American Freedom's Feudal Beginning
American freedom is the offspring of the English Constitution as it existed up to the time of the emigration to America. English Historian G.M. Trevelyan states: "Our constitution was the child of Feudalism married to the Common Law." Which means that we can trace American freedom to both feudalism a European phenomenon, and Common Law which is uniquely English. In this article, we will explore that idea. 2014/09/09 User:BcatOne
American freedom is the offspring of the English Constitution as it existed up to the time of the emigration to America. English Historian G.M. Trevelyan states: "Our constitution was the child of Feudalism married to the Common Law." Which means that we can trace American freedom to both feudalism a European phenomenon, and Common Law which is uniquely English. In this article, we will explore that idea.
G.M. Trevelyan was an English historian at Cambridge University. Much of this article relies on his writings - primarily his History of England.
This article also relies on the writings of F. W. Maitland, a 19th century English jurist and historian of profound insights - in particular a collection of essays The Constitutional History of England.
Trevelyan writes (History of England, Book I, Chapter IV) that
- "Primitive societies, if they are ever to move on towards knowledge, wealth and ordered freedom, are obliged to travel in the first instance not along the path of democratic equality, but along the path of aristocracy, kingship and priesthood. The heathen clan or tribe may be relatively equalitarian, and poverty may be more or less equally distributed among its members, but it can never move forward in mass order towards higher civilization and the freedom of the individual. When men collectively are very poor some few must be made rich if there is to be any accumulation of wealth for civilized purposes. When men collectively are very ignorant, progress is only possible through the endowment of an educated few."
Trevelyan is actually making an historical observation. We can ponder the truth of his assumptions, but history provides no examples to the contrary.
In preparation for describing the role of feudalism as the transition from barbarism to individual liberty, Trevelyan also writes in the introduction to Book II:
- "Feudalism . . . implies a fixed and legal subordination of certain classes of society to certain others, to obtain civilized order at the expense of barbaric anarchy. Feudal society divided up the surplus product of the labour of the rural serf among Barons and knights, Bishops and Abbots. By stereotyping and regularizing the inequality of incomes derived from the land, it enabled wealth to accumulate in the hands of Lords and Prelates and so stimulated the rich man's demand for luxuries, whence grew the trade and the higher arts and crafts of the merchant cities. In this way the Dark Ages progressed into the Middle Ages, and barbarism grew into civilization, - but decidedly not along the path of liberty and equality." (emphasis added)
- " . . the true merit of mediaeval Christendom was that as compared to Islam and Brahmanism it was progressive, and that society moved constantly forward from 1100 to 1500 towards new things, - out of uniformity into variety; out of feudal cosmopolitanism into national monarchy; out of a hegemony of the priesthood into lay emancipation; out of the rule of the knight into the world of the craftsman, the capitalist and the yeoman. The spirit of mediaeval Europe was not static but dynamic. . . . We should think of the mediaeval era not as a fixed state but as a living process; . . . It is useless to seek in the Middle Ages for a golden age of piety, peace and brotherly love. It is an equal mistake to fall back into the error of the eighteenth Century, of despising the great epoch that led man back out of barbarism into the renewed light of civilization."
Trevelyan talks about the existence of the feudal village with its superstitious and ragged inhabitants living in primitive cabins in the midst of "the Europe of Dante and Chaucer; of the Cathedrals and Universities; of the English monarchy and Parliament; . . of the communities in Italy and Flanders, and of London 'the flower of cities all.' He observes that these coexisted and that the latter developed out of the former.
Feudalism was the characteristic institution of the Middle Ages (History of England Book I chapters VI - VIII & Book II Introduction). It replaced what might have been a society that enjoyed more personal and political freedom, but a society that was no military match for the Viking marauders that appeared in England in the 8th century. Feudalism was solidly in place in England around the end of the 11th century about the time of the First Crusade. It was a relationship between the king and the various class layers from Barons and Ecclesiastics to serfs (all who owed upward allegiance), and the land - the primary source of wealth - which was held "of the king". While it was motivated by the need to provide military capability capable of dealing with the Vikings, it was an also an administrative, judicial, and economic arrangement. Regarding any such issue, it was the duty of the king to consult his tenants-in-chief who held land directly from him and conversely, it was their duty to provide their counsel. While the will of the king was supreme, it was subject to strict limitations; and his Barons were accustomed to maintain their rights by force of arms. (That rights existed and were recognized under English feudalism is demonstrated by the fact that Magna Carta was the result of King John's usurpation of those rights.) Such mutual duties existed between each of the class layers down to the serf. It might be argued that the wealth of the feudal system was solely the product of the labor of the serf, but the noble class made its contributions by supplying defense, justice, and administration--all necessary to wealth - though the terms of the exchange were imposed rather than a voluntary negotiation. Feudalism represented an improvement in the stability of the lives of the peasant as well as the nobles and planted the seeds of a future, more durable freedom which, after an evolution of 5 centuries, produced the United States.
