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The History of the Common Law of England
V.
by Hale, Matthew


How the Common Law of England stood at and for some Time after the coming in of King William I

It is the Honour and Safety, and therefore the just Desire of Kingdoms that recognize no Superior but God, that their Laws have those two Qualifications, viz. 1st. That they be not dependent upon any Foreign Power; for a Dependency in Laws derogates from the Honour and Integrity of the Kingdom, and from the Power and Sovereignty of the Prince thereof. Secondly, That they taste not of Bondage or Servitude; for that derogates from the Dignity of the Kingdom, and from the Liberties of the People thereof.

In Relation to the former Consideration, the Kings of this Realm, and their great Councils, have always been jealous and careful, that they admitted not any Foreign Power, (especially such as pretended Authority to improve Laws upon other free Kingdoms or States) nor to countenance the Admission of such Laws here as were derived from such a Power.

Rome, as well Ancient as Modern, pretended a kind of universal Power and Interest; the former by their Victories, which were large, and extended even to Britain itself; and the later upon the Pretence of being Universal Bishop or Vicar-General in all Matters Ecclesiastical; so that upon Pretence of the former, the Civil Law, and upon Pretence of the later, the Canon Law was introduc'd, or pretended to some Kind of Right in the Territories of some absolute Princes, and among others here in England: But this kingdom has been always very jealous of giving too much Countenance to either of those Laws, and has always shewn a just Indignation and Resentment against any Encroachments of this Kind, either by the one Law or the other. It is true, as before is shewn, that in the Admiralty and Military Courts, the Civil Law has been admitted, and in the Ecclesiastical Courts, the Canon Law has been in some Particulars admitted. But still they carry such Marks and Evidences about them, whereby it may be known that they bind not, nor have the Authority of Laws from themselves, but from the authoritative Admission of this Kingdom.

And, as thus the Kingdom, for the Reasons before given, never admitted the Civil or the Canon Law to be the Rule of the Administration of Common Justice in this Kingdom; so neither has it endured any Laws to be imposed upon the People by any Right of Conquest, as being unsuitable to the Honour or Liberty of the English Kingdom, to recognize their Laws as given them at the Will and Pleasure of a Conqueror. And hence it was, that altho' the People unjustly assisted King Hen. 4 in his Usurpation of the Crown, yet he was not admitted thereunto, until he had declared, that he claimed not as a Conqueror, but as a Successor; only he reserved to himself the Liberty of extending a Pretence of Conquest against the Scroops that were slain in Battle against him; which yet he durst not rest upon without a Confirmation in Parliament. Vide Rot. Parl. 1 H. 4. No. 56. & Pars 2. Ibid. No 17.

And upon the like Reason it was, That King William I tho' he be called the Conqueror, and his attaining the Crown here, is often in History, and in some Records, called Conquestus Angliae; yet in Truth it was not such a Conquest as did, or could alter the Laws of this Kingdom, or impose Laws upon the People Per Modum Conquestus, or Jure Belli: And therefore, to wipe off that false Imputation upon our Laws, as if they were the Fruit or Effect of a Conquest, or carried in them the Badge of Servitude to the Will of the Conqueror, which Notion some ignorant and prejudiced Persons have entertain'd; I shall rip up, and lay open this whole Business from the Bottom, and to that End enquire into the following Particulars, viz.

1. Of the Thing called Conquest, what it is, when attained, and the Rights thereof.

2. Of the several Kinds of Conquest, and their Effects, as to the Alteration of Laws by the Victor.

3. How the English Laws stood at the Entry of King William the First.

4. By what Title he entred, and whether by such a Right of Conquest as did, or could, alter the English Laws.

5. Whether De Facto there was any Alteration of the said Laws, and by what Means after his coming in.

First, Touching the first of these, viz. Conquest, what it is, when attain'd, and the Rights thereof. It is true, That it seems to be admitted as a kind of Law among all Nations, That in Case of a Solemn War between Supream Princes, the Conqueror acquires a Right of Dominion, as well as a Property over the Things and Persons that are fully conquered; and the Reasons assign'd are Principally these, viz.

1st. Because both Parties have apealed to the highest Tribunal that can be, viz. The Trial by War, wherein the great Judge and Sovereign of the World, The Lord of Hosts, seems in a more especial Manner than in other Cases to decide the Controversy. 2dly. Because unless this should be a final Decision, Mankind would be destroy'd by endless Broils, Wars and Contentions; therefore, for the Preservation of Mankind, this great Decision ought to be final, and the conquer'd ought to acquiesce in it. 3dly. Because if this should not be admitted, and be by, as it were, the tacit Consent of Mankind accounted a lawful Acquisition, there would not be any Security or Peace under any Government: For by the various Revolutions of Dominion acquired by this Means, have been, and are to this Day the Successions of Kingdoms and States preserved. What was once the Romans, was before that the Graecians, and before them the Persians, and before the Persians, the Assyrians; and if this just Victory were not allowed to be a firm Acquest of Dominion, the present Possessors would be still obnoxious to the Claim of the former Proprietors, and so they would be in a restless State of Doubts, Difficulties and Changes upon the Pretention of former Claims: Therefore, to cut off this Instability and Unsettledness in Dominion and Property, it would seem that the common Consent of all Nations has tacitly submitted, that Acquisition by Right of Conquest, in a Solemn War between Persons not Subjects of each other by Bonds of Allegiance or Fidelity, should be allowed as one of the lawful Titles of acquiring Dominion over the Persons, Places and Things so conquer'd.

But whatever be the real Truth or Justice of this Position, yet we are much at a Loss touching the Things in Hypothesi, viz. Whether this be the Effect of every Kind of Conquest? Whether the War be Just or Unjust? What are the Requisites to the Constituting of a just War? Who are the Persons that may acquire? And what are the Solemnities requisite for that Acquest? But above all, the greatest Difficulty is, when there shall be said, Such a Victory as acquires this Right? Indeed, if there be a total Deletion of every Person of the Opposing Party or Country, then the Victory is compleat, because none remains to call it in Question. But suppose they are beaten in one Battle, may they not rally again? Or if the greater Part be subdued, may not the lesser keep their Ground? Or if they do not at the present, may they not in the next Age regain their Liberty? Or if they be quiet for a Time, may they not as they have Opportunity, renew their Pretentions? And altho' the Victor, by his Power, be able to quell and suppress them, yet he is beholden to his Sword for it, and the Right that he got by his Victory before, would not be sufficient without a Power and Force to establish and secure him against new Troubles. And on the other Side, if those few subdu'd Persons can by Force regain what they once had a Pretence to, a former Victory will be but a weak Defence; and if it would, they would have the like Pretence to a Claim of Acquest by Victory over him, as he had over them.

