Part 5

"One innovation made by William upon the feudal law is very deserving of attention. By the leading principle of feuds, an oath of fealty was due from the vassal to the lord of whom he immediately held the land, and no other. The King of France long after this period had no feudal, and scarcely any royal, authority over the tenants of his own vassals; but William received at Salisbury, in 1085, the fealty of all landholders in England, both those who held in chief and their tenants, thus breaking in upon the feudal compact in its most essential attribute--the exclusive dependence of a VASSAL upon his lord; and this may be reckoned among the several causes which prevented the continental notions of independence upon the Crown from ever taking root among the English aristocracy."

A more recent writer, Mr. FREEMAN ("History of the Norman Conquest," published in 1871, vol. iv., p. 695), repeats the same idea, though not exactly in the same words. After describing the assemblage which encamped in the plains around Salisbury, he says:

"In this great meeting a decree was passed, which is one of the most memorable pieces of legislation in the whole history of England. In other lands where military tenure existed, it was beginning to be held that he who plighted his faith to a lord, who was the man of the king, was the man of that lord only, and did not become the man of the king himself. It was beginning to be held that if such a man followed his immediate lord to battle against the common sovereign, the lord might draw on himself the guilt of treason, but the men that followed him would be guiltless. William himself would have been amazed if any vassal of his had refused to draw his sword in a war with France on the score of duty toward an over-lord. But in England, at all events, William was determined to be full king over the whole land, to be immediate sovereign and immediate lord of every man. A statute was passed that every FREEMAN in the realm should take the oath of fealty to King William."

Mr. FREEMAN quotes Stubbs's "Select Charters," p. 80, as his authority. Stubbs gives the text of that charter, with ten others. He says: "These charters are from 'Textus Roffensis,' a manuscript written during the reign of Henry I.; it contains the sum and substance of all the legal enactments made by the Conqueror independent of his confirmation of the earlier laws." It is as follows: "Statuimus etiam ut OMNIS LIBER HOMO feodere et sacramento affirmet, quod intra et extra Angliam Willelmo regi fideles esse volunt, terras et honorem illius omni fidelitate cum eo servare et eum contra inimicos defendere."

It will be perceived that Mr. Hallam reads LIBER HOMO as "vassal." Mr. FREEMAN reads them as "FREEMAN," while the older authority, Sir Martin Wright, says: "I have translated the words LIBERI HOMINES, 'owners of land,' because the sense agrees best with the tenor of the law."

The views of writers of so much eminence as Sir Martin Wright, Sir William Blackstone, Mr. Henry Hallam, and Mr. FREEMAN, are entitled to the greatest respect and consideration, and it is with much diffidence I venture to differ from them. The three older writers appear to have had before them the LII of William I., the latter the alleged charter found in the "Textus Roffensis;" but as they are almost identical in expression, I treat the latter as a copy of the former, and I do not think it bears out the interpretation sought to be put upon it--that it altered either the feudalism of England, or the relation of the vassal to his lord; and it must be borne in mind that not only did William derive his title to the crown from Edward the Confessor, but he preserved the apparent continuity, and re-enacted the laws of his predecessor. Wilkins' "Laws of the ANGLO-SAXONs and Normans," republished in 1840 by the Record Commissioners, gives the following introduction:

"Here begin the laws of Edward, the glorious king of England.

"After the fourth year of the succession to the kingdom of William of this land, that is England, he ordered all the English noble and wise men and acquainted with the law, through the whole country, to be summoned before his council of barons, in order to be acquainted with their customs, Having therefore selected from all the counties twelve, they were sworn solemnly to proceed as diligently as they might to write their laws and customs, nothing omitting, nothing adding, and nothing changing."

Then follow the laws, thirty-nine in number, thus showing the continuity of system, and proving that William imposed upon his Norman followers the laws of the ANGLO-SAXONs. They do not include the LII. William I., to which I shall refer hereafter. I may, however, observe that the demonstration at Salisbury was not of a legislative character; and that it was held in conformity with ANGLO-SAXON usages. If, according to Stubbs, the ordinance was a charter, it would proceed from the king alone. The idea involved in the statements of Sir Martin Wright, Mr. Hallam, and Mr. FREEMAN, that the VASSAL OF A LORD was then called on to swear allegiance to the KING, and that it altered the feudal bond in England, is not supported by the oath of vassalage. In swearing fealty, the vassal knelt, placed his hands between those of his lord's, and swore:

"I become your man from this day forward, of life and limb, and of earthly worship, and unto you shall be true and faithful, and bear you faith for the tenements at that I claim to hold of you, saving the faith that I owe unto our Sovereign Lord the King."

This shows that it was unnecessary to call vassals to Salisbury to swear allegiance. The assemblage was of the same nature and character as previous meetings. It was composed of the LIBERI HOMINES, the FREEMEN, described by the learned John Selden (ante, p. 10), and by Dr. Robertson and De Lolme (ante, pp. 12, 13).

But there is evidence of a much stronger character, which of itself refutes the views of these writers, and shows that the Norman system, at least during the reign of William I., was a continuation of that existing previous to his succession to the throne; and that the meeting at Salisbury, so graphically portrayed, did not effect that radical change in the position of English landholders which has been stated. I refer to the works of EADMERUS; he was a monk of Canterbury who was appointed Bishop of St. Andrews, and declined or resigned the appointment because the King of Scotland refused to allow his consecration by the Archbishop of Canterbury. His history includes the reigns of William I., William II., and Henry I., from 1066 to 1122, and he gives, at page 173, the laws of Edward the Confessor, which William I. gave to England; they number seventy-one, including the LII. law quoted by Sir Martin Wright. The introduction to these laws is in Latin and Norman-French, and is as follows:

"These are the laws and customs which King William granted to the whole people of England after he had conquered the land, and they are those which KING EDWARD HIS PREDECESSOR observed before him."

