Читать книгу A History of England: Mediæval Monarchy - J. Franck Bright - Страница 12

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The Mark system.

The chief interest in the Conquest is the change that it is always said to have exercised in the character of the institutions of England. It used to be asserted that the feudal system was introduced, and completed as a wholly new system to the English, after the Conquest; and Hume speaks of the division of the kingdom into so many knights’ fiefs, into so many baronies, as if there were complete reorganization of the whole constitution. Modern inquiry tends to confirm what would naturally have been supposed, that the whole of the elements of the feudal system existed in England as in other Teutonic countries before the arrival of the Normans. The form which the civilization of the Scandinavian and Teutonic nations took seems to have been that of a collection of village communities, such as may be seen at work at present in India. The district occupied by such community was called the Mark, and was divided into three parts, in each of which every free member of the community had his share, but which were cultivated in strict accordance with the customary system of agriculture which no one might break. There was first the village, then the arable mark (cultivated land), then the common pasture, and beyond that the waste. Every freeman had a share in the arable and in the common pasture, but he was bound to sow the same crops as his neighbours, and to follow the same arrangement, which appears to have been simple and barbarous. The common fields, or mixed lands as they are called, were divided into three strips by broad grassy mounds; one was sown with autumn crops, one with spring crops, and the third left fallow. In the same way, though under somewhat varying rules, the grass mark was partitioned. Frequently all enclosures were removed at the close of the hay harvest, and the cattle grazed in common, as they were allowed to do also in the stubble of the arable mark. Lands were probably redistributed at certain intervals of time, and the power of devising hereditary property by will was strictly restrained. Traces of common fields cultivated on the threefold system, and of customary cultivation, are still to be found in England, and were plentiful in the last century.

German institutions.

Division of ranks.

The Comitatus.

Growth of feudalism.

But though this system would appear to have been common in nations of Germanic origin, it can be gathered from the Germania of Tacitus that other political institutions existed in Germany. Thus, the subdivisions of the Tribe were called Pagi, which seem to answer to the English Hundred. The Pagus was under the official chieftainship of an elective head called the Princeps, answering to the Saxon Ealdorman. This Pagus, which may perhaps have been originally a division of a hundred heads of families, supplied a hundred warriors to the host, a hundred assessors at the Judicial Court of the Princeps. Below this we come to the Vicus or township, which was probably organized upon the Mark system above described, or on some modification of it. The commanders in war, or Duces, were elected, probably from among the Principes, for each special occasion. It is, moreover, clear that private property had begun to exist. In pastoral life, where the common right of grazing would be the chief common privilege, there would be no difficulty in one man possessing more cattle than another. Neither would it be a great step to grant to such wealthier men, upon the redivision of the common arable mark, extra shares for the support of slaves or dependent freemen whom his wealth had attracted around him. There also existed a variety of ranks, which may be roughly divided into three classes,—the noble or eorl, who must have owed his nobility to birth; the freeman or ceorl, possessing his own homestead, his own share in the common land, and dependent on no man; and the læt or dependent workman, cultivating his lord’s land. Besides these, there were actual slaves or theows, consisting of men who had lost their liberty either as captives, or for debt, or for some other easily conceivable causes. It does not appear that nobility of birth gave any additional political rights, although personal consideration was awarded to the noble. It was the possession of free land which made a man a full member of the tribe. The læts, however, were probably dependent only as regarded their lord, in every other respect free. Thus, like other members of the community, their death had to be atoned for by the payment of a sum of money or weregild, although the sum was smaller than in the case of freemen. They probably formed a considerable part of the armed force of the nation. The class may have consisted originally of a conquered population of kindred blood, or of men who voluntarily put themselves into a state of dependency upon their richer neighbours for security, or because for some reason they had become landless. Side by side with this democratic constitution, there was a peculiar institution known as the Comitatus. Each Princeps was allowed to collect around him, under a tie of personal dependence, a body of professed warriors, who were bound to him by the closest ties of honour; and the importance of each chief must have depended in a great degree upon this following. In case of conquest, it would naturally be the duty of the conquering chief to see to the welfare of his followers, and to give them grants, which might either be grants in perpetuity, or only the right of present possession, and which would be drawn from the conquered land remaining over after its distribution among the body of freemen. To cultivate these grants, the comrades of the king would have had to employ their own dependants, and these dependants would settle in villages, which took the form of village communities, except that the rights, which in the free communities would be vested in the whole body of the freemen, were in this case vested in the lord. We here have the germ of the relation between vassal and lord. But this element of feudalism soon acquired greater strength. The conquering chief would take upon himself the title of king, claim descent from the gods, and make his line hereditary. As the position of the king advanced, the position of the comrade or Gesith would advance also. As the king of a tribe became the king of a nation his dignity would greatly increase, and with his that of his followers, who, as the court became more formal, would accept as honours duties about the household, and the word Gesith, comrade, changed into Thegn or servant. In times of war such nobles by service became natural leaders of the people, and the position of the chief men of the village proportionately sunk. So that there arose a class of nobles in immediate connection with the crown, possessing property not belonging to a village community, and exercising rights of lordship over its inhabitants. It is not difficult to see in what a superior position they were thus placed; what powers of encroachment they might have; and how willingly, in times of danger, village communities would put themselves in the same position with regard to them, as that occupied by those settlers on the Thegn’s lands, who had always acknowledged them as their lords. We have therefore two sources from which feudalism might have arisen; the village headman, in accordance with what seems to be a general law, as his powers came to be legally defined (especially in the matter of collecting the king’s taxes), would be regarded as the hereditary lord of the village, and would obtain the right of permanently enclosing his share of the common land; while the king’s Thegn, side by side with him, would plant his own subject villages, and accept by what is called commendation the supremacy of such villages as might offer it to him.