It seems therefore a difficult Thing to determine in what indivisible Moment this Victory is so compleat, that Jure Belli the Acquest of Dominion is fully gotten, and therefore Victors use to secure themselves against Disputes of that Kind, and as it were to under-pin their Acquest Jure Belli, that they might not be lost by the same Means, whereby they were gained by the Continuation of eternal Forces of Standing Armies, Castles, Garrisons, Munitions, and other Acts of Power and Force, so as thereby to over-bear and prevent an ordinary Possibility of the Prevailing of the conquered or subdued People, against the Conqueror or Victor. He that lays the Weight of his Title upon Victory or Conquest, rarely rests in it as a compleat Conquest, till he has added to it somewhat of Consent or Faith of the conquered, submitting voluntarily to him, and then, and not till then, he thinks his Title secure, and his Conquest compleat: And indeed, he has no Reason to think his Title can be otherwise secure; for where the Title is meerly Force or Power, his Title will fail, if the conquered can with like Force or Power over-match his, and to regain their former Interest or Dominion.

Now this Consent is of Two Kinds, either Express'd, or Imply'd. An express Consent is, when after a Victory the Party conquered do expresly submit themselves to the Victors, either simply or absolutely, by Dedition, yielding themselves, giving him their Faith and their Allegiance; or else under certain Pacts, Conventions, Agreements, or Capitulations, as when the subdued Party, either by themselves, or by Substitutes, or Delegates by them chosen, do yield their Faith and their Allegiance to the Victor upon certain Pacts or Agreements between them; as for holding or continuing their Religion, their Laws, their Form of Civil Administration, &c.

And thus, tho' Force were perhaps the Occasion of this Consent, yet in Truth 'tis Consent only that is the true proximate and fix'd Foundation of the Victor's Right; which now no longer rests barely upon external Force, but upon the express Consent and Pact of the subdu'd People, and consequently this Pact or Convention is that which is to be the immediate Foundation of that Dominion; and upon a diligent Observation of Most Acquests gotten by Conquest, or so called, we shall find this to be the Conclusion of almost all Victories, they end in Deditions and Capitulations, and Faith given to the Conqueror, whereby oftentimes the former Laws, Privileges, and Possessions are confirmed to the Subdued, without which the Victors seldom continue long or quiet in their New Acquests, without extream Expence, Force, Severity and Hazard.

An implied Consent is, when the Subdued do continue for a long Time quiet and peaceable under the Government of the Victor, accepting his Government, submitting to his Laws, taking upon them the Offices and Employments under him, and obeying and owning him as their Governor, without opposing him, or claiming their former Right. This seems to be a tacit Acceptance of, and Assent to him; and tho' this is gradual, and possibly no determinate Time is stinted, wherein a Man can say, this Year, or this Month, or this Day, such a tacit Consent was compleated and concluded: For Circumstances may make great Variations in the Sufficiency of the Evidence of such an Assent; yet by a long and quiet Tract of peaceable Submission to the Laws and Government of the Victor, Men may reasonably conjecture, that the conquered have relinquished their Purpose of regaining by Force what by Force they lost.

But still all this is intended of a lawful Conquest by a Foreign Prince or State, and not an Usurpation by a Subject, either upon his Prince or Fellow Subject; for several Ages and Discents do not purge the Unlawfulness of such an Usurpation.

Secondly. Concerning the several Kinds of Conquests, and their Effects, as to the Alteration of Laws by the Victor. There seems to be a double kind of Conquest, which induces a various Consideration touching the Change of Laws, viz. Victoria in Regem & Populum, & Victoria in Regem tantum. The Conquest over the People or Country, is when the War is denounced by a Prince or State Foreign, and no Subject, and when the Intention and Denunciation of the War is against the King and People or Country, and the Pretention of Title is by the Sword, or Jure Belli; such were most of the Conquests of ancient Monarchs, viz. The Assyrian, Persian, Graecian, and Roman Conquests; and in such Cases, the Acquisitions of the Victor were absolute and universal, he gain'd the Interest and Property of the very Soil of the Country subdued; which the Victor might, at his Pleasure, give, fell or arrent: He gain'd a Power of abolishing or changing their Laws and Customs, and of giving New, or of imposing the Law of the Victor's Country. But although this the Conqueror might do, yet a Change of the Laws of the conquered Country was rarely universally made, especially by the Romans: Who, though in their own particular Colonies planted in conquered Countries, they observed the Roman Law, which possibly might by Degrees, without any rigorous Imposition, gain and insinuate themselves into the conquered People, and so gradually obtain, and insensibly conform them, at least so many of them as were conterminous to the Colonies and Garrisons to the Roman Laws; yet they rarely made a rigorous and universal Change of the Laws of the conquered Country, unless they were such as were foreign and barbarous, or altogether inconsistent with the Victor's Government: But in other Things, they commonly indulged unto the conquered, the Laws and Religion of their Country upon a double Account, viz.

First. On Account of Humanity, thinking it a hard and oversevere Thing to impose presently upon the conquered a Change of their Customs, which long Use had made dear to them. And, 2dly. Upon the Account of Prudence; for the Romans being a wise and experienced People, found that those Indulgences made their Conquests the more easy, and their Enjoyments thereof the more firm, when as a rigorous Change of the Laws and Religion of the People would render them in a restless and unquiet Condition, and ready to lay hold of any Opportunity of Defection or Rebellion, to regain their ancient Laws and Religion, which ordinary People count most dear to them; (though at this Day the Indulgence of a Paganish Religion is not used to be allowed by any Christian Victor, as is observed in Calvin's Case in the Seventh Report;) and to give One Instance for all, it was upon this Account, That though the Romans had wholly subdued Syria and Palestina, yet they allow'd to the Inhabitants the Jews, &c. the Use of their Religion and Laws, so far forth as consisted with the Safety and Security of the Victor's Interest: And therefore, though they reserved to themselves the Cognizance of such Causes as concern'd themselves, their Officers or Revenues, and such Cases as might otherwise disturb the Security of their Empire, as Treasons, Insurrections, and the like; yet 'tis evident they indulged the People of the Jews, &c. to judge by their own Law, not only of some Criminal Proceedings, but even of Capital in some Cases, as appears by the History of the Gospels, and Acts of the Apostles.

