[49] They had no other n.o.bility; yet several families amongst them were considered as n.o.ble.
[50] Arma sumere non ante cuiquam moris, quam civitas suffecturum probaverit.--Tacitus de Mor. Germ. 13.
[51] Nihil autem neque publicae neque privatae rei nisi armati agunt.--Tacitus de Mor. Germ. 13.
[52] Caeteri robustioribus ac jam pridem probatis aggregantur.--Id. ibid.
[53] Illum defendere, tueri, sua quoque fortia facta gloriae ejus as signare, praecipuum sacramentum est.--Id. 14.
[54] Deputed authority, guardianship, &c, not known to the Northern nations; they gained this idea by intercourse with the Romans.
[55] Jud. Civ. Lund. apud Wilk. post p. 68.
[56] Spelman of Feuds, ch. 5.
[57] Fuerunt etiam in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia vel per liberas consuetudines.--For the original of copyholds, see Bracton, Lib. I. fol. 7.
[58] Ibi debent populi omnes et gentes universae singulis annis, semel in anno scilicet, convenire, scilicet in capite Kal. Maii, et se fide et sacramento non fracto ibi in unam et simul confderare, et consolidare sicut conjurati fratres ad defendendum regnum contra alienigenas et contra inimicos, una c.u.m domino suo rege, et terras et honores illius omni fidelitate c.u.m eo servare, et quod illi ut domino suo regi intra et extra regnum universum Britanniae fideles esse volunt--LL. Ed. Conf. c. 35.--Of Heretoches and their election, vide Id.
eodem.
Probibitum erat etiam in eadem lege, ne quis emeret vivum animal vel pannum usatum sine plegiis et bonis testibus.--Of other particulars of buying and selling, vide Leges Ed. Conf. 38.
[59] Sheriff in the Norman times was merely the king"s officer, not the earl"s. The earl retained his ancient fee, without jurisdiction; the sheriff did all the business. The elective sheriff must have disappeared on the Conquest; for then all land was the king"s, either immediately or mediately, and therefore his officer governed.
[60] How this a.s.sembly was composed, or by what right the members sat in it, I cannot by any means satisfy myself. What is here said is, I believe, nearest to the truth.
[61] Hence, perhaps, all men are supposed cognizant of the law.
[62] Debet etiam rex omnia rite facere in regno, et per judicium procerum regni.--Debet ... just.i.tiam per consilium procerum regni sui tenere.--Leges Ed. 17.
[63] The non-observance of a regulation of police was always heavily punished by barbarous nations; a slighter punishment was inflicted upon the commission of crimes. Among the Saxons moat crimes were punished by fine; wandering from the highway without sounding an horn was death. So among the Druids,--to enforce exactness in time at their meetings, he that came last after the time appointed was punished with death.
[64] The Druids judged not as magistrates, but as interpreters of the will of Heaven. "Ceterum neque animadvertere, neque vincire, neque verberare quidem, nisi sacerdotibus permissum; non quasi in pnam, nec ducis jussu, sed velut Deo imperante," says Tacitus, de Mor. German.
7.
[65] Si quis emendationem oppidorum vel pontium vel profectionem militarem detrectaverit, compenset regi cxx solidis, ... vel purget se, et nominentur ei xiv, et eligantur xi.--Leges c.n.u.ti, 62.
[66] Si accusatio sit, et purgatio male succedat, judicet Episcopus.--Leges c.n.u.ti, 53.
[67] Every man not privileged, whether he be paterfamilias, (heorthfest,[A]) or pedissequa, (folghere,[B]) must enter into the hundred and t.i.thing, and all above twelve to swear he will not be a thief or consenting to a thief.--Leges c.n.u.ti, 19.
[A] Heorthfeste,--the same with Husfastene, i.e. the master of a family, from the Saxon, Hearthfaest, i.e. fixed to the house or hearth.
[B] The Folgheres, or Folgeres, were the menial servants or followers of the Husfastene, or Housekeepers.--Bracton, Lib. III., Tract. 2, cap. 10.
Leges Hen. I. cap. 8.
[68] Si quis terram defenderit testimonio provinciae, &c.--Leges c.n.u.ti, 76: And sethe land gewerod hebbe be scyre gewitnesse.
[69] See, in Madox, the case in Bishop of Bathes Court See also Brady, 272, where the witnesses on one side offer to swear, or join battle with the other.
[70] Parentibus occisi fiat emendatio, vel guerra eorum portetur; unde Anglice proverbium habetur, Bige spere of side, oththe baer; id est, Eme lanceam a latere, aut fer.--Leges Ed. 12.
