rebellion in 1067; the stand made by the house of Godwin in Devonshire in 1068; the attempts of Mercia and Northumbria to shake off the Normans in 1069 and 1070; the last struggle for independence in 1071, in which Edwin and Morcar finally fell; the conspiracy of the Norman earls in 1074, in consequence of which Waltheof perished--all tended to the same result.

After each effort the royal hand was laid on more heavily; more and more land changed owners, and with the change of owners the title changed. The complicated and unintelligible irregularities of the Anglo-Saxon tenures were exchanged for the simple and uniform feudal theory. The fifteen hundred tenants-in-chief of _Domesday Book_ take the place of the countless land-owners of King Edward's time, and the loose, unsystematic arrangements which had grown up in the confusion of title, tenure, and jurisdiction were replaced by systematic custom. The change was effected without any legislative act, simply by the process of transfer under circumstances in which simplicity and uniformity were an absolute necessity. It was not the change from allodial to feudal so much as from confusion to order. The actual amount of dispossession was no doubt greatest in the higher ranks; the smaller owners may to a large extent have remained in a mediatized position on their estates; but even _Domesday_, with all its fulness and accuracy, cannot be supposed to enumerate all the changes of the twenty eventful years that followed the battle of Hastings. It is enough for our purpose to ascertain that a universal assimilation of title followed the general changes of ownership. The king of _Domesday_ is the supreme landlord; all the land of the nation, the old folkland, has become the king's; and all private land is held mediately or immediately of him; all holders are bound to their lords by homage and fealty, either actually demanded or understood to be demandable, in every case of transfer by inheritance or otherwise.

The result of this process is partly legal and partly constitutional or political. The legal result is the introduction of an elaborate system of customs, tenures, rights, duties, profits, and jurisdictions. The constitutional result is the creation of several intermediate links between the body of the nation and the king, in the place of or side by side with the duty of allegiance.

On the former of these points we have very insufficient data; for we are quite in the dark as to the development of feudal law in Normandy before the invasion, and may be reasonably inclined to refer some at least of the peculiarities of English feudal law to the leaven of the system which it superseded. Nor is it easy to reduce the organization described in _Domesday_ to strict conformity with feudal law as it appears later, especially with the general prevalence of military tenure.

The growth of knighthood is a subject on which the greatest obscurity prevails, and the most probable explanation of its existence in England--the theory that it is a translation into Norman forms of the _thegnage_ of the Anglo-Saxon law--can only be stated as probable.

Between the picture drawn in _Domesday_ and the state of affairs which the charter of Henry I was designed to remedy, there is a difference which the short interval of time will not account for, and which testifies to the action of some skilful organizing hand working with neither justice nor mercy, hardening and sharpening all lines and points to the perfecting of a strong government.

It is unnecessary to recapitulate here all the points in which the Anglo-Saxon institutions were already approaching the feudal model; it may be assumed that the actual obligation of military service was much the same in both systems, and that even the amount of land which was bound to furnish a mounted warrior was the same however the conformity may have been produced. The _heriot_ of the English earl or _thegn_ was in close resemblance with the _relief_ of the Norman count or knight. But however close the resemblance, something was now added that made the two identical. The change of the heriot to the relief implies a suspension of ownership, and carries with it the custom of "livery of seisin." The heriot was the payment of a debt from the dead man to his lord; his son succeeded him by allodial right. The relief was paid by the heir before he could obtain his father's lands; between the death of the father and livery of seisin to the son the right of the "overlord" had entered; the ownership was to a certain extent resumed, and the succession of the heir took somewhat of the character of a new grant. The right of wardship also became in the same way a reëntry, by the lord, on the profits of the estate of the minor, instead of being, as before, a protection, by the head of the kin, of the indefeasible rights of the heir, which it was the duty of the whole community to maintain.