Saxon institutions introduced into England.

Land.

The Saxons then brought with them, in their invasion of England, their threefold division of rank, their association or township, their Pagus or Hundred, the Mark system, the principle of election to public functions, and the Comitatus or personal following of their chiefs. The conquering Principes or Ealdormen became kings. The country in all probability was divided out with some degree of regularity between villages, similar in constitution with those of Continental Germany. There was no necessity for these apportionments being equal. But a certain number of villages, whatever their property was, were divided into Pagi or Hundreds. This explains the inequality of those divisions. The unoccupied land was left in the king’s hands to reward his chief followers. On these demesnes, and on the public lands, the læts found their homes, with such of the conquered race as remained; and from time to time fresh estates were granted as fresh conquests increased the surplus land. From this land also the monasteries were endowed. The portion allotted to each free household was called the Hide. Land held by hereditary possession or by original allotment was called the Ethel. That held by grant from the public land and by charter was called Bocland (i.e. book-land). The land neither partitioned nor granted was the common property of the nation, and was called Folcland. As all land, whether bocland or folcland, could be let out, and was so treated on various conditions, there was much variety in the tenures of that class of people who did not possess free land of their own.

Judicial organization.

Whether the mark system prevailed to any great extent or not, (and this is a somewhat uncertain point,) practically it was the township which formed the lowest part of the general organization. The hundred was a collection of townships, the shire a collection of hundreds. The chief officer of the township, the town reeve, was elected by the freeholders of the township, and with four of their number represented that township in the Court of the Hundred, of which the township was a subordinate division. Townships established upon the lands of lords also had their reeve, but probably he was appointed by the lord. Their constitution was the same, but the proprietor of the soil took the duties and privileges which in a free township belonged to the freeholders. Such townships formed manors. It was from the township also that the burghs or towns arose. The Saxons had a natural dislike for town life, and we must not look for the arrangements of the borough to the remnants of Roman civilization. But when the village grew very large the same constitution as existed in the township was employed, the freeholders within the limits of the borough forming the municipal body. Such boroughs may also frequently have arisen from an agglomeration of townships. They would then be analogous to the hundred. The existence of two or three parishes in most boroughs leads to the same conclusion; for, ecclesiastically, the limits of the township and the parish were the same. Such towns, growing up naturally round the dwellings of wealthy men or of the king, would generally be either on folcland, and as such, dependent upon the crown, or upon the land of some lord on whom they would then depend. When the national system became organized, there would thus be the Court of the Township, with its counterpart in the dependent Township of the Manor Court. Above that, the Hundred Court, presided over by the Hundred-man, while the township were represented by their Reeve and four members. And above that there was the Shire Court or Gemot. The shires were not, properly speaking, part of the original organization. They seem to be in most cases the old sub-kingdoms. The Court, therefore, of the Shire represented the National Court. Over these sub-kingdoms or shires was appointed a royal officer, shire-reeve or sheriff, representative of the king for judicial and fiscal purposes. There is no proof that he was an elective officer. Beside the sheriff, who represented the central authority, was the Ealdorman, who had the command of the military force of the shire and the third of the fines levied. He was the representative of the old sub-king. He was a national officer, appointed by the king and by the central assembly of the nation, the Witana-Gemot. He sat with the sheriff in the Shire Court, but it would seem that the sheriff was the official whose presence constituted the court. In all the courts it was a principle that the suitors of the court, those, that is, who were liable to its jurisdiction, were also the judges; that is to say, the courts were essentially popular. The whole body present settled the disputes or judged the crimes of the individuals, the chief officer being, in fact, the chairman. Practically, in the Shire Court, twelve chief Thegns or chief freeholders sat with the sheriff as judges, representatives of the whole body. It was also a principle, at all events originally, that no superior court should have jurisdiction till the inferior courts had done their best towards the settlement of the disputed point.

