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The Norinan Conquest.
arose at times from this source, but the power of the ascendant race continued to grow. Every attempt at revolt against the yoke of the aristocratic Norman only seemed to fix it more firmly on the necks made to wear it. William, Duke of Normandy, and afterwards King of England, laid siege to the town of Alençon. The citizens from the walls taunted him with his bastard origin, and beat hides before him in token of the humble currier trade which had been followed by his mother's father. William gave way to one of his fits of passion, and ordered that the hands and feet of all the prisoners he had taken should be instantly cut off and slung into the town. Such, England, is the man who is soon to be thy master!
The success of the Conqueror as the invader of this country was the result of many causes. Edward the Confessor was the son of an Anglo-Saxon king by a Norman woman. He
from infancy to manhood among the Normans. All his attachments bound him to that people. On his accession to the English throne he filled his court and all places with men of that race. Bad blood was thus first called into action between the Saxon and the Norman. This country, moreover, was thus laid open all its parts to its future enemy. When the country was menaced by William, the old difficulty, want of unity, was still felt. Wessex, Mercia, and Northumbria were parts of England, but they were still in a great measure distinct parts. To bring them into combined action was not an easy matter. We should add, too, that at the time of the Conquest, England was singularly destitute of great men, and of places of strength. Harold, in that hour, was the only man capable of saving his country. The civil prudence and the military skill necessary to such an achievement were combined in him, and in him alone. The Normans in England were soon known among the natives by the name of the Castle-People,' the structures so named, which ever marked the settlement of the Norman, having been almost unknown among the Anglo-Saxons. When Harold fell, there was no man left to take his place. When the struggle at Hastings issued as it did, there were no fortresses, scarcely a walled town, to check the progress of the invader. Nor should it be forgotten that the 60,000 warriors marshalled by William on the field of Hastings were picked men, the flower of European chivalry, while the army under Harold, greatly inferior in numbers, in equipments, and in military experience, appears to have been brought together with much haste and disadvantage, chiefly from the nearer parts of Wessex. All things considered, we are inclined to think that had it been possible on that day that victory should have gone with the stout heart and the strong hand, it would have
been found on the side of the Saxon rather than on the side of the Norman. The battle-axes of the Saxons not only resisted the mailed men and mailed horses which came upon them like walls of iron, but brought them down like falling turrets to the earth by hundreds and by thousands; while in drawing the bow, the English were at Hastings what they remained for centuriesunrivalled. But the odds against them on that field were great. Gurth and Leofwin, the brothers of Harold, fell in the heat of the conflict; and when towards the sunset of that live long day the fatal arrow entered the brain of Harold, all was lost! Resistance became hopeless.
William had heard enough about England under Edward, and had seen enough of its spirit at Hastings, to satisfy him that the rule of a Norman king in this country must be the rule of a conqueror. He knew that such a yoke would be hated; he knew that the slaughter at Hastings must have made the thought of it more than ever hateful; and he furthermore knew that this feeling would be deepened and made permanent, by that entire transfer of the conquered territory into the hands of new owners which would alone satisfy the rapacity of his followers. He seemed disposed at times to do something towards conciliating the few Saxon nobles who survived, but his attempts were never sincere; and before his death, the last man of that order had ceased to exist. Even so early, the English in possession of land consisted of persons holding it in very small portions only, and mostly on hard and humiliating conditions. At length the right by inheritance was wholly taken away from them, and a holding during good behaviour was substituted in its stead.* When the crisis of conquest and spoliation had passed, the sheer selfishness of the new landholders would incline them to do something towards substituting the dominion of law for dominion by the sword; but some generations were to pass away before the Saxons, who were the only cultivators of the soil, and who formed the bulk of the people in the towns, began to give signs of growing rich again.
The effect of the Norman Conquest in its relation to the future of the English constitution and government, is the question in regard to this period of our history in which modern Englishmen are chiefly interested. It is on this question also that the writings of Sir Francis Palgrave are especially valuable, and on which they promise to be still more serviceable, should his life be spared to fill up the scheme which he has laid out for himself. The views furnished on this subject by our best known historians
* Dialogus de Scaccario, in Madox's Hist. Excheq.
Norman Ascendancy in England.
35 such as Henry, Hume, and Lingard-are meagre, and most unsatisfactory. We wish that our space would allow of our showing adequately what the most advanced state of our literature really is on this subject. We shall, however, endeavour to furnish such indications concerning it as our limits will admit.
The interval during which the great feature in English history consists in the subjection of the Saxons to the Normans extends over about a century and a half-that is, from the Conquest to the obtaining of the Great Charter from 'King John. The government contemplated by the Duke of Normandy and his followers, as that to be established in England, should their swords be successful, was, very naturally, the feudal-military government with which they had been familiar on the Continent. Feudalism had existed in all its essential elements among the Anglo-Saxons; ; but it was left to the Normans to give it more definiteness, more diffusion, and more potency. William ceded large territory to his nobles, but each of these great landholders remained a tenant under the Crown. What the vassals of these nobles were to their lords, their lords were to the king: Nor was this sufficient. In a great meeting at Salisbury, in 1086, the Conqueror, it is said, claimed a fealty of this nature from all the land holders of his dominions, from the tenants in chief and the sub-tenants alike.* There was a considerable stretch of prerogative in this proceeding, but its effect was, upon the whole, beneficial. It gave the sub-tenants, and the people in towns, a right of appeal to the Crown against many forms of local oppression; and, by degrees, it gave warrant to the Crown in granting privileges and charters to towns and cities, and thus favoured the growth of popular liberty. The measure introduced an element of divided allegiance, but its tendency was to moderate the exercises of power by bringing in one form of it as a check upon another.