There can be no doubt that the military tenure--the most prominent feature of historical feudalism--was itself introduced by the same gradual process which we have assumed in the case of the feudal usages in general. We have no light on the point from any original grant made by the Conqueror to a lay follower, but judging by the grants made to the churches we cannot suppose it probable that such gifts were made on any expressed condition, or accepted with a distinct pledge to provide a certain contingent of knights for the king's service. The obligation of national defence was incumbent, as of old, on all land-owners, and the customary service of one fully armed man for each five hides of land was probably the rate at which the newly endowed follower of the king would be expected to discharge his duty. The wording of the _Domesday_ survey does not imply that in this respect the new military service differed from the old; the land is marked out, not into knights' fees, but into hides, and the number of knights to be furnished by a particular feudatory would be ascertained by inquiring the number of hides that he held, without apportioning the particular acres that were to support the particular knight.

It would undoubtedly be on the estates of the lay vassals that a more definite usage would first be adopted, and knights bound by feudal obligations to their lords receive a definite estate from them. Our earliest information, however, on this as on most points of tenure, is derived from the notices of ecclesiastical practice. Lanfranc, we are told, turned the _drengs_, the rent-paying tenants of his archiepiscopal estates, into knights for the defence of the country; he enfeoffed a certain number of knights who performed the military service due from the archiepiscopal barony. This had been done before the _Domesday_ survey, and almost necessarily implies that a like measure had been taken by the lay vassals. Lanfranc likewise maintained ten knights to answer for the military service due from the convent of Christ Church, which made over to him, in consideration of the relief, land worth two hundred pounds annually. The value of the knight's fee must already have been fixed at twenty pounds a year.

In the reign of William Rufus the abbot of Ramsey obtained a charter which exempted his monastery from the service of ten knights due from it on festivals, substituting the obligation to furnish three knights to perform service on the north of the Thames--a proof that the lands of that house had not yet been divided into knights' fees. In the next reign, we may infer--from the favor granted by the King to the knights who defended their lands _per loricas_ (that is, by the hauberk) that their demesne lands shall be exempt from pecuniary taxation--that the process of definite military infeudation had largely advanced. But it was not even yet forced on the clerical or monastic estates. When, in 1167, the abbot of Milton, in Dorset, was questioned as to the number of knights' fees for which he had to account, he replied that all the services due from his monastery were discharged out of the demesne; but he added that in the reign of Henry I, during a vacancy in the abbacy, Bishop Roger, of Salisbury, had enfeoffed two knights out of the abbey lands. He had, however, subsequently reversed the act and had restored the lands, whose tenure had been thus altered, to their original condition of rent-paying estate or "socage."

The very term "the new feoffment," which was applied to the knights' fees created between the death of Henry I and the year in which the account preserved in the _Black Book_ of the exchequer was taken, proves that the process was going on for nearly a hundred years, and that the form in which the knights' fees appear when called on by Henry II for "scutage" was most probably the result of a series of compositions by which the great vassals relieved their lands from a general burden by carving out particular estates, the holders of which performed the services due from the whole; it was a matter of convenience and not of tyrannical pressure. The statement of Ordericus Vitalis that the Conqueror "distributed lands to his knights in such fashion that the kingdom of England should have forever sixty thousand knights, and furnish them at the king's command according to the occasion," must be regarded as one of the many numerical exaggerations of the early historians. The officers of the exchequer in the twelfth century were quite unable to fix the number of existing knights' fees.

It cannot even be granted that a definite area of land was necessary to constitute a knight's fee; for although at a later period and in local computations we may find four or five hides adopted as a basis of calculation, where the extent of the particular knight's fee is given exactly, it affords no ground for such a conclusion. In the _Liber Niger_ we find knights' fees of two hides and a half, of two hides, of four, five, and six hides. Geoffrey Ridel states that his father held one hundred and eighty-four _carucates_ and a _virgate_, for which the service of fifteen knights was due, but that no knights' fees had been carved out of it, the obligation lying equally on every carucate. The archbishop of York had far more knights than his tenure required. It is impossible to avoid the conclusion that the extent of a knight's fee was determined by rent or valuation rather than acreage, and that the common quantity was really expressed in the twenty _librates_, the twenty pounds' worth of annual value which until the reign of Edward I was the qualification for knighthood.