After the Romans were gone, and prior to the Danish invasion, the villages established by the Anglo-Saxon immigration lacked the military skills to defend themselves against an invading Danish marauder. Villages, churches and monasteries were stripped of wealth and life by raiding Viking bands. At first the Viking bands were only after adventure and plunder. But they became interested in conquering English territory to establish their own settlements as they realized that England was better land than their homes (wedged between fiord and mountain) and no match for their military skills. So the Danes threatened everything in England from the simple villages to the reign of the Anglo-Saxon kings. Feudalism got its start by solving that problem. It was an arrangement between Baron, knight, the Church, and the serf to bring protection, order, and rude justice to village life. It was far from liberty and equality, but it was a first step and was consistent with at least one of the basic reasons for a people to submit to government - security. The serf received a large measure of stability and safety. In exchange, the surplus product of serf labor was divided among Baron, knight, Bishop and Abbot, who were, relative to the serf, a leisure class. Wealth accumulated in their hands, which created a demand for luxuries. From this grew trade, arts, crafts, and a middle class of merchants and tradesmen and the cities that grew as the result.
F. W. Maitland describes the evolution to feudalism in England. It starts with a chief or king to whom are attached a body of warrior companions bound by ambition and glory. These "thegns" are inmates of the leader's household. In England, though, he also becomes a landowner. The king confers land on those of his followers that distinguish themselves in service to him - as did William the Conqueror after invading and conquering England in 1066. So the thegn becomes a landowner, holding land belonging to the king, by military service. Land possession was the basis for thegnage which carried with it an obligation for military service to the king and to supply soldiers. All land holders carried some degree of service obligation--vaguely in proportion to the amount of land held. So, there was a relationship in England between king, thegn, and the land that bound them together.
But what of the landless man? Interestingly, the law had no hold on him until King Athelstan (925-940) wrote down a law requiring that all men have lords, including every landless man. If he did not have one, one must be found for him. The rule was written so that every man had a lord who was bound to produce him if he was wanted. The landless man had some freedom and political rights, but he was now dependent and could not be said to be free. Being now bound to a lord, he also owed that lord a portion of his labor. As it developed, free-holding became the qualification for political rights. As it further developed, the lord answered for him at court and he lost his right to attend on his own behalf. Thus feudalism restricted the rights of the landless and make dependents of all.
Another element was necessary to feudalism - judicial and administrative decentralization. Before the Norman Conquest, the right to hold courts belonged to the king. Justice was the king's, but he could grant such authority to others, and in the time between Alfred the Great of Wessex and the Norman Conquest, it was granted extensively by some in exchange for military and political support; and no less so after the Conquest by King Stephen, William the Conqueror's grandson. It was granted to churches and monasteries and also to lay landowners. England was becoming a land of private courts in which the lord of the manor dispensed justice among those dependent on him who were also bound to help in making judgments. This, more than anything, set feudalism in place and was a characteristic of feudalism. Central power declined and local Barons and knights were growing strong.
Before the rise of the state under the Plantagenet kings, feudalism seems the only efficient way to protect a defenseless English population. Given that need, it was also an efficient economic system for supporting the various layers of social class - at the top of which (aside from the king) was the Barron or thegn whose job it was to defend his territory and those dependent on him. The farmer could work the land uninterrupted and war could be pursued. The farmer was left to work his land without being called up to fight every few months, and the thegn, knight, baron, and sometimes Bishop, were happy to do the fighting, forget the plough, and enjoy the status, wealth, and glory. They protected the manor and village from local and national trouble. For this division of labor, the serf gave up considerable freedom and all the surplus product of his labor. Equality was a victim of feudalism as well as much of liberty. Day-to-day feudal life was much harder on the small landowning free man and the villein (serf) than the warrior lord who lived in leisure by comparison. But it resulted in order, security, and a set of recognized rights for the peasant. And it should be acknowledged that there was a large difference in risk to life and limb that was absorbed by this 'leisure class'. The peasant lived in greater security. Nonetheless, as time went by, freedom ultimately proved to have more value than security. The peasant learned to fight, various events (notably the plague) reduced the supply of labor, raising its economic value. These things provided the laboring class with greater power and they began to chafe under feudalism's restrictions.
