The History of the Common Law of England [32]
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