Resists
Hildebrand

Crimportant change in English law.

608

WILLIAM'S INDEPENDENCE OF ROME.

of Britain, assumed and exercised the imperial power; and in this he most evidently felt and saw how needful it was, according to his scheme of authority, to resist the efforts which Hildebrand was making for the general liberties of the Christian community. Had the liberty of election been restored to the English sees; had the power of the papal see in punishing simony and corruption, or in removing from the episcopate those unworthy to exercise its duties, been suffered to be exerted, William's autocracy would have been at an end.

The only direct innovation in the shape of law, affecting the rights of his subjects, is an ordinance imposing certain regulations as to the mode of deciding criminal cases by wager of battle. This has been considered, more especially by recent writers, as placing the Englishman and the Frenchman upon unequal terms. It would require a far deeper knowledge of the actual practice of the Anglo-Saxon law (I employ this term unwillingly, but for the purpose of preventing misapprehension) than we shall ever possess, to determine whether there was really any unfairness or inequality; but, at all events, if this right did belong, as a patrimonial law, to his Norman subjects, he could not well deprive them of it; and, at all events, it speedily became obsolete, and we cannot find even a trace of it beyond his reign.

28. I have already noticed the popular opinion

that William introduced into England the feudal law. We are told, by the most popular of our historians, that he found this system already established in France and in Normandy, and that feudality was the foundation both of the stability and the disorders of most of the medieval governments. This opinion involves the proposition that the "feudal system" was established on the Continent, and was not established in England. The observations which I have made on this subject on other occasions, will enable the reader to judge whether it be well founded or not.

the popular

view.

It is, however, somewhat remarkable that the Diculties in many who have adopted this theory almost implicitly, never stop to enquire how it happened that Britain, containing the same elements of population and jurisprudence as the rest of Western Christendom, and more particularly France and Germany, should not have possessed the same law. The Anglo-Saxons and the Lombards were close neighbours in their original seats in Germany; the Salic Franks and the Ripuarians were the borderers of the Jutes and Saxons; and if the feudal law arose, as Montesquieu says, and as Hume, no doubt, believed, in the forests of Germany, how did it happen that, in the occupation of England, it was left behind? Still more remarkable is it, that no one should have been startled at the total want of evidence. With respect to England, what William found, that he kept; and not only are

testifies to no

change.

we destitute of any evidence whatever to shew that he made any change in the tenure of land, but we have the strongest evidence to the conDomesday trary. Take Domesday, the great record, which was to establish the relations between the King and his landholders-those lands, conferred, as Hume tells us, with the reservation of stated services and payments, on the most considerable of his adventurers; and you will not find any one service or payment reserved, except the pecuniary payments, the Danegeld, which had been rendered in the Anglo-Saxon age. If more land was brought into cultivation, more was paid: if less, less. Domesday, which was to fix all the territorial rights of the crown, is wholly silent upon the subject.

Roman origin of military tenure.

29. That the rendering of a military service for lands held of the Sovereign, a usage derived from the Romans, existed in Britain long before the Conquest, I have elsewhere shewn. That this was retained by William, when the same lands passed to his soldiery or followers, is in the very nature of things. Whatever obligation the land was liable to "tempore Regis Edwardi," it was equally liable to "tempore Regis Willielmi," and in this manner alone can we explain a fact which otherwise might be perplexing, the total absence of any direct allusion to military tenure in the great record of Domesday. In support of the rights of the crown resulting from the tenure of land, Domesday shews nothing. It

INTRODUCED BY WILLIAM.

611

are

only establishes a negative, and that in a very remarkable manner. Hugh Lupus, we thereby informed, holds the earldom by the sword, as freely as the King holds by his crown. So also, without doubt, did, at this era, the several Lords Marchers. Matters altered entirely when we have overleaped the reign of Henry Plantagenet; but we are speaking of the rights or rather no rights of the respective parties before the generalizations of the law. The hereditary descent of the "Laen Lands" continued, as before the Conquest, a customary right of renewal to the son of his father's tenancy, which could not be enforced, but which, in the ordinary course of affairs, could not be denied.

William makes no alteration.

traditions

It is very certain that when our system of Later military tenures was fully established, in the ungrounded. reign of Henry III., it was a received opinion, popular in the nation, and an axiom in the courts of justice, that thirty-two thousand knights' fees had been created by the Conqueror; but at that period there was a wise officer of the Exchequer, one Alexander de Swereford, also Archdeacon of Salisbury, who, in the exercise of his duties, wished to find a certain account thereof; but, on seeking evidence, he could find none. Rolls or records of the age of the Conqueror, save and except that Domesday which we have, could he not discover. Nigel, Bishop of Ely, treasurer to

King Henry Beauclerc, he so deeply learned in all the science of the Exchequer, knew nothing of it, neither had Richard, the Bishop of London, he who had fully expounded the business of the Exchequer, stated anything concerning it; and, therefore, he comes to the conclusion that when Henry Fitz-Empress required, as we shall afterwards find, acknowledgments from all the tenants in capite of what was due, he was otherwise ignorant of the origin and amount of the rights of the crown; and whatever other inferences may be drawn from this very remarkable statement, we cannot refuse the conclusion No documen that there was no one written document testifying to the creation of military tenures; and that, when we find them afterwards established, they were a development of customary usages: some gradually reduced into regularity by the decisions of courts of justice, others by compromise between the subject and the crown.

tary proef on

military

tenures.

It was brought as an accusation against William, that he had much infringed upon the liberties of the Church, by exacting military service from the prelates; that is to say, adopting the terms of a subsequent period, converting frank almoigne into military tenure. He does appear to have acted arbitrarily; and, as we know from Domesday, to have allowed portions of the Church property to be taken away from its rightful owners; but, for portions of the Church lands, a military service was certainly