Feudalism meant local rule. While the local lord owed allegiance to the king, the king lacked the means to control local society. The king could maintain control over the lords for purposes of national defense, but little else. For local purposes, they granted rights of justice and administration since they had not the mechanisms or institutions to contain them centrally - though in the 12th century Henry II changed that. This arrangement was forced by the expansion of territory controlled by the English kings from the more manageable Wessex of Alfred's day to include most of England. England had not developed the means to rule such a territory except by local strong men at the local level. This dispersal of courts and justice to the local lords, at the expense of central control, is a large part of the definition of feudalism.
The Viking invasion of England preceded and set the stage for the development of feudalism by exposing the inability of English church and farming villages to defend themselves. Vikings were an interesting mix. They were a free people within their own society and they had a well developed moral code that revered loyalty and honesty - loyalty to king and clan and honesty in word and action. They were also murdering thieves for whom adventuring and unprovoked barbaric marauding through England and Europe was considered an honorable profession.
The Viking raids on England started in the 8th century. The first victims were the churches and monasteries that lay near the coast. They were unprotected, they had wealth, and they were easy pickings for the Vikings, who discovered that there was no sea power to protect the British Islands. They were there for the taking. The Anglo-Saxon inhabitants were inland farmers - not sailors or warriors; whereas the fist Vikings, sailing out of their fiords which cut into chasms of high mountains and which were their only road to the world, were at home at sea. Seemingly unopposed, war and plunder became the chief industry of the Scandinavians. At first it was only for adventure and plunder, but it eventually turned to immigration and settling the land. The English fields were more fertile than the fields wedged between rock and water of the fiords back home. Ironically, they were fighting to become English farmers. But they were also and always traders. They built fortified towns and markets. They were an energetic mixture of farmer, sea-faring barbarian and pirate, and merchant trader ready to act as fit the circumstances or advantages of the moment, and they ranged, raided, and traded through Europe. They were knowledgeable and cosmopolitan compared to the Saxon peasantry they preyed upon in England.
An interesting aside is that the Danish and Norse Vikings, who raided on the east and southern coasts of England, established two Danelaws (territories ruled by Danish law) - a large one encompassing much of eastern England, and a smaller one in France that was named Normandy after them - from whence, 200 years later, William the Conqueror invaded and took control of England. William's intent was to claim the English crown and was not on a mission of freedom, but the effect was to set England on its path to a highly developed concept of freedom that eventually spun off the United States.
Prior to the coming of the Danes, there was little law. Though earlier English history likely had law such as was brought by the Romans and clergy at the time of the Viking invasion, life in the villages was probably ruled by custom. Alfred, in addition to developing a military capability, set up a system of administration that worked through shires and shire officials. These developed into shire courts, but there were no professional lawyers. Law in the shire was heavily dependent on local custom. Law common to all England - the Common Law - was yet to be developed by the Plantagenet Kings - still a 150 years in the future. The Danes had set up boroughs in the Danelaw. When Alfred's son Edward and daughter Ethelfleda conquered the Danelaw, they set up shires primarily based on the Danish borough centers - many of which were cities. These then also developed into merchant centers.
The Danes brought law. It too had custom behind it (Anglo-Saxon and Danish customs had much in common having come from common stock), but it had more structure. What developed was a mixture of custom and Danish law. Danish towns in England usually had 12 "law men" that served as principle officers. They also employed committees of freemen to attend court - perhaps a forerunner of juries in England and representation. Anglo-Danish law was guided by three influences. "Weregild" called for a payment of money for a wrong as a substitute for blood feud - even in the case of murder. Secondly, Church doctrine made sin of wrongdoing. Thirdly, treason to king or local lord and cowardly flight in the face of battle or danger was dishonorable and punishable.