Ecclesiastically, the parishes were co-extensive with the townships, the bishoprics in a great degree co-extensive with the shires or ancient kingdoms.

Growth of territorial jurisdiction.

In process of time, the position of the king somewhat changed. He began to be regarded as the one lord of the land. From being the King of the Saxons he gradually became the King of England. His personal relation became territorial. The folcland became royal demesne, and the king came to be regarded as the origin of justice. This change, among other causes, tended much to the growth of a system which was in fact incipient feudalism. The national courts constantly became more the private courts of great lords. The connection between the possession of land and the judicial power grew constantly stronger. It had early been the custom to establish in the favour of lords to whom grants were made Liberties, or Soken, as they were called; that is, land was granted exempted from the jurisdiction of the Hundred. The judicial rights of the Hundred, together with the payments accruing from them, were vested in the lord who received the grant. These rights are implied in the words sac and soc. As townships on a lord’s land became manors, so these Liberties, on which there were many townships, became private Hundreds. They were probably, before the Conquest, not exempted from the jurisdiction of the Shire. It has been already mentioned that, either by commendation or by the encroachment of local magnates, freemen (allodial proprietors as they were called) took in many cases the position of dependants. Their property then assumed the character of bocland, or land held by charter, instead of hereditary freehold. By commending themselves to a lord they would free themselves from the burden of military duty, which would then fall upon the lord as proprietor of the land. Justice would be more easily obtained from the neighbouring court of the lord than from the distant court of the Hundred or county. Protection from invasion or from the violence of neighbours would be gained. Again, the police regulation, by which all landless men were obliged to seek a lord, would strengthen the idea of the necessity of dependence.

Meanwhile, the Franchises and territorial jurisdictions went on increasing till the ideas of possession of land and jurisdiction began to go constantly together. The Thegn, who only possessed five Hides, had his court. In the time of Cnut a further step was taken. The wealthy landowner, under the name of Landrica, represented the king in his district, and had jurisdiction over the lesser freeholders. While, to crown all, the new position of the king gave him the sole jurisdiction over the holders of bocland, to which, as we have seen, allodial property was gradually assimilating itself. In all these ways private and territorial jurisdictions were strengthened, and enabled very largely to encroach upon the national and popular courts. The position of the Landrica was little else than that of a feudal baron, and the independence of the great hereditary official, so marked a characteristic of Continental feudalism, was almost reproduced in England, when Cnut divided the kingdom into four great Earldoms.

Central government. The Witan.

Increased power of the King.

Finance.