The fines on the town or hundred.
Parentes murdrati s.e.x marcas haberent, rex quadraginta. [This different from the ancient usage, where the king had half.] Si parentes deessent, dominus ejus reciperet. Si dominum non haberet, felagus ejus, id est, fide c.u.m eo ligatus.--Leges Ed. 15.
[71] Purveyance. Vide Leges c.n.u.ti, 67.
Si quis intestatus ex hac vita decedat, sive sit per negligentiam ejus, sive per mortem subitaneam, tunc non a.s.sumat sibi dominus plus possessionis (aehta) ipsius quam justum armamentum; sed post mortem possessio (aehtgescyft) ejus quam justissime distribuatur uxori et liberis, et propinquis cognatis, cuilibet pro dignitate quae ad c.u.m pertinet.--Leges c.n.u.ti, 68.
BOOK III.
CHAPTER I.
VIEW OF THE STATE OF EUROPE AT THE TIME OF THE NORMAN INVASION.
Before the period of which we are going to treat, England was little known or considered in Europe. Their situation, their domestic calamities, and their ignorance circ.u.mscribed the views and politics of the English within the bounds of their own island. But the Norman conqueror threw down all these barriers. The English laws, manners, and maxims were suddenly changed; the scene was enlarged; and the communication with the rest of Europe, being thus opened, has been preserved ever since in a continued series of wars and negotiations.
That we may, therefore, enter more fully into the matters which lie before us, it is necessary that we understand the state of the neighboring continent at the time when this island first came to be interested in its affairs.
The Northern nations who had overran the Roman Empire were at first rather actuated by avarice than ambition, and were more intent upon plunder than conquest; they were carried beyond their original purposes, when they began, to form regular governments, for which they had been prepared by no just ideas of legislation. For a long time, therefore, there was little of order in their affairs or foresight in their designs. The Goths, the Burgundians, the Franks, the Vandals, the Suevi, after they had prevailed over the Roman Empire, by turns prevailed over each other in continual wars, which were carried on upon no principles of a determinate policy, entered into upon motives of brutality and caprice, and ended as fortune and rude violence chanced to prevail.
Tumult, anarchy, confusion, overspread the face of Europe; and an obscurity rests upon the transactions of that time which suffers us to discover nothing but its extreme barbarity.
Before this cloud could be dispersed, the Saracens, another body of barbarians from the South, animated by a fury not unlike that which gave strength to the Northern irruptions, but heightened by enthusiasm, and regulated by subordination and an uniform policy, began to carry their arms, their manners, and religion, into every part of the universe.
Spain was entirely overwhelmed by the torrent of their armies, Italy and the islands were hara.s.sed by their fleets, and all Europe alarmed by their vigorous and frequent enterprises. Italy, who had so long sat the mistress of the world, was by turns the slave of all nations. The possession of that fine country was hotly disputed between the Greek Emperor and the Lombards, and it suffered infinitely by that contention.
Germany, the parent of so many nations, was exhausted by the swarms she had sent abroad.
However, in the midst of this chaos there were principles at work which reduced things to a certain form, and gradually unfolded a system in which the chief movers and main springs were the Papal and the Imperial powers,--the aggrandizement or diminution of which have been the drift of almost all the politics, intrigues, and wars which have employed and distracted Europe to this day.
From Rome the whole Western world had received its Christianity; she was the asylum of what learning had escaped the general desolation; and even in her ruins she preserved something of the majesty of her ancient greatness. On these accounts she had a respect and a weight which increased every day amongst a simple religious people, who looked but a little way into the consequences of their actions. The rudeness of the world was very favorable for the establishment of an empire of opinion.
The moderation with which the Popes at first exerted this empire made its growth unfelt until it could no longer be opposed; and the policy of later Popes, building on the piety of the first, continually increased it: and they made use of every instrument but that of force. They employed equally the virtues and the crimes of the great; they favored the l.u.s.t of kings for absolute authority, and the desire of subjects for liberty; they provoked war, and mediated peace; and took advantage of every turn in the minds of men, whether of a public or private nature, to extend their influence, and push their power from ecclesiastical to civil, from subjection to independency, from independency to empire.