But still this was but an Indulgence, and therefore was resumable by the Victor, unless there intervened any Capitulation between the Conqueror and the Conquered to the contrary. which was frequent, especially in those Cases, when it was not a compleat Conquest, but rather a Dedition upon Terms and Capituiations, agreed between the Conqueror and the Conquered; wherein usually the yielding Party secured to themselves, by the Articles of their Dedition, the Enjoyment of their Laws and Religion; and then by the Laws of Nature and of Nations, both which oblige in the Observation of Faith and Promises, those Terms and Capitulations, were to be observed. Again, 2dly. When after a full Conquest, the conquered People resumed so much Courage and Power as began to put them into a Capacity of regaining their former Laws and Liberties. This commonly was the Occasion of Terms and Capitulations between the Conquerors and Conquered. Again, 3dly. When by long Succession of Time, the Conquered had either been incorporated with the conquering People, whereby they had worn out the very Marks and Discriminations between the Conquerors and Conquered; and if they continued distinct, yet by a long Prescription, Usage and Custom, the Laws and Rights of the conquered People were in a Manner settled, and the long Permission of the Conquerors amounted to a tacite Concession or Capitulation, for the Enjoyment of their Laws and Liberties.

But of this more than enough is said, because it will appear in what follows, That William I never made any such Conquest of England.

Secondly, Therefore I come to the Second Kind of Conquest, viz. That which is only Victoria in Regem: And this is where the Conqueror either has a real Right to the Crown or chief Government of a Kingdom, or at least has, or makes some Pretence of Claim thereunto; and, in Pursuance of such Claim, raises War, and by his Forces obtains what he so pretends a Title to. Now this Kind of Conquest does only instate the Victor in those Rights of Government, which the conquered Prince, or that Prince to whom the Conqueror pretends a Right of Succession, had; whereby he becomes only a Successor Jure Belli, but not a Victor or Conqueror upon the People; and therefore has no more Right of altering their Laws, or taking away their Liberties or Possessions, than the conquered Prince, or the Prince to whom he pretends a Right of Succession, had; for the Intention, Scope and Effect of his Victory extends no further than the Succession, and does not at all affect the Rights of the People. The Conqueror is, as it were, the Plaintiff, and the conquered Prince is the Defendant, and the Claim is a Claim of Title to the Crown; and because each of them pretends a Right to the Sovereignty, and there is no other competent Trial of the Title between them, they put themselves upon the great Trial by Battle; wherein there is nothing in Question touching the Rights of the People, but only touching the Right of the Crown, and that being decided by the Victory, the Victor comes in as a Successor, and not Jure Victoriae, as in relation to the Peoples Rights; the most Sacred whereof are their Laws and Religion.

Indeed, those that do voluntarily assist the conquered Prince, commonly undergo the same Hazard with him, and do, as it were, put their Interest upon the Hazard and Issue of the same Trial, and therefore commonly fall under the same Severity with the conquered, at least de facto; because, perchance the Victor thinks he cannot be secure without it: But yet Usage, and indeed common Prudence, makes the Conquerors use great Moderation and Discrimination in relation to the Assistants of the conquered Prince; and to extend this Severity only to the eminent and busy Assistants of the Conquered, and not to the Gregarii, or such as either by Constraint or by Necessity were enforced to serve against him; and as to those also, on whom they exercise their Power, it has been rarely done Jure Belli aut Victoriae, but by a judiciary Proceeding, as in Cases of Treason, because now the great Title by Battle has pronounced for the Right of the Conqueror, and at best no Man must dare to say otherwise now, whatsoever Debility was in his Pretension or Claim. We shall see the Instances hereof in what follows.

Thirdly, As to the Third Point, How the Laws of England stood at the entry of King William I and it seems plain, that at the Time of his Entry into England, the Laws, commonly call'd, The Laws of Edward the Confessor, were then the standing Laws of the Kingdom. Hoveden tells us, in a Digression under his History of King Henry 2 that those Laws were originally put together by King Edgar, who was the Confessor's Grandfather, viz.

Verum tamen post mortem ipsius Regis Edgari usq; ad Coronationem Sancti Regis Edvardi quod-Tempus Continet Sexaginta & Septem Annos prece (vel pretio) Leges sopitae sunt & Jus praetermissae sed postquam Rex Edvardus in Regno fuit sublimatus Concilio Baronum Angliae Legem Annos Sexaginta & Septem Sopitam, excitavit & confirmavit, & ea lex sic confirmata vocata est Lex Sancti Edvardi, non quod ipse prius invenisset eam sed cum praetermissa fuisset & oblivioni penitus dedita a morte avi sui Regis Edgari qui primus inventor ejus fuisse dicitur usque ad sua Tempora, viz. Sexaginta & Septem Annos.

And the same Passage in totidem Verbis is in the History of Litchfield, cited in Sir Robert Twisden's Prologue to the Laws of King William I. But although possibly those Laws were collected by King Edgar, yet it is evident, by what is before said, they were augmented by the Confessor, by that Extract of Laws beforementioned, which he made out of that Threefold Law, that obtain'd in several Parts of England, viz. The Danish, the Mercian, and the West-Saxon Laws.

This Manual (as I may call it) of Laws, stiled, The Confessor's Laws, was but a finall Volume, and contains but few Heads, being rather a Scheme or Directory touching some Method to be observed in the Distribution of Justice, and some particular Proceedings relative thereunto, especially in Matters of Crime, as appears by the Laws themselves, which are now printed in Mr Lambart's Saxon Laws, p. 133. and other Places; yet the English were very jealous for them, no less or otherwise than they are at this Time for the Great Charter; insomuch, that they were never satisfied till the said Laws were reinforced and mingled for the most Part with the Coronation Oath of King William I and some of his Successors.

And this may serve shortly touching this Third Point, whereby we see that the Laws that obtain'd at the Time of the Entry of King William I were the English Laws, and principally those of Edward the Confessor.