At his coronation William promised to rule the people of England as the best of their kings had ruled them. Two years later he pledged himself in the most public and solemn manner to uphold the laws of Edward the Confessor. By the laws of Edward we must not understand some carefully digested code formally published by that monarch. The laws intended were mostly unwritten laws. They consisted mainly in the 'wise customs' which had been the growth of centuries, and to which the English, in the change which had now come over their condition, naturally looked back with much affection. But it was
Ordericus says the meeting was at Winchester, and that 60,000 persons were present. The Saxon Chronicle says—'his witan came to him, and all the tenants of the land that were of consequence over all England became the vassals of this man.' A.D. 1086.—Madox's Hist. Excheq., c. 1, 5, 6.
an error in the people to suppose that to preserve the laws of the past, would be to perpetuate their own condition in the past. They had to learn that the old laws in new hands might be to them in reality the old laws no longer.
It was not the wish even of the conquerors themselves that those laws should be wholly superseded. Even in the worst times they were upheld in their substance, especially in civil causes, and, with very limited exception, in criminal causes. The Hundred Courts and the County Courts remained as they had been, and justice as between man and man, and offences against the public peace, were dealt with much as in past times. It was, in many respects, greatly to the advantage of the Normans that this course should be taken. When the natives could no longer hope that they might some day meet their oppressors in the field, there were occasions on which they avenged themselves upon the wrong-doer by private onslaught. The result was a law, which declared that, on the discovery of the body of a murdered man, if the deceased could not be proved to have been an Englishman, it should be presumed that he was a Norman, and the men of the Hundred were bound to find the manslayer, or to pay the fine. This is a mere sample of the manner in which English law was made to be subservient to Norman rule. It was something, however, to have so much of those wise customs preserved. The free spirit in which they had originated might some day return to them. But for the present, a Norman
might kill an Englishman with impunity, if he could only say that he thought him a rebel. To the Saxon, the doubtful privilege was ceded of clearing himself by ordeal. But the Norman might clear himself by duel, or simply by his oath. The use of French in all our law courts down to the time of Edward III., is enough to indicate the sad inequality of the two races before the tribunals of the country. It is true that the officials being all Frenchmen, this may be said to have been a necessity, but that fact itself was a grievance, and did not prevent what followed from being such.
In one material respect the Anglo-Norman legislation soon became an improvement on that of the Anglo-Saxon. Lawyers of great erudition have been wont to speak of our trial by jury as an institution older than the Conquest.* But Sir Francis has shown that trial by jury, in our sense, was not known in England earlier than the reign of Henry the Second.t What was often described as trial by jury under the Saxon kings was, in fact, a Retention of Saxon Law- Trial by Jury.
* Coke, Spelman, Blackstone. + English Commonwealth, vol. i. c. 8.
37 trial by magistrates. The jurors
The jurors were witnesses, and nothing more; they did not deliver any joint, or even separate, verdict on the case. Each juror gave his evidence, and the whole of the evidence so contributed was designed to guide official persons in forming their judgment, and pronouncing sentence. The persons selected, accordingly, were always chosen as being persons supposed to know most of the case. But the jury so chosen was not to include persons whose nearness of kin was likely to bias their depositions. Jurors, too, might be challenged, for a lawful cause, either by the accused or the accuser. Even such an intervention of the jury principle, inasmuch as it made the evidence of guilt to depend very largely on the unbiassed testimony of neighbours and equals, was a great protection to the subject. Trial by a jury of witnesses had obtained in Normandy as well as in England before the Conquest; but much was gained when the function of the jurymen was so far raised that it rested with them to say whether the accused should be accounted as guilty, or not guilty. This, however, did not become law until the church had interposed to put an end to the trial by ordeal—that is, not until å hundred and fifty years after the Conquest.*
Before that time, indeed, individuals, as a matter of favour, and commonly of purchase, were allowed to submit their cause to the judgment of twelve or twenty-four men from their neighbourhood, and so to be exempt from the decision of the magistrate. Such cases, however, were rare, and were restricted, we may be sure, to wealthy Normans. But a principle was included in these instances which was to take root, and to become eminently fruitful. Trial by ordeal having ceased, some change became necessary. Our lawyers might have fallen back upon the civil law, which would have left the judgment both of law and evidence to the magistrate. But they took the onward course. They retained the usages which time and experience had sanctioned, and they changed jurors which could only give evidence, into jurors who might deliver the verdict. It is important, however, to remember, that trial by jury, in this sense, was restricted to courts acting under the king's writ. The usage did not extend to the court of the Hundred, or to the Court-leet. In these latter courts the witnesses continued to be called jurors, but they remained simply witnesses.
Very memorable were some of the results which followed imperceptibly from this practice of trial by jurors. The intention of the Conqueror in securing a registry of all persons and places
• Notæ ad Badmerum, edit. Selden, 204.