The Rise of the English Warrior Class
It was for Alfred the Great of Wessex in southwest England to finally bring the Viking up short. That was not accomplished by an army of farmers with shields and spears fighting large numbers of Vikings, experienced in combat, armed with battle axe, bow, sword and shield, wearing mail shirts. Alfred had to develop a professional warrior class that could match the Viking. This was a major advance toward feudalism. Defense came first. Law came close behind it. But feudalism, though a system of law and land tenure, depended on an aristocracy in arms. Later, the peasant armed with that most lethal weapon, the long bow, would deal a blow to the feudal system.
And another interesting thing happened. Alfred had contained the Danelaw - not eliminated it - which was populated by both Anglo-Saxons and former Danish Vikings who now occupied eastern England as farmers with families. In the face of continued Viking raids, the Anglo-Saxons looked to Alfred as their champion and protector. But increasingly, even though as kin to the raiders they were not threatened, so did the former Vikings - particularly those who had accepted Christianity - now established on the land and seeing their interests more aligned with the English. Two generations hence, under the leadership of Alfred's descendants, the English were more sophisticated politically and militarily and completed the reconquest of the Danelaw and it was absorbed into Wessex.
It is also interesting to note that, in the Danelaw, there were no slaves and many freemen - which was not the case in Alfred's Wessex. There were a few slaves in Wessex, and a peasant, though not a slave, was not free. Personal and political freedoms for the peasant in those days are difficult to discover. "Free man" did not seem to mean a well defined set of personal and political freedoms - though it is likely that such were conferred on men considered to be free. The term free seems to have referred to the ownership of land. If one owned land, one was "free". A landless person might (or might not) enjoy some freedoms in today's sense, but was not considered "free". Land was the source of wealth and the landowner was seen has having a stake in society, but not the landless. In fact, until the late 10th Century, the law referred only to the "free" and had no hold on the landless - another problem the feudal system sought to fix. This is a hard concept to grasp today
Feudalism was a Europe-wide development. A person familiar with a feudal village in England would have found much the same in France or Germany in the early 11th century and the same system of land tenure and decentralized military and courts. So, it is interesting that England began to develop its unique national characteristics as the result of French invasion. The Norman Conquest in 1066 set it on the road to its own laws and institutions. It was one of history's points of departure. It gave England a line of kings more vigorous than any in Europe. In contrast to continental Europe where feudalism was solidifying, they used feudalism to establish national unity. They built a durable and centralized administration that remained in touch with local England through what later developed into the English Parliament and they evolved a system of native law that was common across England and capable of protecting subjugated English against local oppression at a time when standards of justice were thin and violable. The Norman kings developed the English Common Law, juries, and representative assemblies. In addition to providing protective law, they encouraged, even required, the village yeoman and villein to maintain skill with the long bow. The reason was to create a supply of fighting men that the king did not have to keep in his pay. But an additional effect was to give the commoner a military advantage over the mounted knight - though he never used it against his countrymen in any civil war motivated by class differences. Such a thing never occurred in England in large part because of Henry II and his Common Law.
These things were done, not in the spirit of expanding the rights of people, but to solidify royal power at the expense of dispersed local rule in which the villein was half slave - bound to the land of his lord and subject to his justice. It also provided a source of military strength. These changes and others brought by the Plantagenet kings (the principle of primogeniture for example - History of England page 145) are the reason why class hatred never gained a foothold in England as it did in France. England had its civil wars, but they were never caused by class differences or privilege. It seems counterintuitive that strengthening the central power of the monarch at the expense of local power would favor the commoner. But the kind of local power that was being replaced was a despotic power in that the commoner had no right to representation and was bound without choice to the lord of the manor. But also, these local courts of the Shire and Hundred were a variety of Anglo-Danish custom and tradition that could not have had sufficient unity of substance or training in legal thinking, or sufficient power to take jurisdiction from the feudal and ecclesiastic courts of the great nobles and prelates. The policies of the Plantagenet kings helped by some unintended effects as well as unforeseen events (the plague) gradually raised the lower and middle classes who slowly gained in economic and political freedom. The absence of such developments on the continent culminated in the bloody outbreak of class hatred that was the French Revolution, and France never fully recovered from it.