Fourthly, The Fourth Particular is, The Pretensions of King William I to the Crown of England, and what kind of Conquest he made; and this will be best rendered and understood by producing the History of that Business, as it is delivered over to us by the ancient Historians that lived in Or near that Time: The Sum, or Totum whereof, is this.

King Edward the Confessor having no Children, nor like to have any, had Three Persons related to him, whom he principally favoured, viz. 1st. Edgar Aetheling, the Son of Edward, the Son of Edmond Ironside, Mat. Paris, Anno 1066. Edmundus aiutem latus serreum Rex naturalis de stirpe Regum genuit Edwardum & Edwardus genuit Edgarum cui dejure debebatur Regnum Anglorum. 2dly. Harold, the Son of Goodwin, Earl of Kent, the Confessor's Father-in-Law, he having married Earl Goodwin's Daughter: And 3dly, William Duke of Normandy, who was allied to the Confessor thus, viz. William was the Son of Robert, the Son of Richard Duke of Normandy, which Richard was Brother unto the Confessor's Mother. Vide Hoveden, sub initio Anni primi Willielmi primi.

There was likewise a great Familiarity, as well as this Alliance, between the Confessor and Duke William; for the Confessor had often made considerable Residencies in Normandy. And this gave a fair Expectation to Duke William of succeeding him in this Kingdom: And there was also, at least pretended, a Promise made him by the Confessor, That Duke William should succeed him in the Crown of England; and because Harold was in great Favour with the King, and of great Power in England, and therefore the likeliest Man by his Assistance to advance, or by his Opposition to hinder or temperate the Duke's Expectation, there was a Contract made between the Duke and Harold in Normandy in the Confessor's Lifetime, That Harold should, after the Confessor's Death, assist the Duke in obtaining the Crown of England. (Vide Brompton, Hoveden, &c.) Shortly after which the Confessor died, and then stepp'd up the Three Competitors to the Crown, viz.

1. Edgar Aetheling, who was indeed favoured by the Nobility, but being an Infant, was overborn by the Power of Harold, who thereupon began to set up for himself: Whereupon Edgar, with his Two Sisters, fled into Scotland; where he, and one of his Sisters, dying without Issue, Margaret, his other Sister and Heir, married Malcolm, King of Scots; from whence proceeded the Race of the Scottish Kings.

2. Harold, who having at first raised a Power under Pretence of supporting and preserving Duke William's Title to this Kingdom, and having by Force suppress'd Edgar, he thereupon claimed the Crown to himself; and pretending an Adoption or Bequest of the Kingdom upon him by the Confessor, he forgot his Promise made to Duke William, and usurped the Crown, which he held but the Space of 9 Months and 4 Days. Hoveden.

3. William, Duke of Normandy, who pretended a Promise of Succession by the Confessor, and a Capitulation or Stipulation by Harold for his Assistance; and had, it seems, so far interested the Pope in Favour of his Pretensions, that he pronounced for William against both the others.

Hereupon the Duke makes his Claim to the Crown of England, gathered a powerful Army, and came over, and upon the 14th of October, Anno 1067, gave Harold Battle, and overthrew him at that Place in Sussex, where William afterwards founded Battle-Abby, in Memory of that Victory; and then he took upon him the Government of the Kingdom, as King thereof, and upon Christmas following was solemnly crown'd at Westminster by the Archbishop of York; and he declared at his Coronation, That he claimed the Crown not Jure Belli, but Jure Successionis; and Brompton gives us this Account thereof, Cum nomen Tyranni exhorresceret & nomen legitimi principis induere vellet petiit consecrari; and accordingly, says the same Author, the Archbishop of York, in respect of some present incapacity in the Archbishop of Canterbury, Munus hoc adimplevit ipsumque Gulielmum Regem ad jura Ecclesiae Anglicanae tuenda & conservanda populumque suum recte regendum, & Leges rectas Statuendumi, Sacramento Solemniter adstrinxit; and thereupon he took the Homage of the Nobility.

This being the true, though short Account of the State of that Business, there necessarily follows from thence those plain and unquestionable Consequences,

First, That the Conquest of King William I was not a Conquest upon the Country or People, but only upon the King of it, in the Person of Harold, the Usurper; for William I came in upon a Pretence of Title of Succession to the Confessor; and the Prosecution and Success of the Battle he gave to Harold was to make good his Claim of Succession, and to remove Harold, as an unlawful Usurper upon his Right; which Right was now decided in his Favour, and determined by that great Trial by Battle.

Secondly, That he acquired in Consequence thereof no greater Right than what was in the Confessor, to whom he pretended a Right of Succession; and therefore could no more alter the Laws of the Kingdom upon the Pretence of Conquest, than the Confessor himself might, or than the Duke himself could have done, had he been the true and rightful Successor to the Crown, in Point of Descent from the Confessor; neither is it material, whether his Pretence were true or false, or whether, if true, it were available or not, to entitle him to the Crown; for whatsoever it was, it was sufficient to direct his Claim, and to qualify his Victory so, that the Jus Belli thereby acquired could be only Victoria in Regem, sed non in Populum, and put him only in the State, Capacity and Qualification of a Successor to the King, and not as Conqueror of the Kingdom.

Thirdly, And as this his antecedent Claim kept his Acquest within the Bounds of a Successor, and restrained him from the unlimited Bounds and Power of a Conqueror; so his subsequent Coronation, and the Oath by him taken, is a further unquestionable Demonstration, that he was restrain'd within the Bounds of a Successor, and not enlarged with the Latitude of a Victor; for at his Coronation he binds himself by a solemn Oath to preserve the Rights of the Church, and to govern according to the Laws, and not absolutely and unlimitedly according to the Will of a Conqueror.

Fourthly, That if there were any Doubt whether there might be such a Victory as might give a Pretension to him, of altering Laws, or governing as a Conqueror; yet to secure from that possible Fear, and to avoid it, he ends his Victory in a Capitulation; namely, he takes the ancient Oath of a King unto the People, and the People reciprocally giving or returning him that Assurance that Subjects ought to give their Prince, by performing their Homage to him as their King, declared by the Victory he had obtain'd over the Usurper, to be the Successor of the Confessor: And consequently, if there might be any Pretence of Conquest over the People's Rights, as well as over Harold's, yet the Capitulation or Stipulation removes the Claim or Pretence of a Conqueror, and enstates him in the regulated Capacity and State of a Successor. And upon all this it is evident, That King William I could not abrogate or alter the ancient Laws of the Kingdom, any more than if he had succeeded the Confessor as his lawful Heir, and had acquir'd the Crown by the peaceable Course of Descent, without any Sword drawn.