It is most probable that no regular account of the knights' fees was ever taken until they became liable to taxation, either in the form of _auxilium militum_ under Henry I, or in that of scutage under his grandson. The facts, however, which are here adduced, preclude the possibility of referring this portion of the feudal innovations to the direct legislation of the Conqueror. It may be regarded as a secondary question whether the knighthood here referred to was completed by the investiture with knightly arms and the honorable accolade. The ceremonial of knighthood was practised by the Normans, whereas the evidence that the English had retained the primitive practice of investing the youthful warrior is insufficient; yet it would be rash to infer that so early as this, if indeed it ever was the case, every possessor of a knight's fee received formal initiation before he assumed his spurs. But every such analogy would make the process of transition easier and prevent the necessity of any general legislative act of change.

It has been maintained that a formal and definitive act, forming the initial point of the feudalization of England, is to be found in a clause of the laws, as they are called, of the Conqueror; which directs that every freeman shall affirm, by covenant and oath, that "he will be faithful to King William within England and without, will join him in preserving his lands and honor with all fidelity, and defend him against his enemies." But this injunction is little more than the demand of the oath of allegiance which had been taken to the Anglo-Saxon kings and is here required not of every feudal dependent of the King, but of every freeman or freeholder whatsoever.

In that famous council of Salisbury of 1086, which was summoned immediately after the making of the _Domesday_ survey, we learn from the _Chronicle_ that there came to the King "all his witan, and all the landholders of substance in England whose vassals soever they were, and they all submitted to him, and became his men and swore oaths of allegiance that they would be faithful to him against all others." In this act have been seen the formal acceptance and date of the introduction of feudalism, but it has a very different meaning. The oath described is the oath of allegiance, combined with the act of homage, and obtained from all land-owners, whoever their feudal lord might be. It is a measure of precaution taken against the disintegrating power of feudalism, providing a direct tie between the sovereign and all freeholders which no inferior relation existing between them and the mesne lords would justify them in breaking. The real importance of the passage as bearing on the date of the introduction of feudal tenure is merely that it shows the system to have already become consolidated; all the land-owners of the kingdom had already become, somehow or other, vassals, either of the king or of some tenant under him. The lesson may be learned from the fact of the _Domesday_ survey.

The introduction of such a system would necessarily have effects far wider than the mere modification of the law of tenure; it might be regarded as a means of consolidating and concentrating the whole machinery of government; legislation, taxation, judicature, and military defence were all capable of being organized on the feudal principle, and might have been so had the moral and political results been in harmony with the legal. But its tendency when applied to governmental machinery is disruptive. The great feature of the Conqueror's policy is his defeat of that tendency. Guarding against it he obtained recognition as the King of the nation and, so far as he could understand them and the attitude of the nation allowed, he maintained the usages of the nation. He kept up the popular institutions of the hundred court and the shire court. He confirmed the laws which had been in use in King Edward's days, with the additions which he himself made for the benefit, as he especially tells us, of the English.

We are told, on what seems to be the highest legal authority of the next century, that he issued in his fourth year a commission of inquiry into the national customs, and obtained from sworn representatives of each county a declaration of the laws under which they wished to live. The compilation that bears his name is very little more than a reissue of the code of Canute; and this proceeding helped greatly to reconcile the English people to his rule. Although the oppressions of his later years were far heavier than the measures taken to secure the immediate success of the Conquest, all the troubles of the kingdom after 1075, in his sons' reigns as well as in his own, proceeded from the insubordination of the Normans, not from the attempts of the English to dethrone the king. Very early they learned that, if their interest was not the king's, at least their enemies were his enemies; hence they are invariably found on the royal side against the feudatories.

This accounts for the maintenance of the national force of defence, over and above the feudal army. The _fyrd_ of the English, the general armament of the men of the counties and hundreds, was not abolished at the Conquest, but subsisted even through the reigns of William Rufus and Henry I, to be reformed and reconstituted under Henry II; and in each reign it gave proof of its strength and faithfulness. The _witenagemot_ itself retained the ancient form, the bishops and abbots formed a chief part of it, instead of being, as in Normandy, so insignificant an element that their very participation in deliberation has been doubted. The king sat crowned three times in the year in the old royal towns of Westminster, Winchester, and Gloucester, hearing the complaints of his people, and executing such justice as his knowledge of their law and language and his own imperious will allowed. In all this there is no violent innovation, only such gradual essential changes as twenty eventful years of new actors and new principles must bring, however insensibly the people themselves--passing away and being replaced by their children--may be educated to endurance.