Originator of English Common Law
Between England's most able monarchs there reigned some of England's worst, which sometimes worked to the betterment of English institutions by inspiring reform. William the Conqueror's grandson Stephen reigned between the 1st and 2nd Henrys from 1135 to 1154. Stephen and his rival for succession, Matilda (wife of Count Geoffrey Plantagenet of Anjou and mother of Henry II) raised armies by granting rights of the crown to their supporters. The most influential of these were brutal people that kept their armies on the plunder of villages and depopulating large districts. They confiscated wealth and imprisoned those they took from. The rivalry ended with the agreement that Stephen would wear the crown, but Matilda's son Henry would succeed him. After 19 years of Stephen all of England needed and was ready to accept the reforms of Henry II.
Henry Plantagenet, Count of Anjou was one of England's most consequential monarchs. He took England out of anarchy and feudal misrule and left her with a judicial and administrative system capable of withstanding his own sons Richard and John. Henry II established that government could provide a legitimate beneficial role, beyond military protection, as a protector of rights through constitutional reform. The institutions he put in place inspired Magna Charta as a reaction to John's misrule.
Henry was a warrior trained in law and skilled in administration. He ruled all of western France as well as England. His strength put an end to English Baronial revolt. He left England in the hands of his son Richard. While he was a popular personality, the best thing Richard did for England was to stay away in the Crusades for most of the rest of his life and leave England in the abler hands of his ministers. John succeeded Richard and accomplished one of the most important feats in furthering the cause of individual freedom. His clumsy heavy handed grabs for power and revenue inspired his barons to revolt and present him with Magna Charta.
The greatest gift of Henry II to England and its future offspring states was legal reform that came to be known as Common Law. "Common" in that it was native to England and applied to all English subjects. These reforms gave England a distinctive form of legal thought that became characteristic of states that descended from England. It's most precocious offspring was its American colonies and ultimately the United States. The power enjoyed by the King's courts and their circuit courts brought the King's law to the shire.
Henry II was educated in law and was able to pick the right men for royal judges. He picked both from his clergy and from his feudal warrior class. These men and their successors evolved Common Law using the procedure of the King's courts. And they carried it to the lower courts throughout England, instructing locals and enforcing its use. Common Law was a mixture of Roman law, Canon Law of the Church, feudal custom, and Anglo-Danish custom. It grew into a native English law through the influence of English Barons who were suspicious of foreign legal influence and of a too-powerful king. Common Law became a set of case precedents of the royal courts and influenced by English nobles.
To case law, the Plantagenet kings added royal decrees written in an 'assize' or session of notable judges and legal scholars. These had the effect of creating new legal remedies and new ways to litigate. These typically brought an increasing number of case types into the royals courts at the expense of the feudal and Church courts. Cases regarding title to land was a notable example. Trial by jury was the result of an Assize. Prior to that, determination of guilt or innocence was often a primitive, superstitious, or barbaric method.
Henry II's Assize of Arms of 1181 is worth singling out. It was not a legal remedy. It illustrates the trust that Henry had in the English population and a reason why England became unique relative to the rest of Europe. Henry did not keep a standing army. The Assize of Arms decreed that Englishmen of every rank be armed - down to the commoner. And it detailed the kind of arms and skills to be kept ready in the event of military need. This was, in effect, a requirement for a national reserve that could be used in time of war vs. a compulsory peacetime army - a very liberal principle. This was very non-feudal and no other feudal state (including France and Germany) had any similar trust in their people. Nor did they have a royal legal system designed in part to protect the commoner. Consequently they suffered through periods of anarchy that did not touch England.
Originator of English Common Law
Henry II's sons were a different story.
Richard, the Lion Hearted was popular in England, but he was more interested in the Crusades than in ruling England - which may have been fortunate. He left Hubert Walter in charge as his Chief Officer of the Crown. Walter continued Henry IIs intelligent trusting of the middle class. In particular, he bought a lot of support by chartering some of the larger towns such as London, which conveyed the privilege of self-government through elected officials. He also employed the knights-turned-farmers in county administration and peace keeping. Further, various royal administration functions were to be performed by those knights and others chosen by them - a primitive system of representation. This granting of autonomy and including in the administration of the counties and shires produced a rising middle class used to transacting the King's business and choosing representatives to assist. And that made English government very stable and robust
John succeeded Richard. According to history, John was simply treacherous and inept. But his treachery could not unravel what Henry and Walter had put in place.