And thus much may suffice, to shew that King William I did not enter by such a Right of Conquest, as did or could alter the Laws of this Kingdom.

Therefore I come to the last Question I proposed to be considered, viz. Whether de Facto there was anything done by King William I after his Accession to the Crown, in Reference either to the Alteration or Confirmation of the Laws, and how and in what Manner the same was done: And this being a Narrative of Matters of Fact, I shall divide into those Two Inquiries, viz. 1st. What was done in Relation to the Lands and Possessions of the English: And 2dly, What was done in Relation to the Laws of the Kingdom in general; for both of these will be necessary to make up a clear Narrative touching the Alteration or Suspension, Confirmation or Execution of the Laws of this Kingdom by him.

First, Therefore touching the former, viz. What was done in Relation to the Lands and Possessions of the English. Those Two Things must be premised, viz. First, a Matter of Right, or Law; which is this, That in Case this had been a Conquest upon the Kingdom, it had been at the Pleasure of the Conqueror to have taken all the Lands of the Kingdom into his own Possession, to have put a Period to all former Titles, to have cancelled all former Grants, and to have given, as it were, the Date and Original to every Man's Claim, so as to have been no higher nor ancienter than such his Conquest, and to hold the same by a Title derived wholly from and under him. I do not say, that every absolute Conqueror of a Kingdom will do thus, but that he may if he will, and have Power to effect it.

Secondly, The Second Thing to be premised is, a Matter of Fact, which is this; That Duke William brought in with him a great Army of Foreigners, that would have expected a Reward of their Undertaking, and therefore were doubtless very craving and importunate for Gratifications to be made them by the Conqueror. Again, it is very probable, that of the English themselves, there were Persons of very various Conditions and Inclinations; some perchance did adhere to the Duke, and were assistant to him openly, or at least under-hand, towards the bringing him in; and those were sure to enjoy their Possessions privately and quietly when the Duke prevailed. Again, some did, without all question, adhere to Harold, and those in all Probability were severely dealt with, and dispossess'd of their Lands, unless they could make their Peace. Again, possibly there were others who assisted Harold, partly out of Fear and Compulsion; yet those, possibly, if they were of any Note or Eminence, fared little better than the rest. Again, there were some that probably stood Neuters, and medled not; and those, though they could not expect much Favour, yet they might in Justice expect to enjoy their own. Again, it must needs be supposed, That the Duke having so great an Army of Foreigners, so many ambitious and covetous Minds to be satisfied, so many to be rewarded in Point of Gratitude; and after so great a Concussion as always happens upon the Event of a Victory, it must needs, upon those and such like Accounts, be evident to any Man that considers Things of this Nature, that there were great Outrages and Oppressions comwitted by the Victor's Soldiers and their Officers, many false Accusations made against innocent Persons, great Disturbances and Evictions of Possessions, many right Owners being unjustly thrown out, and consequently many Occupations and Usurpations of other Men's Rights and Possessions, and a long while before those Things could be reduced to any quiet and regular Settlement.

These general Observations being premised, we will now see what de Facto was done in Relation to Men's Possessions, in Consequence of this Victory of the Duke.

First, It is certain that he took into his Hands all the Demesn Lands of the Crown which were belonging to Edward the Confessor at the Time of his Death, and avoided all the Dispositions and Grants thereof made by Harold, during his short Reign; and this might be one great End of his making that noble Survey in the fourth year of his Reign, called generally Doomsday-Read, in some Records, as Rot. Winton, &c. thereby to ascertain what were the Possessions of the Crown in the Time of the Confessor, and those he entirely resumed: And this is the Reason why in some of our old Books it is said, Ancient Demesn is that which was held by King William the Conqueror; and in others 'tis said, Ancient Demesn is that which was held by King Edward the Confessor, and both true in their Kind; and in this Respect, viz. That whatsoever appeared to be the Confessor's at the Time of his Death, was assumed by King William into his own Possession.

Secondly, It is also certain, That no Person simply, and quatenus an English Man, was dispossess'd of any of his Possessions, and consequently their Land was not pretended unto as acquired Jure Belli, which appears most plainly by the following Evidences, viz.

First, That very many of those Persons that were possessed of Lands in the Time of Edward the Confessor, and so returned upon the Book of Doomsday, retain'd the same unto them and their Descendants, and some of their Descendants retain the same Possessions to this Day, which could not have been, if presently Jure Belli ac Vicioriae universalis, the Lands of the English had been vested in the Conqueror. And again,

Secondly, We do find, that in all Times, even suddenly after the Conquest, the Charters of the ancient Saxon Kings were pleaded and allowed, and Titles made and created by them to Lands, Liberties, Franchises and Regalities, affirm'd and adjudg'd under William I. Yea, when that Exception has been offered, That by the Conquest those Charters had lost their Force, yet those Claims were allowed as in 7 E. 3. Fines, as mentioned by Mr Selden, in his Notes upon Eadmerus, which could not be, if there had been such a Conquest as had vested all Mens Rights in the Conqueror.

Thirdly, Many Recoveries were had shortly after this Conquest, as well by Heirs as Successors of the Seisin of their Predecessors before the Conquest. We shall take one or two Instances for all; namely, that famous Record apud Pinendon, by the Archbishop of Canterbury, in the Time of King William I of the Seisin and Title of his Predecessors before the Conquest: See the whole Process and Proceedings thereupon in the End of Mr Selden's Notes upon Eadmerus; and see Spelman's Glossary, Title Drenches. Upon these Instances, and much more that might be added, it is without Contradiction, That the Rights and Inheritances of the English qua Tales, were not abrogated or impeach'd by this Conquest, but continued notwithstanding the same; for, as is before observ'd, it was Jure Belli quoad Regem, sed non quoad Populum.