It would be wrong to impute to the Conqueror any intention of deceiving the nation by maintaining its official forms while introducing new principles and a new race of administrators. What he saw required change he changed with a high hand. But not the less surely did the change of administrators involve a change of custom, both in the church and in the state. The bishops, ealdormen, and sheriffs of English birth were replaced by Normans; not unreasonably, perhaps, considering the necessity of preserving the balance of the state. With the change of officials came a sort of amalgamation or duplication of titles; the ealdorman or earl became the _comes_ or count; the sheriff became the _vicecomes_; the office in each case receiving the name of that which corresponded most closely with it in Normandy itself. With the amalgamation of titles came an importation of new principles and possibly new functions; for the Norman count and viscount had not exactly the same customs as the earls and sheriffs. And this ran up into the highest grades of organization; the King's court of counsellors was composed of his feudal tenants; the ownership of land was now the qualification for the witenagemot, instead of wisdom; the earldoms became fiefs instead of magistracies, and even the bishops had to accept the status of barons. There was a very certain danger that the mere change of persons might bring in the whole machinery of hereditary magistracies, and that king and people might be edged out of the administration of justice, taxation, and other functions of supreme or local independence.

Against this it was most important to guard; as the Conqueror learned from the events of the first year of his reign, when the severe rule of Odo and William Fitzosbern had provoked Herefordshire. Ralph Guader, Roger Montgomery, and Hugh of Avranches filled the places of Edwin and Morcar and the brothers of Harold. But the conspiracy of the earls in 1074 opened William's eyes to the danger of this proceeding, and from that time onward he governed the provinces through sheriffs immediately dependent on himself, avoiding the foreign plan of appointing hereditary counts, as well as the English custom of ruling by viceregal ealdormen. He was, however, very sparing in giving earldoms at all, and inclined to confine the title to those who were already counts in Normandy or in France.

To this plan there were some marked exceptions, which may be accounted for either on the ground that the arrangements had been completed before the need of watchfulness was impressed on the King by the treachery of the Normans, or on that of the exigencies of national defence. In these cases he created, or suffered the continuance of, great palatine jurisdictions; earldoms in which the earls were endowed with the superiority of whole counties, so that all the land-owners held feudally of them, in which they received the whole profits of the courts and exercised all the "regalia" or royal rights, nominated the sheriffs, held their own councils, and acted as independent princes except in the owing of homage and fealty to the King. Two of these palatinates, the earldom of Chester and the bishopric of Durham, retained much of their character to our own days. A third, the palatinate of Bishop Odo in Kent, if it were really a jurisdiction of the same sort, came to an end when Odo forfeited the confidence of his brother and nephew. A fourth, the earldom of Shropshire, which is not commonly counted among the palatine jurisdictions, but which possessed under the Montgomery earls all the characteristics of such a dignity, was confiscated after the treason of Robert of Belesme by Henry I. These had been all founded before the conspiracy of 1074; they were also, like the later lordships of the marches, a part of the national defence; Chester and Shropshire kept the Welsh marches in order, Kent was the frontier exposed to attacks from Picardy, and Durham, the patrimony of St. Cuthbert, lay as a sacred boundary between England and Scotland; Northumberland and Cumberland were still a debatable ground between the two kingdoms. Chester was held by its earls as freely by the sword as the King held England by the crown; no lay vassal in the county held of the King, all of the earl. In Shropshire there were only five lay tenants _in capite_ besides Roger Montgomery; in Kent, Bishop Odo held an enormous proportion of the manors, but the nature of his jurisdiction is not very clear, and its duration is too short to make it of much importance. If William founded any earldoms at all after 1074 (which may be doubted), he did it on a very different scale.

The hereditary sheriffdoms he did not guard against with equal care. The Norman viscounties were hereditary, and there was some risk that the English ones would become so too; and with the worst consequences, for the English counties were much larger than the bailiwicks of the Norman viscount, and the authority of the sheriff, when he was relieved from the company of the ealdorman, and was soon to lose that of the bishop, would have no check except the direct control of the King. If William perceived this, it was too late to prevent it entirely; some of the sheriffdoms became hereditary, and continued to be so long after the abuse had become constitutionally dangerous.