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I ^ - . ' ^ ■ ■ill
THE HISTORY
OP
ENGLISH LAW,
tenfton : C. J. CLAY ahd SONS.
CAUBBIDOE UNIVERSITY paESS WABEUOUHE, ATE MAJUA LAME.
STEVENS AND SONS, Ltd, 119 AXD laO. CHAMCBBT LANE.
•laa^M: sn. ABATLE HTUKT. Enp)i|: P. A. BBOTKHAUB. ■■■In: K- BEWOVE HALS.
THE HISTOEY
OF
^ENGLISH LA^
BEFORE THE TIME OF EDWARD I. . .
BY
Sm FREDERICK ^LLOCK/ Babt.. M.A.. LL.D.
or UMOui's m, a*nnn>-iT-uw,
aud
FREDERIC WILLIAM MAITLAND, LL.D.,
DOwvnia rBOrsasoB or tb> lavs or bnoland in ths uMrnutsmr or cAMBBmas, or umooui'b ihn, bakbibtbb-at-uw.
SECOND EDITION.
VOLUME, ly.
CAMBRIBGE:
AT THE UNIVERSITY PRESS.
1898
{AU RighU Ttserved.]
rsxm*
CmMkgt: rmisTBit BT I. uiD 0. r. out,
AT TBB OMITSBUTT PHaSB.
■ A
PREFACE TO THE SECJOND EDITION.
TN tbis edition the firat diapter, by Pro£ Hutland, is new. •^ In fi<x^ n., 0. it S 12, on 'Corporations and Choiohee' (fonneriy ' Fictitioas Persons '), and c iii § 8, on ' The Borough,' hare been recast There are no other imp(Hliant aIterati<»iB: bat we have to thank oar learned critics, and eepeoially Dr fironner of Beriin, for Tarions observations by which we have endeavoured to profit We have thought it convenient to note the paging of the 6rst edition in the margin.
F. P. F. W. M.
tC-S-S^
HARVARD COLLEGE LIBRARY
Contents, xi
nwnt between j.
The ttarony w.- — . .^.^,„.„ -«, ,
Duty of the military benant in
ttDUtts, Si83. Knight's service du » I ,
986. ScutagB between kiug and z H
for detbult of aemoo, 209, Scut - - L.
TsDure by eecuage, 272. The k -un t to E'.
in the number of knight's ftsosf i en i* v
MilitU^ cvinbiaed with other aerv 7. * VTH '.
*"4 ^bwgBget SV9. Tenure by 3 'J i
d!iMted hoaoure, 261.
S 4. SoijttmUy, pp. 382— S9a
Dflfimtiaa of aaijeanfy, S8S. Serjean^ and Bernoe, 283. Types of Hqnn^ owed fay Uie kiiig's touuita in obie^ S83. Setjeantiee due to nMM lonb, 986. Uilitwy ao^eantieB due to mesDe lords^ 886. EMenoe of Mcjeanfy, S87. Tlie 8fli;)eants in the army, S88. Secjeanty in Domee- d^Book,S8& Sojeaoty aod other tenune, fi9a
§ fi. Socage, pp. 281—296.
Socage^ 891. types of eooage, 891. Extension of socage, 883. Fee ftnn, S98. M*ftnitig of 'socage^' 882. Socage in contrast to military trnm^ 884. Socage as the neidiiary tesrai^ 894. Buigage, 886. Bur- gige and bonm^ custtHns, 89ft. One man and many tenons, 896.
§ 6. Homage and Fealty^ pp. 296 — 307.
Homage and fealty, 296. Legal and extra-l^al effecta of homage, 297. The ceremony of homage, 297. The oath of fealty, 298. Liegeance, 298. Vassalism in the Norman age, 300. Bracton on homage, 301. Homage and private war. 301. Sanctity of homage, 303. Homage and felony, 303. Feudal felony, 305. Homage, by whom done and received, 306. The lord's obligation, 306.
§ 7. RelUf and Pritner Seisin, pp. 307—318.