But to descend to some Particulars: The English Persons that the Conqueror had to deal with, were of Three Kinds, viz. First, Such as adhered to him aginst Harold the Usurper; and, without all Question, those continued the Possession of their Lands, and their Possessions were rather increased by him, than any way diminished. Secondly, Such as adhered to Harold, and opposed the Duke, and fought against him; and doubtless, as to those, the Duke after his Victory used his Power, and dispossess'd them of their Estates: Which Thing is usual upon all Conclusions and Events of this Kind, upon a double Reason; 1st, To secure himself against the Power of those that oppos'd him, and to weaken them in their Estates, that they should not afterwards be enabled to make Head against him. And, 2dly, To gratify those that assisted him, and to reward their Services in that Expedition; and to make them firm to his Interest, which was now twisted with their own: For it can't be imagined, but that the Conqueror was assisted with a great Company of Foreigners, some that he favour'd, some that had highly deserved for their Valour, some that were necessitous Soldiers of Fortune, and others that were either ambitious or covetous: All whose Desires, Deserts, or Expectations, the Conqueror had no other Means to satisfy, but by the Estates of such as had appeared open Enemies to him; and doubtless, many innocent Persons suffered in this Kind, under false Suggestions and Accusations, which occasioned great Exclamations by the Writers of those Times against the Violences and Oppressions which were used after this Victory. And, Thirdly, Such as stood Neuters, and meddled not on either Side during the Controversy: And doubtless, for some Time after this great Change, many of those suffered very much, and were hardly used in their Estates, especially such as were of the more eminent Sort.

Gervasius Tilburiensis, who wrote in the Time of Hen. 2. Libro I. Cap. Quid Murdrum & quare sic dictum, gives us a large Account of what he had traditionally learned touching this Matter, to this Effect, viz. "Post Regni Conquisitionem & Perduellium Subjectionem, &c. Nomine autem Successionis a temporibus subactae Gentis nihil sibi Vendicarent," &c. i. e. After the Conquest of the Kingdom, and Subjection of the Rebels, when the King himself and his great Men had surveyed their new Acquisitions; and strict Inquiry was made, who there were that, fighting against the King, had saved themselves by Flight; From these, and the Heirs of such as were slain in Battle, fighting against him, all Hopes of Succession, or of possessing their Estates, were lost; for the People being subdued, they held their Lives as a Favour, &c.

But Gervase, as he speaks so liberally in Relation to the Conquest, and the Subacta Gens, as he terms us; so it should seem, he was in great Measure mistaken in this Relation: For it is most plain, That those that were not engaged visibly in the Assistance of Harold, were not, according to the Rules of those Times, disabled to enjoy their Possessions, or make Title of Succession to their Ancestors, or transmit to their Posterity as formerly, tho' possibly some Oppressions might be used to particular Persons here and there to the contrary. And this appears by that excellent Monument of Antiquity, set down in Sir H. Spelman's Glossary, in the Title of Drenches or Drenges, which I shall here transcribe, viz.

Edwinus de Sharborne, Et quidam alii qui ejecti fuerunt & Terris suis abierunt ad conquestorem & dixerunt ei, quod nunquam ante conquestum, nec in conquestum, nec post, fuerunt contra Regem ipsum in Concilio, aut in auxilio sed tenuerunt se in pace, Et hoc parati sunt probare qualiter Rex vellet Ordinare, Per quod idem Rex facit Inquiri per totam Angliam si ita fuit, quod quidem probatum fuit, propter quod idem Rex praecepit ut omnes illi qui sic tenuerunt se in pace in forma praedicta quod ipsi rehaberent omnes Terras & Dominationes suas adeo integre & in pace ut unquam habuerent vel tenuerunt ante conquestum suum, Et quod ipsi in posterum vocarentur Drenges.

But it seems the Possessions of the Church were not under this Discrimination, for they being held not in Right of the Person, but of the Church, were not subject to any Confiscation by the Adherence of the Possessor to Harold the Usurper: And therefore, tho' it seems Stigand Archbishop of Canterbury, at the coming in of William I had been in some Opposition against him, which probably might be the true Cause why he perform'd not the Office of his Coronation, which of Right belonged to him, tho' some other Impediments were pretended, Vide Eadmerus in initio Libri, and might also possibly be the Reason why a considerable Part of his Possessions were granted to Odo Bishop of Bayonne, but were afterwards recovered by Lanfrank, his Successor, at Pinendon, in pleno Comitatu, ubi Rex praecepit totum Comitatum absque mora considere, & homines Comitatus omnes Francigenos & praecipue Anglos in antiquis Legibus & Consuetudinibus peritos, in unum convenire.

To this may be added those several Grants and Charters made by King William I mentioned in the History of Ely, and in Eadmerus, for restoring to Bishopricks and Abbies such Lands, or Goods, as had been taken away from them, viz.

Willielmus Dei gratia Rex Anglorum, Lanfranco Archiepiscopo Cantuar' & Galfrido Episcopo Constantiarum & Roberto Comiti de ou & Richardo filio Comitis Gilberti & Hugoni de Monteforti, suisque aliis proceribus Regni Angliae salutem. Summonete Vicecomites meos ex meo praecepto, & ex parte mea eis dicite ut reddant Episcopatibus meis & Abbatiis totum Dominium omnesque Dominicas terras quas de Domino Episcopatuum meorum, & Abbatiarum, Episcopi mei & Abbates eis vel lenitate timore vel cupiditate dederunt vel habere consenserunt vel ipsi violentia sua inde abstraxerunt, & quod hacteuus injuste possiderunt de Dominio Ecclesiarum mearum. Et nisi reddiderint sicut eos ex parte mea summonebitis, vos ipsos velint nolint, constringite reddere; Et quod si quilibet alius vel aliquis vestrum quibus hanc Justitiam imposui ejusdem querelae fuerit reddat similiter quod de Domino Episcopatuum vel Abbatiarum mearum habuit ne propter illud quod inde aliquis vestrum habebit, minus exerceat super meos Vicecomites vel alios, quicunque teneant Dominium Ecclesiarum mearum, quod Praecipio, &c.

Willielmus Rex Anglor' omnibus suis fidelibus suis & Vicecomitibus in quorum Vicecomitatibus Abbatia de Heli Terras habet salutem. Praecipio ut Abbatia pred. habeat Omnes consuetudines suas scilicet Saccham & Socham Toll & Team & Infanganetheof, Hamsocua, & Grithbrice Fithwite & Ferdwite infra Burgum & extra & omnes alias forisfacturas in terra sua super suos homines sicut habuit Die qua Rex Edwardus fuit vivus & mortuus, & sicut mea jussione dirationatae apud Keneteford per plures Scyras ante meos Barones, viz. Galfridum Constantientem Ep. & Baldewine Abbatem, &c. Teste Rogero Bigot.