To pass from the local government to the central. It has been seen that justice and municipal law were carried on through a series of free assemblies or Gemots; so too the general meeting, or Gemot of the nation, constituted the chief legislative and judicial assembly. This was called the Witan or wise men, or the Witana-Gemot or assembly of wise men. It was doubtless originally the National Assembly of all free men, but by an easy change which befalls all such assemblies, attendance on it grew awkward to the multitude, and was shortly confined to those who bore office about the court, the king’s Thegns and bishops. The principle of representation was not understood, and the freemen, although they possessed an inherent right to be present, were not in fact represented, except in so far as the presence of friendly and neighbouring Thegns might be held to represent them. The power of the Witan was great and various, being in theory the power of a free nation. They could elect and discrown a king, and practically did elect him, though usually from among the nearest relatives of the late king. A remnant of this elective form of the monarchy still exists in our form of coronation. Peace and war were discussed in the Witan. The co-operation of the Witan was necessary to authorize alienation of public land; and to them ultimate judicial appeals were made. Early in the eleventh century, however, the king had so far improved his position that he was able to grant land without their leave, and also to call to his court cases not yet completed in the lower courts. The same change in the character of the king, which has been already mentioned, shows itself here also. He was originally the leader of a free tribe, perhaps of a clan, but gradually as his dominion extended his power rose also; and his personal influence, though somewhat undefined, was paramount. The great king could always wield the Witan as he pleased. His office was, as has been said, elective, but under certain restrictions. It seems to have been regarded as necessary that he should be an Ætheling (or born in legitimate wedlock), and in England. With this limit, and with a certain preference allowed to the eldest son, and to the one whom the dying king nominated, the choice of the Witan was free; and, practically, the prince of the royal house best fitted for the immediate circumstances of the kingdom was chosen. Thus the king’s brother was sometimes chosen instead of his son, who, in his turn, might succeed his uncle to the exclusion of his uncle’s children. This preference for the best man over the nearest relative continued after the Conquest, and renders erroneous the appellation of usurper when applied to the early Norman kings. The arrangements of finance, as far as they can be understood, were very simple. Upon every citizen, whether agricultural or urban, there was laid a trinoda necessitas, that is to say, the duty of serving in war, the repair of bridges and public roads, and the maintenance of fortifications. It is plain, therefore, that the wants of the crown were chiefly personal, that what we consider the chief expenses of government, justice, maintenance of public works, and military expenditure, were supported by the people themselves, without the interposition of government. The expenses of the crown would be discharged very largely from the public property or folcland reserved to the nation, and from such taxes as were rendered necessary from time to time to support the grandeur and hospitality of the king as national representative.

Police.

The system of police was based on the idea of mutual responsibility. Frankpledge or frithbohr, by which is meant the division of the country into sections of ten men mutually responsible for one another, cannot be proved to have existed before the Conquest. On the other hand, its principle no doubt existed. Every man, by the law of Cnut, was bound to be in a Hundred and a tithing. This latter term cannot be accurately defined, but it was a subdivision of the Hundred. By the laws of Æthelstan and Eadgar every landless man was compelled to have a lord to answer for him in the courts, and every man a surety to answer for him if he were absent when legally required.

From this sketch it will be seen that, with regard to classes, there must have been at the time of the Conquest Thegns, who were to all intents and purposes feudal barons; Sokmen, those freemen who owed suit to the lord’s soke or court; a certain number of Eorls or nobles by birth, who would most likely have become assimilated to the Thegns; freeholders, holding land in common where it had not yet come under the suzerainty of a lord (this same class of freemen degenerated under various circumstances and with varying tenures into villeins, or dependent cultivators, under lords); and absolute slaves, consisting originally probably of the conquered race, and added to by criminals and outlaws, or others who had lost their rights as freemen.

There was here every element of the feudal system. Even the tenure of land upon military service existed. The main distinction between the condition of England and that of the Continent, where the feudal system had been fully established, lay in this,—there still existed a certain number of freemen whose land was their own. They were indeed obliged to acknowledge the jurisdiction of a lord, but they were free to choose their own lord. They were suitors to his court, but he did not possess their land. The feudal system in its completed form may be regarded as exhibiting two peculiar features:—jurisdiction was in the hand of large landowners; and the lord was regarded as the possessor of the land over which he exercised jurisdiction. In England, one feature alone had become prominent. The judicial power was in the hand of large landowners; but their jurisdiction extended over men whose land they did not possess, but who were owners of their own property, and able to attach themselves to any lord they liked. With the Conquest, while the judicial power was restrained, the connection between that power and the possession of land over which it was exercised became absolute.

The Church.

The Church occupied a position of very great importance. It was the guardian of the morality of the country, and as such had a share in all secular jurisdictions; but it was the remnant of a national Church, not closely united to the Roman See. It was therefore inclined to be somewhat disorderly. Its bishops were appointed properly by the king and the Witan, but latterly the power had practically been with the king alone. These bishops obtained their license from the Pope. But the case of Archbishop Stigand, to whom the Pope had not sent the Pallium, shows how little weight was given to this proceeding. Similarly, the lower clergy had formed the habit of marrying, contrary to Papal laws, and although there was a growing feeling that this was wrong, the practice still continued while the monks were constantly attempting to break free from their rules and establish themselves as canons.

Effects of the Conquest.

Restraints upon feudalism.