The incidents of tenure, 307. Heritable rights in land, 307. Re- liefs, 306. Rights of the lord on the tenant's death, 310. Prerogative rights of the Icing, 311. Earlier history of reUefs, 312. Relief and heriot, 3)2. Heritability of fees in the Norman age, 314. Mesne lords and heritable fees, 316. History of the heriot, 316. Relief on the lord's death, 317.
S 8. Wardship and Marriage, pp. 318—329.
Bracton's rules, 319. Wardship of female heirs, 320. Priority among Imda, 320. What tenures give wardship, 321. Prerogative wardship, 321. The lord's rights vendible, 322. Wardship and the serjeanties, 323. The law in Qlanvill, 323. Earlier law, 326. Norman law, 326. The Norman apology, 326. Origin of wardship and marriage, 327.
62
xu
OtmienU.
I 9. Itmlr^inu on Athmation, j^ 890—849.
Hktufiod UwnrkM, 3tfi. UadM af *Iiautiol^ SSQ. PnCmilMLrjr dte- tJBOlioiiik m. Otwirill saSL Ttw OrMt ChAftar. »8. Bnct<m, SSL l^l^Utian M to martnuun, SS3L AlJcuatiim uf Mijaairtkn, 3M. SpodaJ Uw for tlM ku^A IMiAxtU in chicif, 33A. Ortnith iff th« pfwngitiiii right, 330. i^ia rmptarta, 337. Dispiitfcl («ij{iii of the imroK&tiim rifht, 338. BaiDiiuu7 of U«r AfUnr th« l*h&rtfT, 330. Oldar Uw, 340. Anglo-Nnmuu) diirtin, 34(1. Di*cuMon nt tb4< chartans <UI- Ooodnikiu im to Uw of the Nonnui «(>, 343. TnuU fann of Blicn«tiaii« 343. Onwml ■ommwy, Mft. QitU hf Hut inni with hu court'* oooMnt, 348. AUimafciaa of wrigtutrimt 346. Law nf atumiinantf 347. Pnctke of AlUnatiag Hicno* rioB, 34fl^
I 10. AiJM, |ip. 94»— 3fll.
t>ttt^ iif oulinit tlu* liinl, 340.
9 U. fidUs/ aim/ FarfritHm, pp. 351—866.
Eflebwt, adl. Tbe luRfs ranadM* w^inrt » (UCuilting tomot, AdioD b lbs Idnf^ oanxi, 366. Dbta^ 333. Pmnwrftiy Id lurd'ii oourt« 3S4. Survey of Um nrinu ftw tuBm^ AM.
jl tS. f^if/iw rtnim, pp^ 3&e— 383.
FtMbold i«iHiN, SflOL TsefaDlod iMHiiBC<ir*ftwb(^'»?. VOUa. ■fi M tmtra and «• aAaMxm^ U& VilWn tooun : nnpretoetod fajr llw 1^^ ouuit, 300. Wut oT right Mxl want nt rwamij, 3aa Protaotioa bj naiwria] uourta, 361. Bridvioe of Its* 'Bztanta,' SOS. Attanfit to cUAm riUan toaum 302- Tba munrial ■nrnnKHOHit, 3ftt T^ taid IQvlMn, JS4. The Tii:ptaB, 3S4. VOUn awioii, 383. A typkBl cwa «/ viUiin airTMaii, 300. Waak work and boon <Ujm, 367. BlirAai Mid talUfi, MB. Bmmc* dT tUMo Iman. 9t^ Tb* trOl of tho bed, nu VUldnifi and Uboor, 370. Doowtatntj of nUotn Mrriev, 373. T«ato at TiUnn^c*, 37S. Moding htm *4 UMBorU] mtoiD, 376. TVmUbmI td rilkin man in prKtloa, 377. Hcritahls rigbia hi rObui <i— <i>a, 676. lTDit7artb«l«MmMtit.3til. AJiwiartwi of Wndn XmvtomM, 666. VIUnb tanuni and rilWn aUttii^ 3R1
I 13. Tk» AneinU Dtmrnmr, pp. 383—406.