Willielmus Rex Angl. Lanfranco Archiepo', & Rogero Comiti Moritoniae, & Galfrido Constantien Epo. salutem. Mando vobis & Praecipio ut iterum faciatis congregari omnes Scyras quae interfuerunt placito habito de Terris Ecclesia de Heli, antequam mea conjux in Normaniam novissime veniret, cum quibus etiam sint de Baronibus meis, qui competenter adesse poterint & praedicto placito interfuerint & qui terras ejusdem Ecclesiae tenent; Quibus in unum congregatis eligantur plures de illis Anglis qui sciunt quomodo Terrae jacebant praefatae Ecclesiae Die qua Rex Edwardus Obiit, & quod inde dixerint ididem jure jurando testentur; quo facto restituentur Ecclesiae terrae quae in Dominico suo erant die obitus Regis Edwardi; Exceptis his quas homines clamabant me sibi dedisse; illas vero Literis mihi significate quae sint, & qui eas tenent; Qui autem tenent Theinlandes quae proculdubio debent teneri de Ecclesia faciant concordiam cum Abbate quam Meliorem poterint, & si nolurunt terrae remaneant ad Ecclesiam, Hoc quoque detinentibus Socham & Saccam fiat, &c.

Willielmus Rex Anglorum, Lanfranco Archiepisc', & G. Episc. & R. Comiti M. salutem, &c. Defendite ne Remigius Episcopus novas consuetudines requirat infra Insulam de Heli, Nolo enim quod ibi habeat nisi illud quod Antecessor ejus habebat Tempore Regis Edwar.di Scilicet qua die ipse Rex mortuus est. Et si Remig. Episcopus inde Placitare voluerit placitet inde sicut fecisset tempore Regis Edw. & placitum istum sit in vestra praesentia; De custodia de Norguic Abbatem Simeonem quietum esse demittite; Sed ibi municionem suam conduci faciat & custodiri. Facite remanere placitum de Terris quas Calumniantur Willielmus de ou, & Radulphus filius Gualeranni, & Robertus Gernon; si inde placitare noluerint sicut inde placitassent temPore Regis Edwardi, & sicut iu eodem tempore Abbatia consuetudines suas habebat, Volo ut eas omnio faciatis habere sicut Abbas per Chartas sUas, & per Testes suos eas deplacitare poterit.

I might add many more Charters to the foregoing, and more especially those famous Charters in Spelman's Councils, Vol. 2. Fol. 14. & 165, whereby it appears, That King William I. Communi Concilio, & Concilio Archiepiscoporum, Episcoporum & Abbatum, & omnium Principum & Baronum Regni, instituted the Courts for holding Pleas of Ecclesiastick Causes, to be separate and distinct from those Courts that had Jurisdiction of Civil Causes. Sed de his plusquam fatis.

And thus I conclude the Point I first propounded, viz. How King William I after his Victory, dealt with the Possessions of the English, whereby it appears that there was no Pretence of an Universal Conquest, or that he was a Victor in Populum; neither did he claim the Title of English Lands upon that Account, but only made Use of his Victory thus far, to seize the Lands of such as had oppos'd him: Which is universal in all Cases of Victories, tho' without the Pretence of Conquest.

Secondly, Therefore I come to the Second general Question, viz. What was done in Relation to the Laws? It is very plain, that the King, after his Victory, did, as all wise Princes would have done, endeavour to make a stricter Union between England and Normandy; and in order thereunto, he endeavoured to bring in the French instead of the Saxon Language, then used in England: "Deliberavit" (says Holcot) "quomodo Linguam Saxonicam possit destruere, & Anglicam & Normanicam idiomate concordare & ideo ordinavit quod nullus in Curia Regis placitaret nisi in Lingua Gallica, &c." From whence arose the Practice of Pleading in our Courts of Law in the Norman or French Tongue, which Custom continued till the Statute of 36 E. 3. c. 15.

And as he thus endeavoured to make a Community in their Language, so possibly he might endeavour to make the like in their Laws, and to introduce the Norman Laws into England, or as many of 'em as he thought convenient; and it is very probable, that after the Victory, the Norman Nobility and Soldiers were scattered through the whole Kingdom, and mingled with the English, which might possibly introduce some of the Norman Laws and Customs insensibly into this Kingdom: And to that End the Conqueror did industriously mingle the English and Normans together, shuffling the Normans into English Possessions here, and putting the English into Possessions in Normandy, and making Marriages among them, especially between the Nobility of both Nations.

This gave the English a Suspicion, that they should suddenly have a Change of their Laws before they were aware of it. But it fell out much better: For first, there arising some Danger of a Defection of the English, countenanced by the Archbishop of York in the North, and Frederick, Abbot of St. Albans in the South; the King, by the Perswasions of Lanfrank, Archbishop of Canterbury, "Probonopacis apud Berkhamstead juravit super Animas reliquias Sancti Altani tactisque Sacrosanctis Evangelis (ministrante juramento Abbate Frederico) ut bonas & approbatas antiquas Regni Leges quas sancti & pii Angliae Reges ejus Antecessores, & maxime Rex Edvardus statuit inviolabiliter observaret; Et sic pacificati ad propria laeti recesserunt." Vide Mat. Paris, in Vita Frederici Abbatis Sancti Albani.

But altho' now, upon this Capitulation, the ancient English Laws were confirm'd, and namely, the Laws of St. Edward the Confessor; yet it appeared not what those Laws were: And therefore, in the Fourth Year of his Reign, we are told by Hoveden, in a Digression he makes in his History under the Reign of King Hen. 2 and also in the Chronicle of Lithfield.

Willielmus Rex, Anno quarto Regni sui Consilio Baronum suorum fecit Summonari per Universos Consulatos Angliae, Anglos Nobiles & Sapientes & sua Lege eruditos ut eorum jura & consuetudines ab ipsis audiret, Electis igitur de singulis totius Patriae Comitatibus viri duodecim, jurejurando confirmaverunt ut quoad possint recto tramite neque ad Dextram neque ad Sinistram partem divertentes Legum suarum consuetudinem & sancitam patef acerent. nihil praetermittentes nihil addentes, nihil praevaricando mutantes, &c.