To such a civilization came William, who had seen the evils of Continental feudalism in his own country, and had secured his position only after long struggles. He claimed England, not as a conqueror, but as the legitimate sovereign, nominated by Edward the Confessor, and as such was accepted by the Witan, and crowned in London after the battle of Senlac. His natural policy was, therefore, to continue such institutions as were not yet feudal, and thus his arrival checked that natural growth of feudalism which was running its course in England as in other Teutonic countries. On the other hand, it was impossible from his position that he should do otherwise than introduce many feudal institutions. He had brought with him many of his vassals, who held from him in feudal tenure; and it was necessary, when, from the confiscated lands of Harold and his family and of the other nobles who either opposed his entrance into England or afterwards revolted against him, he made large grants to reward the adventurers of whom his army mainly consisted, he should make those grants in accordance with the system with which he was acquainted in exchange for military service, and saddled with the usual feudal burdens. While he thus, on the one hand, was the national English sovereign, on the other he was the supreme landowner and feudal lord. Under this double influence, the tenure of land, following the universal tendency of Europe, became wholly feudal and military. But the other side of feudalism—with its isolation, the virtual independence of the feudatories (among whom the king was but the first among his peers), and the suppression of national jurisdiction, which were the chief characteristics of French feudalism—was kept in careful restraint. Thus, the whole machinery of justice, the Hundred Court and the Shire Gemot were retained under presidency of the sheriff, side by side with that territorial jurisdiction which he could not refuse to his feudal vassals. The police system of mutual responsibility was kept up and systematized under the name of frankpledge, and on the whole nation still lay the trinoda necessitas. The Witan remained, although its members were now feudal vassals; the laws as they existed were for the most part perpetuated, though certain emendations were made, such as the law of Englishry,[4] for the protection of his Norman subjects, and the liberty allowed to the different nationalities to be tried according to their own law. At the same time, the further to restrain the independent power of the great feudatories, the great earldoms which Cnut had created were broken up, with the exception of three border counties, Chester, Durham, and Kent; the business of the counties was transacted by the sheriff, who was a royal officer, and the earldoms were either of one county only, or if of more than one, of counties far apart. As a final court of appeal, he established the Curia Regis, formed of the Justiciary (who was the king’s representative and regent when he left the country), with a staff of justices, consisting originally of the officers of the household, but tending gradually to consist of new nobility appointed by the king for the purpose. This was the final court of appeal, and could draw to it any suit from the county court. But the chief restriction upon military feudalism, which rendered its appearance in England impossible, was, that each freeholder swore allegiance, not to his immediate lord, but to the king. Abroad, if a great noble went to war with the king, his vassals were doing right in following him; in England, they were committing treason.

William’s position.

This oath was exacted after the great work of the Domesday Book was completed. This book consisted of a registration of all the lands in the kingdom, made by commissioners, after inquiry upon oath of the chief men and lesser freeholders of each district. By it not only were the limits of property settled, but the king knew what resources he could rely upon both in men and money. The king’s power was nominally limited by the “counsel and consent” of the National Council, which was at once the old English Witan and a feudal assembly, but its power was really nominal. The taxes seldom called for interference, as they were derived principally either from the old national dues, the ferm of the shire (a fixed rent of the old public lands and royal domains), the danegelt, and the proceeds of fines or feudal aids. The army was also completely in the king’s hands; as national sovereign, the old national militia was at his command; as feudal sovereign, he could claim the military service of his vassals, which was defined in every case by the Domesday Book, while the whole people were bound to him by oath. We thus see William the Conqueror occupying the position of a practically irresponsible monarch, with a mixed monarchy of national and feudal character, but, with the exception of some parts of the administration of justice, carried on wholly under feudal forms.

The Church.

As regards the Church, two important changes were made. As the champion of orthodoxy, William, by means of his Archbishop, Lanfranc, restored the Roman discipline to the Church, and connected it closely with the See of Rome. And, secondly, he separated the ecclesiastical jurisdiction from the secular. The bishops withdrew from the county court (perhaps finding their position there useless now that those courts had sunk in importance), and established courts of their own. During William’s reign no inconvenience arose from this, but the inherent defects of the step became obvious when Henry II. attempted to reorganize the kingdom after the disorder of Stephen’s reign. The Conqueror’s police was unusually strict. It became the common saying that a man laden with gold could pass unharmed through the country. He abolished the penalty of death (which was, however, speedily resumed), and substituted mutilations of various kinds. He also repressed the right which the Saxon laws had allowed of killing the murderer or the thief when taken red-handed. It has been suggested that the great forests he created, and the care with which they were maintained, is to be attributed as much to the king’s desire to maintain an efficient staff of police always ready as to his great love of hunting.