Th* mdmx doaw md Mm nyal vUtaiv 666. InuMitta tba andnt dwnww^ 684. Onoa «MMnt ^tammk^ ahnjps mmAh BMOi, 3M. PMiAar lamni on lb* aMtet Iihibib, 30& Tha Uttb otH nf right, 386. Tba MwmuwmnmU 386. l\m In iii iiT UaaMit. 6». BiraetottV tbaory, 6861 Tbaurj «nd inetim.. 361. DiAnUia* vt *itmi- AaAlao, 363. SobMaaury and ■oo^o, 3M. LUar (baofy and fW^Mka, 6Ml Wbj ia a iiMeial traataMOl uf lb* anciMt dMBama nwwry I 367. Tba ktag iDd tba taoqaaa arttlawit, 386. Ra)r»| paataeiKin of wmpX l—iiTi. 40a OaMwiiiry ftaabnid, 401. No pla« fcr a tnov 1«4««b 404. Tba aootitinai, 606, Onahiikn, 406L
Oontenta. ziii
CHAFTEB II,
Thi Sknn axd OoirDinoire or Mbk, pp. 407 — 611.
Lmr of jienmal oonditaasi, 407. Status and estate, 408.
%\. The Satrk and Barmu, pp. 408—411. The banoage^ 40S. PriTOeges of the banuua, 408.
§ 2. n« KmghU, yp. 411—411 Kni^thood, 418.
%Z. The Uf^ree, pp. 412—482.
The nnfree, 41S. General idea tA aoifrge, 418. Belativity of serf- agB^ 41& The serf in relation to hia lord, 416. Rig^itkagneaB of the MBtt, 416L Saldom de tire and serfdom d€ faeto, 417. CoTMiant between lord and •«( 4ia The sof in relation to third peraona, 419. The ■atf^ property, 419. Diffloultiea ot Telative aerfiloni, 430. The aerf in lelatioii to the atate^ 4SX. How mea beocune aerfi^ 4SS. Servile Inrth, 4S8. IGxed maniages, 4SS. Inflnenoe of the place of lorth, 424. Tilleins by oonfesnoD, 4S4. Serfilom by prescription, 426. How serfdom ceases, 427. Manumission, 427. The A^edman, 428. Modes of enfranchisement, 429. Summary, 429. Retrospect Fusion of villeins and serfs, 430. The level- ling process, 431. The number of serfs, 431. Rise of villeins, 432.
§ 4. The Religious, pp. 433—438.
Civil death, 433. Growth of the idea of civil death, 433. Difficulties arising from civil death, 435. The monk as agent, 436. The abbatial monarchy, 437. Return to civil life, 437. Civil death as a development of the abbot's mund, 438.
§ 5. The Clergy, pp. 439—457.
Legal position of the ordained clerk, 439. The clerk under temporal law, 439. Exceptional rules applied to the clerk, 440. Benefit of deigy, 441. Trial in the courts of the church, 443. Punishment of felonious clerks, 444 What persons entitled to the privil^;e, 445. What (tiroes within the privil^e, 446. The Constitutions of Clareudon, 447. Henry II.'s scheme, 446. Henry's scheme and past history, 449. Henry's allegations, 449. Earlier law : the Conqueror's ordinance, 449. The Leget Henrid, 460. Precedents for the trial of clerks, 450. Sum- mary, 462. Henry's scheme and the Canon law, 464. The murderers of clerka, 466.
xnr
ConiaiU.
I 6. Atim», pp. 45a— 467.
TIm dM^oU oonuDoo U«, 4M. WUt> *» bUkwI 45a. tXaaUHtla oT th« alien, 45D. SatunUiutkm, MO, Law of avtinr timv, 401*. Orowth »r Um Iaw dimblu^ aliaiu, Ml. Tha king Ami Um kbn, 401. Tba Idnb of aUoiw, 404. TIm alioa mcrchanU, 4A4. Tb0 aliao «id Uw cnoiBwii Iftw, 4<M. Haa Um nHrdHBt * pacttliar iiUtui t 40ft. Um b» MftfaMt, 4«7.
I 7. 7%« J9im, pp 468 -479.