France had many advantages over the other parts of Europe. The Saracens had no permanent success in that country. The same hand which expelled those invaders deposed the last of a race of heavy and degenerate princes, more like Eastern monarchs than German leaders, and who had neither the force to repel the enemies of their kingdom nor to a.s.sert their own sovereignly. This usurpation placed on the throne princes of another character, princes who were obliged to supply their want of t.i.tle by the vigor of their administration. The French monarch had need of some great and respected authority to throw a veil over his usurpation, and to sanctify his newly acquired power by those names and appearances which are necessary to make it respectable to the people. On the other hand, the Pope, who hated the Grecian Empire, and equally feared the success of the Lombards, saw with joy this new star arise in the North, and gave it the sanction of his authority. Presently after be called it to his a.s.sistance. Pepin pa.s.sed the Alps, relieved the Pope, and invested him with the dominion of a large country in the best part of Italy.
Charlemagne pursued the course which was marked out for him, and put an end to the Lombard kingdom, weakened by the policy of his father and the enmity of the Popes, who never willingly saw a strong power in Italy.
Then he received from the hand of the Pope the Imperial crown, sanctified by the authority of the Holy See, and with it the t.i.tle of Emperor of the Romans, a name venerable from the fame of the old Empire, and which was supposed to carry great and unknown prerogatives; and thus the Empire rose again out of its ruins in the West, and, what is remarkable, by means of one of those nations which had helped to destroy it. If we take in the conquests of Charlemagne, it was also very near as extensive as formerly; though its const.i.tution was altogether different, as being entirely on the Northern model of government. From Charlemagne the Pope received in return an enlargement and a confirmation of his new territory. Thus the Papal and Imperial powers mutually gave birth, to each other. They continued for some ages, and in some measure still continue, closely connected, with a variety of pretensions upon each other, and on the rest of Europe.
Though, the Imperial power had its origin in France, it was soon divided into two branches, the Gallic and the German. The latter alone supported the t.i.tle of Empire; but the power being weakened by this division, the Papal pretensions had the greater weight. The Pope, because he first revived the Imperial dignity, claimed a right of disposing of it, or at least of giving validity to the election of the Emperor. The Emperor, on the other hand, remembering the rights of those sovereigns whose t.i.tle he bore, and how lately the power which insulted him with such demands had arisen from the bounty of his predecessors, claimed the same privileges in the election of a Pope. The claims of both were somewhat plausible; and they were supported, the one by force of arms, and the other by ecclesiastical influence, powers which in those days were very nearly balanced. Italy was the theatre upon which this prize was disputed. In every city the parties in favor of each of the opponents were not far from an equality in their numbers and strength. Whilst these parties disagreed in the choice of a master, by contending for a choice in their subjection they grew imperceptibly into freedom, and pa.s.sed through the medium of faction and anarchy into regular commonwealths. Thus arose the republics of Venice, of Genoa, of Florence, Sienna, and Pisa, and several others. These cities, established in this freedom, turned the frugal and ingenious spirit contracted in such communities to navigation and traffic; and pursuing them with skill and vigor, whilst commerce was neglected and despised by the rustic gentry of the martial governments, they grew to a considerable degree of wealth, power, and civility.
The Danes, who in this latter time preserved the spirit and the numbers of the ancient Gothic people, had seated themselves in England, in the Low Countries, and in Normandy. They pa.s.sed from thence to the southern part of Europe, and in this romantic age gave rise in Sicily and Naples to a new kingdom and a new line of princes.
All the kingdoms on the continent of Europe were governed nearly in the same form; from whence arose a great similitude in the manners of their inhabitants. The feodal discipline extended itself everywhere, and influenced the conduct of the courts and the manners of the people with its own irregular martial spirit. Subjects, under the complicated laws of a various and rigorous servitude, exercised all the prerogatives of sovereign power. They distributed justice, they made war and peace at pleasure. The sovereign, with great pretensions, had but little power; he was only a greater lord among great lords, who profited of the differences of his peers; therefore no steady plan could be well pursued, either in war or peace. This day a prince seemed irresistible at the head of his numerous va.s.sals, because their duty obliged them to war, and they performed this duty with pleasure. The next day saw this formidable power vanish like a dream, because this fierce undisciplined people had no patience, and the time of the feudal service was contained within very narrow limits. It was therefore easy to find a number of persons at all times ready to follow any standard, but it was hard to complete a considerable design which required a regular and continued movement. This enterprising disposition in the gentry was very general, because they had little occupation or pleasure but in war, and the greatest rewards did then attend personal valor and prowess. All that professed arms became in some sort on an equality. A knight was the peer of a king, and men had been used to see the bravery of private persons opening a road to that dignity. The temerity of adventurers was much justified by the ill order of every state, which left it a prey to almost any who should attack it with sufficient vigor. Thus, little checked by any superior power, full of fire, impetuosity, and ignorance, they longed to signalize themselves, wherever an honorable danger called them; and wherever that invited, they did not weigh very deliberately the probability of success.