And then sets down many of those ancient Laws approv'd and confirm'd by the King, and Communi Concilium,. wherein it appears, that he seems to be most pleased with those Laws that came under the Title of Lex Danica, as most consonant to the Norman Customs.

Quo auditu mox universi compatrioti qui Leges dixerint Tristes effecti, uno ministerio deprecati sunt quatenus permitteret Leges sibi proprias & consuetudines antiquas habere in quibus vi%erunt Patres, & ipsi in iis nati & nutriti sunt, quia durum Valde sibi foret suscipere Leges ignotas, & judicare de iis quae nesciebant; Rege vero ad flectendum ingrato existente, tandem eum persecuti sunt deprecantes quatenus pro Anima Regis Edvardi qui es sub diem suum eis concesserat Barones & Regnum & cujus orant Leges non aliorum extraneorum cogere quam sub Legibus perseverare patriis; Unde Consilio habito Praecatui Baronem tandem acquievit, &c.

Gervasius Tilburiensis, who lived near that Time, speaks shortly, and to the Purpose, thus: "Propositis Legibus Anglicanis secundum triplicitam earum Distinctionem, i.e. Merchenlage, Westsaxon-lage, & Dane-lage quasdam autem approbans illis transmarinas Legis Neustriae quas ad Regni Pacem tuendam efficasissime videbantur adjecit."

So that by this, there appears to have been a double Collection of Laws, viz.

First, The Laws of the Confessor, which were granted and confirmed by King William, and are also called the Laws of King William, which are transcribed in Mr Selden's Notes upon Eadmerus, Page 173. the Title whereof is thus, viz. "Hae sunt Leges & Consuetudines quas Willielmus Rex concessit universo populo Angliae post subactam Terram eadem sunt quas Edvardus Rex cognatus ejus observavit ante eum": And these seem to be the very same that Ingulfus mentions to have been brought from London, and placed by him in the Abbey of Crowland in the fifteenth year of the same King William, attuli eadem Vice mecum Londini in meum Monasterium Legum Volumen, &c.

Secondly, There were certain additional Laws at that Time establish'd, which Gervasius Tilburiensis calls, Leges Neustriae quae ifficacissimae vidibantur ad tuendam Regni Pacim; which seems to be included in those other Laws of King William transcribed in the same Notes upon Eadmerus, Pag. 189, 193, &c. which indeed were principally designed for the Establishment of King William in the Throne, and for the securing of the Peace of the Kingdom, especially between the English and Normans, as appears by these Instances, viz.

The Law de Murdro, or the Common Fine for a Norman or Frenchman slain, and the offender not discovered: The Law for the Oath of Allegiance to the King: The Introduction of the Trial by single Combat, which many Learned Men have thought was not in Use here in England before Will. 1. And the Law touching Knights Service, which Bracton, Lib. 2 supposes to be introduced by the Conqueror, viz.

Quod omnes Comites Milites & Servientes & universi liberi homines totius Regni habeant & teneant se semper bene in Armis & in Equis ut decet & quod sint semper prompti & bene parati ad Servitium suum integrum nobis explendum & peragendum cum semper Opus affuerit secundum quod nobis de Fœodo debent & Tenementis suis de Jure facere & sicut illis statuimus per Commune Concilium totius Regini praedicti, & illis dedimus & concessimus in Fœodo jure haereditario.

Wherein we may observe, that this Constitution seems to point at Two Things, viz. The assizing of Men for Arms, which was frequent under the Title De assidenda ad Arma, and is afterwards particularly enforc'd and rectified by the Statute of Winton, 13 Ed. I and next of Conventional Services reserved by Tenures upon Grants made out of the Crown or Knights Service, called in Latin, Forinsecum, or Regale Servitium.

And Note, That these Laws were not imposed ad Libitum Regis, but they were such as were settled Per Commune Concilium Regni, and possibly at that very Time when Twelve out of every County were return'd to ascertain the Confessor's Laws, as before is mentioned out of Hoveden, which appears to be as sufficient and effectual a Parliament as ever was held in England.

By all which it is apparent, First, That William I did not pretend, nor indeed could he pretend, notwithstanding this Nominal Conquest, to alter the Laws of this Kingdom without common Consent in Communi Concilio Regni, or in Parliament. And, Secondly, That if there could be any Pretence of any such Right, or if in that turbulent Time something of that Kind had happened; yet by all those solemn Capitulations, Oaths, and Concessions, that Pretence was wholly avoided, and the ancient Laws of the Kingdom settled, and were not to be altered, or added unto, at the Pleasure of the Conqueror, without Consent in Parliament.

In the Seventeenth Year of his Reign, (or as some say, the Fifteenth) he began that great Survey, recorded in Two Books, called, The Great Doomsday Book, and Little Doomsday Book, and finished it in the Twentieth year of his Reign, Anno Domini 1086, as appears by the learned Preface of Mr Selden to Eadmerus, and indeed by the Books themselves. The Original Record of which is still extant, remaining in the Custody of the Vice-Chamberlains of his Majesty's Exchequer. This Record contains a Survey of all the ancient Demesn Lands of the Kingdom, and contains in many Manors, not only the Tenants Names, with the Quantity of Lands and their Values, but likewise the Number and Quality of the Residents or Inhabitants, with divers Rights, Privileges, and Customs claimed by them; and being made and found by Verdict or Presentment of Juries in every Hundred or Division upon their Oaths, there was no receeding from, or avoiding what was written in this Record: And therefore as Gervasius Tilburiensis says, Page 41. "Ob hoc nos eundem Librum Judiciarium Nominamus; Non quod in eo de propositis aliquibus dubiis seratur sententia, sed quod ab eo sicut ab ultimo Die Judicii non licet ulla ratione descedere."

And thus much shall suffice touching the Fifth General Head; namely, of the Progress made after the Coming-in of King William, relating to the Laws of England, their Establishment, Settlement, and Alteration. If any one be minded to see what this Prince did in reference to Ecclesiasticks, let him consult Eadmerus, and the learned Notes of Mr. Selden upon it, especially Page 1 67, 168, &c. where he shall find how this King divided the Episcopal Consistory from the County Court, and how he restrain'd the Clergy and their Courts from exercising ecclesiastical Jurisdiction upon Tenants in Capite.

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