"Hae sunt Leges et Consuetudines quas Willielmus Rex concessit universo Populo Angliae post subactam terram. Eaedum sunt quas Edwardus Rex cognatus ejus obscruauit ante eum.

"Ces sont les leis et les Custums que le Rui people de Engleterre apres le Conquest de le Terre. Ice les meismes que le Rui Edward sun Cosin tuit devant lui.

"LII.

"De fide et obsequio erga Regnum.

"Statuimus etiam ut omnes liiben homines foedere et sacramento affirment quod intra et extra universum regnum Anglias (quod olim vocabatur regnum Britanniae) Willielmo suo domino fideles esse volunt, terras et honores illins fidelitate ubique servare cum eo et contra inimicos et alienigonas defendere."]

This simple statement gets rid of the theory of Sir Martin Wright, of Sir William Blackstone, of Mr. Hallam, and of Mr. FREEMAN, that William introduced a new system, and that he did so either as a new feudal law or as an amendment upon the existing feudalism. The LII. law, quoted by Wright, is as follows:

"We have decreed that all FREE MEN should affirm on oath, that both within and without the whole kingdom of England (which is called Britain) they desire to be faithful to William their lord, and everywhere preserve unto him his land and honors with fidelity, and defend them against all enemies and strangers."

Eadmerus, who wrote in the reign of Henry I., gives the LII. William I. as a confirmatory law. The charter given by Stubbs is a contraction of the law given by Eadmerus. The former uses the words OMNES LIBERI HOMINES; the latter, the words OMNIS LIBERI HOMO. Those interested can compare them, as I shall give the text of each side by side.

Since the paper was read, I have met with the following passage in Stubbs's "Constitutional History of England," vol. i., p. 265:

"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 land with all fidelity, and defend him against his enemies.' But this injunction is little more than the demand of the oath of allegiance taken to the Anglo-Saxon kings, and is here required not of every feudal dependant of the king, but of every FREEMAN or freeholder whatsoever. In that famous Council of Salisbury, A. D, 1086, which was summoned immediately after the making of the Doomsday 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 the act has 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 landowners 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 relations existing between them and the mesne lords would justify them in breaking."

I have already quoted from another of Stubbs's works, "Select Charters," the charter which he appears to have discovered bearing upon this transaction, and now copy the note, giving the authorities quoted by Stubbs, with reference to the above passage. He appears to have overlooked the complete narration of the alleged laws of William I., given by Eadmerus, to which I have referred. The note is as follows:

"Ll. William I., 2, below note; see Hovenden, ii., pref. p. 5, seq., where I have attempted to prove the spuriousness of the document called the Charter of William I., printed in the ancient 'Laws' ed. Thorpe, p. 211. The way in which the regulation of the Conqueror here referred to has been misunderstood and misused is curious. Lambarde, in the 'Archaionomia,' p. 170, printed the false charter in which this genuine article is incorporated as an appendiz to the French version of the Conqueror's laws, numbering the clauses 51 to 67; from Lambarde, the whole thing was transferred by Wilkins into his collection of ANGLO-SAXON laws. Blackstone's 'Commentary,' ii. 49, suggested that perhaps the very law (which introduced feudal tenures) thus made at the Council of Salisbury is that which is still extant and couched in these remarkable words, i. e., the injunction in question referred to by Wilkins, p. 228 Ellis, in the introduction to 'Doomsday,' i. 16, quotes Blackstone, but adds a reference to Wilkins without verifying Blackstone's quotation from his collection of laws, substituting for that work the Concilia, in which the law does not occur. Many modern writers have followed him in referring the enactment of the article to the Council of Salisbury. It is well to give here the text of both passages; that in the laws runs thus: 'Statuimus etiam ut omnis liber homo foedere et sacremento affirmet, quod intra et extra Angliam Willelmo regi fideles esse volunt, terras et honorem illius omni fidelitate eum eo servare et ante eum contra inimicos defendere' (Select Charters, p. 80). the homage done at Salisbury is described by Florence thus: 'Nec multo post mandavit ut Archiepiscopi episcopi, abbates, comitas et barones et vicecomitas cum suis militibus die Kalendarum Augustarem sibi occurent Saresberiae quo cum venissent milites eorem sibi fidelitatem contra omnes homines jurare coegit.' The 'Chronicle' is a little more full: 'Thaee him comon to his witan and ealle tha Landsittende men the ahtes waeron ofer eall Engleland waeron thaes mannes men the hi waeron and ealle hi bugon to him and waeron his men, and him hold athas sworon thaet he woldon ongean ealle other men him holde beon.'"

Mr. Stubbs had, in degree, adopted the view at which I had arrived, that the law or charter of William I. was an injunction to enforce the oath of allegiance, previously ordered by the laws of Edward the Confessor, to be taken by all FREEMEN, and that it did not relate to vassals, or alter the existing feudalism.

As the subject possesses considerable interest for the general reader as well as the learned historian, I think it well to place the two authorities side by side, that the text may be compared:

LII. William I., as given by Eadments. "De fide et obsequio erga Regnum.