QlMnl idM of Uw J«w^ imulkm, 40ft. Tha Excbequar of Um Jtmu, 4t0L BcUUca «f tbe Jew to tb« Un^. 471. RaUtitm »t Um J«« la Um world at bise, 473 Iaw iMwnan Jvw ami Jaw, 474. InAiMOM of tfa« Jaw uiMm Bnfliab Uw, 47&.
I B. OwlloMw and Cvnnetmt J^atofu, pp. 476 — 478. OnUawrjr, 47«L OoadlUas of Um> ouUaw, 4:77.
I 9. Mmommmif^aint, pp. 478 -480
flMWtnmimfaaitoB, 47H. SpiiiUial lapnay, 47& ■od eml ricbK4ao.
g la Up^9, liBmatie* and Idud*, y\>. 480-481. Tto lapw, 4(I0l The kUcH, 441. Tlio huuii^ <4|.
) 11. rmais pp. 482—486.
Ufd poittiaa of wonia, 488. Wan In |wlnU kv, 481 Wobm b pabbc lav, 40. Marriad wonwn, 48ft.
I II Corponlimu and Churclt^, pt*. 486— 61L
Tbe MrponkUoo. 4M. B^ginaiafa af oorpnrilatMai. 487. f^noaafitf of tba oorporattun. 4m. The anthrotMcnnrphk pktoi* of a oorpantkn, 480. U Um iMTM'nAlit* fkcUti<Muil i>ia. Tba ourpafaUaa at tka and of Um ntddla ^pM. 4ai. TIm corpuratioo awl ila hand, 481. Tba aarpon* tioo la oariiar Uim^ 481 Gradual appaaraooa of Um pwl[K.(ana■^ 4il& Tba Uw of BnMtfw'i tuaa, 4M. Tha nitmmtiM aod tba toMMMfew, 484. Braoloa aod Um mmimmiiai, 4a&. No Uw aa to oarpoiMUaaa la ffmnl407.
Ownb UmU, 4*7. Tlw owomI chnnh, 487. Tba aaiiili aa |iiaM, 4BlL Tbe wtit'* Mltniniatratnm, OOllL tUinu utA ehufriMi to Di Hobday
Bonk, aou. TIm diurvh aa pwwM, 001 Tha rbareh aa ■■! iiii and
jwr—aa jCdta, flOI. Tbe teatfioffkl courta au*! iba ebordMB, Ml TW parUb tbanlt, aoo. Tba abbuUl Aunk, MM. Tba atdaiiifMl chnnb. MBu IIUM«^«Umi of Um wiJaiNiiiiMl pvitp», ftCML Oaonaaal gnH|M ^«0MlBrclMfai,B(n. IntanMl afcfaa af ihiiual pwip^ Mt. TW flra^acMai^SOa Tba amtoUallaal aad liba f iipwl Tba tofsmU and oibM- laad iiiwiilHai. Wi.
Contents. zr
% IS. Th» King and the Cnwn, pp. 511—626.
la than a orown? Oil. Theories as to tiie khig'B two bodiei, 611. PMWDiftoatioa of the kmgBhip not neoeeaaiy, Olfi. The king's rights as iiilwillwl private rights, 61S. The king and other knda, 61S. The kJagrtBp M ptoperty, 613. The king's rights oan be ezermaed by him, fil^ Tim king can do wnng but no action lies against him, 516. Kiag^ land and orown land, 618. Slow growth of a law <tf *capacitieis' 6181 No lay o(vpozations sole, 630. Is the Idngdom alienable? 5S1. The king can die, 681. The Idng can be under age, 688. Qenns of a dootrine of * o^iacities,* 6SS. Personification of tiie crown, 684. Be- tnapeot, 686.
CHAPTER m.
JUBIHNOnOIf AHD THB OOHMUNITIIS OF THI LaKD, pp. 627 — 533.
Place <tf the law of joriadiction in the medieval scheme, 687. All tanqmal jnrndiotion proceeds i^nm the king, 688. The scheme of ODuts, 588. Division of the land, 689. The county court, 689. The hundred court, 63a The sheriflTs turn, 630. Sei^iorial courts, 03a Feudal courts, 631. Franc^iise ooorts, 631. Leets, 688. B<noagh • ooorta, 638. The kin^ oourta, 038.
§ 1. Th0 County, pp. 533—656.