- "In the reign of John the feudal resistance of the Barons to the exorbitant demands of the Crown began gradually to turn into constitutional resistance, embracing all other classes of freemen".(Trevelyan's History of England Book 2 Ch 2)
Trevelyan calls the English constitution the "child of Feudalism married to the Common Law." He notes that feudalism is the opposite of despotism though it can be tyrannical or anarchic at times. Feudalism was an "elaborate balance of defined rights and duties" owed by the King and the various holders of land to each other. The Barons and knights were protected from the King by feudal law and custom. This caused law to take on a life of its own and produce the concept of the rule of law - that there were a set of common sense laws that ruled all - including the king. This was the origin of the Constitutional and Parliamentary movement. Feudalism also provided the feudal class with one other essential ingredient - the military power to resist King John's overreaching. Though they may have been a little out of practice, they were the feudal warrior class and still had their armor and weapons in the closet and horses in the stable.
John violated feudal law and misused royal power to extort revenue from every English class which he spent in unsuccessful attempts to retain his French territories. The Barons reacted to John with the first great step on the constitutional road. They forced him to sign Magna Carta in the year 1215 - the spirit and even letter of which still lives today. "Magna Carta" was a common rallying phrase to the cause of independence in colonial America.
The Barons who forced John to sign Magna Carta were acting in their own class interests, primarily to stop the king from violating the feudal system and from collecting fees and taxes on their lands beyond feudal custom. They had no idea that the principles set down in the original document would later apply to every English citizen. They were assisted by other classes who had their share of benefits in the charter's clauses, but there was still no sense of an abstraction called "the people". No matter. It was a powerful document. There is a good detailed discussion of Magna Carta on Wikipedia [follow this link]). It is interesting to read through the clauses. Among its many clauses, the charter requires due process and that taxes only be levied by the "common council of our kingdom". It was no single or several clauses that establish the charter's significance - though a number of them are relevant even today. Its major significance was the establishment of law that stood above the monarch, and therefore above everyone. "A King had been brought to order . . . by the community of the land. under baronial leadership; . . A process had begun which was to end in putting the power of the Crown into the hands of the community at large." It established public and personal liberties. It made law and constitution supreme - the concept which later became the bedrock of the United States.
- Magna Carta is almost as interesting for what it does not do - which is to speak about any kind of democratic process. A general democratic electorate system was 700 years in the future. The somewhat astonishing (and reassuring) realization is that freedom can exist without a democratic process. The necessary ingredient for freedom is the rule of law. And if the constitution underpinning the rule of law is one of liberty, then it also a sufficient ingredient.
- Trevelyan, G.M. 1960 (1st published 1926). History of England. London. Longmans , Green and Co., Ltd.
- Frederic W. Maitland. 1909. The Constitutional History of England. Cambridge. Cambridge University Press
Notes for the writer
Chapter IV of Book 1 of Trevelyan (an important chapter): Pg 48 of Trevelyan discusses the necessity of a wealthy class as a prerequisite of moving from primitive society to democratic equality. The same arguments can be presented at any stage. And this can be coupled with Gilder's arguments.
And pg 49: Maitland: " . . feudalism means civilization, the separation of employment, the division of labour, the possibility of national defence(sic), the possibility of art, science, literature and learned leisure; the cathedral, the scriptorium, the library are as truly the work of feudalism as the baronial castle."
And: Trevelyan: " . . covering the years between that (Saxon) conquest and the coming of the Vikings, we must attempt the difficult task of appreciating the change of religion oas the first great step forward of the English people on the path of civilized life."
Christianity brought "the beginning, among the barbarians, of a political and legal civilization based on the arts of reading and writing in the practicable Latin alphabet"
- and so on . . .