The county, 532. The county ofiBcera, 533. The county community, 534. The county court, 535. Identity of county and county court, 536. Constitution of the county court, 537. Suit of court no right, but a burden, 537. Suit of court iu laborious, 538. Sessions of the court, 538. Full courts and intermediate courts, 539. The suitors, 540. Suit is a 'real' burden, 541. ' Reality' of suit, 542. The vill as a suit-owing unit, 642. Inconsistent theories of suit, 543. The court in its fullest form, 544. The communal courts in earlier times, 545. Struggle betweeu various principles, 546. Suit by attorney, 547. Representative character of the county court, 547. The suitors as doomsmen, 548. A session of the county court, 649. The suitors and the dooms, 560. Powers of a majority, 652. The bvzcmes, 653. Business of the court, 553. Outlawry in the county court, 664. Qovemmental functions, 554. Place of session, 555.
§ 2. TJ^ Hundred, pp. 556—560.
The hundred as a district, 566. The hundred court, 557. Hundreds in the king's hands, 557. Hundreds in private banda, 558. Duties of the hundred, 658. The sheriff's turn, 559.
§ 3. Thv Vill and the Toumship, pp. 560—567.
England mapped out into vills, 560. Vill and parish, 660. Discrete vills, 061. Hamlets, 662. Vill and vill^e, 562. Vill and township, 063. Ancient duties of the township, 564. Statutory duties, 066.
xtf
ContatU,
OoaltihutioQ of Unnwhip to gvianU ftn«i, AO(L Kiartion* fr«n tcnnuUpi, ftM^ HiMMlUiiMtu odbnoM of the townUp, 6M. OrguxiMtkB of th*
I 4. 7^ THkimg, pp. 568—671.
Pnuikpledfi^ »6S. Tb* ^atom Is eoiC lUi., 5M TovMhtp ud tiUiiii);. r><Hf. The viov of ftmnkpMg^ 570. AMmmUbm At tba risw, ft70. L'ucuititatMin of tithing 571.
j^ A. Seidfnorial JuriMtiuium, pp. ftTl— MC
lUgilftiw Mad hud*l rigtiU, liTI. Aoquiaitiou oC n^fitlM, ITf. ThwrMn of royal Uwjrons 673. Various kiocU of fninchlti^ A74. 9)mml ImnuinitM, &T4. IminunitiM tma pcnmul ■omtsi^ 074. IrnimtfiHtim Aran fomt Uw, 576. FuuaI powvn, A7a. JorudieUscyU fommn, ATf. Oofitnrt batman pmiani and inmunitiM, &77. Sakai «ok% toB aad taun, 678. Baka and aoka bi oont xiil« 07D. View of ftvikpladaii, saOc The Icet, ftaa Tha ritl and tlw rivw, Ml. The mu» of brwd a^ Iner, Ml. Bijth juirtlca, Ml Ui({ti thuMhiaoa d&iiMd bjr pnacripUoo, 5ft4. Tlw prvparij fcucUl junxliction, M4. Tha fnidal ojurl is mmallj m BMunrial oonrtt H5. JuriMliciiuii of Uw (mdal ootutt MB. Civil tttlfUion : panoBsl aetioni, M7. Actions for fkvahoM Und, AST. Aebncw Cor rilUio land. SBflL Utifttion Wtwppn U«fl and imn, M^ Pinimi- DMab^ &6a QowrmuiUl power* *t»l t>7 U**. MKK AppiflalB Jnrw- dktioti, OOa OonrtitatioB at Urn fcwUl court, SOS. Tb* lovttlmt, ««1. TWauHoi^ 668.
I «. 7%e J/cMor. pp. 8M-609.
Tba maanr, B04. ' Manor* nnC a Uuhnical ienn, AttTL luSatoitMMM of tb0 tenn, fi4ML A typioal uaiKV, AOO. Hm naoor Immmmi, UfT. Ooottpation of Um luanor houM, ABA. DaoMttw land, Afitti TIm fraok^ tanaobi, IIOOl Tba tauaiiu in rtUaiaa^ 001. TIm uanohal court, OOt. 8iai ct tba nuuHV. Out. Admlniauaiiva nnitj of tfaa tmaam, flOL anmawr;, OM.