The comparison of Anglo-Saxon worship of Odin and Thor with Christianity is instructive - but not very encouraging. Ponder why there was a great conversion to Christianity with its teaching of humility and charity and submission. There was the promise of a known afterlife - how to attain heaven and avoid hell.
top of pg 62: At the Synod of Whitby in 664, Oswy King of Northumbria gave judgment in favour of the claims of Rome as the inheritor of Peter's commission - rather than to the men of Iona. "The early adhesion of all the English Kingdoms to the Roman system of religion gave a great impetus to the movement towards racial unity, kingly and feudal power, systematic administration, legislation and taxation, and territorial as against tribal politics." The English were already moving from tribalism faster than the Celts.
pg 62: "A greater centralization and unity of system and purpose in ecclesiastical affairs throughout all the English Kingdoms led the way towards political unity under a single King. The administration of the Church became the model for the administration of the State. . . And since the Churchmen, being the only learned men, were the chief advisers of the Crown and its first Secretariate, the new Roman ideas passed all the more easily from the sphere of the church into the sphere of the State. Kingship gained new allies - men as skilled to serve with brain and pen, as the thegns with muscle and sword. Kinship gained also a new sanctity and a higher claim on the loyalty of the subject, through hallowing by the Church and by clerical theories of sovereignty drawn from recollections of the Roman law."
- So, this is a marriage of two estates of power. Rivalries would ensue. But the Synod of Whitby was a declaration by a King of a favored religion. Before then, kings were not jealous of religious influence.
Pg 94 Monasticism had been in decline. King Edgar (959-975) and successors rebuilt and re-endowed the fenland monasteries such as Ely and Peterborough, and enriched monks everywhere with territorial and judicial power over their neighbors. The fenland monasteries did much to drain and colonize the fen country. The grants of sac and soc, mostly judicial, were connected with the aid given to reclaiming and colonizing waste land by feudal lords, lay and clerical.
- This impulse paved the way for more extended claims imposed by the Norman Conquerors. In the end, the movement enforced celibacy on the priests, increased the international character of the Church under Papal leadership, led to the full development of the doctrine of transubstantiation, the importance attached to the worship of the Virgin Mary, and many other characteristic religious movements of the later Middle Age. The monastery was destined to be the principal breeding ground whence religious idea and practice emanated for centuries, and to hold a great place in the economic and social life of feudal England.
Maitland: The Constitutional History of England pg 156-7. talks about how in England, all land is held of the king even today "of course it is". He goes on to contrast it with feudal Germany in which land could be held under feudal law (Lehnrecht) or non feudal (Landrecht). But that in England all land was held under a feudal type law, but that it pertained not to a particular class of person holding a military fief, but to everyone - the agricultural class as well as the tenant by knight service. He then makes an interesting point: "Many things in our legal history are thus explained, for instance, the growth of primogeniture. In origin it belongs to a military system; slowly it spread from the military tenants to the socagers, it ceased to be the mark of a class, it became common law."
Maitland pg 161: Limitations of Feudalism
- It never becomes law that there is no political bond between me save the bond of tenure. William himself seems t ohave seen the danger. We read that in 1086 he come to Salisbury, 'and there came to him his witan and all the landowning men that were worth aught from over all England, whoseoever men they were, and all bowed themselves down to him and became his men, and swore oaths of fealty to him that they would be faithful to him against all other men.'
- He exacted this oath from every landholder - not just his tenants, but all possessors of land, no matter whose men they were; they were to be faithful to him against all other men, even against their lords. This became fundamental law:
- English law never recognizes that ay man is bound to fight for his lord. The sub-tenant who holds by military service is bound by his tenure to fight for the king: he is bound to follow his lord's banner, but only in the national army: he is in nowise bound to espouse his lord's quarrels, least of all his quarrels with the king. Private war never becomes legal ; it is a crime and breach of the peace. Whatever was actual practice in individual incidents, that was the law. This was the opposite of the law in France where the vassal must follow his immediate lord, even against the king, in any just quarrel.
- Though the military tenures supply the king with an army, it never becomes law that those who are not bound by tenure need not fight. The old national force, officered by the sheriffs, does not cease to exist. In 1181 under Henry II and his Assize of Arms; every man is bound to have arms suitable to his degree, down to the man who need but have bow and arrows.
- Taxation is not feudalized.
- The administration of justice is never completely feudalized.
- The Curia Regis, which is to become the commune concilium regni, never takes a feudal shape. The body of tenants in chief is too large, too heterogeneous for that. It is much in the king's power to summon shom he will, to take the advice of whom he will. The tradition of a council of witan is not lost.
Then Maitland makes the point that ideal feudalism - while closely realized in France - did not take hold in England, though some aspects - such as land ownership, were more pure in England