I T. 7%« Jfofior anti lA» Ttncfukiy, pp. 606 634.
Cbinekhnoa of inatiDr and till, 005. CniiK-idutii* HMuinnl im nttftnal, 0O8L CniocidMies ont alwajra fuuiMl, WDfJ. Xun-nuuwviaJ rilK OOK llanon and mvb-tatUKm, AM. Tba afiain nf Um m-n-maoorial riD, fllO. hranaoaot apfH*tiuwiMtit of tfaa lowmbiii'* datioik MO. AMiUmaa* of laaKUl faafdana. Oil. Ttia ofanrth nU, Olt. Appcftiounaot of Uua on SMnfali^ OlAu Ac4loM ^aH Iha boadrad, •!«. Kowumb a&ira <d t^ D»-iMnarial nil. 917. liil«fl«annM«Uic vflh, OIK Ratani !■ ihm maMri*! vlU, OOOl RigliU gf oownawi, tKX R%bu nf tmmavm aod ri^ 6«L TIm ftwbobhf^ ri|M «# oaMaoo, OIL Tba and Um uumumtiiiy, Ott Waadom of tka ftaahnldar, OB CoBiBaoBliHtt a«KB): if4. Tbn villain cwtmaiKj. OM. C^oi-
id eaOatiif^ .u..^..tj, 007. Tba cMuwaittjr a* hroMr, Oa& «f flOawMMl rixtiM, 080. Caansnal ri|faU dfcfvar upon
4
OorUents, xrii
Mh, Oo-ownenhip and ocvpomte prt^erty, 690. The fcwA^ xmly has rights, 68S. The townahip in litigfttum, 6n. *F^™^*?™ te the boroo^u, 683.
%B. The Borwgh, pp. 684—688.
CStiaB ud boroDj^ 684. The vill and tite borou^ 634. The iMfoo^ and ita oonio»iiii<7) 685. SMch of eorfy faistoy, 636. Boroufl^ and diin^ 686. The borough ae Till, 637. The borough's heiorogeoeityy 687. Tbe boning^ and the king^ 638. The boami(^ and the gilds, CM T^Miaitioa to ^ent ziiL, 63A.
toMa^or limit of hoigalit?, 640. B€|anseDtatioD in porilament, 641. Tbs ^Tpfaal borooghs and thor flwK^iiaea, 642. JntiadiotioDal priTileges, 60. Ctni joriadiotioD, 644. Criminal jurisdiction, 644. Xtetuni of vtiti^ 64^ Prinleged tenure^ 646. Mesne tenure in the bravnghs, 646. BpptPrial nf^AB in the boroughs, 646. Customiuy priTSte law, 647. Bnano^ation of swft, 648. Freedom frnn toll, 649. The.;!rma hwrgi^ flSa What was ibnned, 65a The ftvm of the Till and the soil of the Tin, e&S. Lands of the bonw^ 668. Waste land, 66& The boroagfa's MTCBoe, 666. Chattels of the borough 656.. Eleotire offioers, 656. Bono^ oourts and oooneils, 667. 37-lawa and self-goTemment^ 660. limits to legidatiTe powora, 661. Enlbraement of by-laws, 661. Bates and taiBB, 66S. The bonugh's income, 663. ToIla,.6e4. The gild BMKiiant, 664. The fiwmation of a gild, 664. The gild and the gownansot of the bonmg^ 666. Objects of the gild, 666. The gild and the boigesMS, 667. The ^M oourts, 667. The borough aa a franohise holder, 66a.
Corporate character of the borough commmiity, 669. Corporateness Dot bestowed by the king, 669. Gild-like structure of the commuDity, 670. Admission of burgesses, 671. The title to burgherbood, 671. The ' subject ' in the borough charters, 673. Discussion of the charters, 673. Charters for the borough, the county and the whole land, 674. Charters and laws, 674. The burgesses as co-proprietors, 676. The community aa bearer of rights, 676. Inheritance, succession and organization, 677. Criminal Kability of the borough, 678. Civil liability, 679. The com- munities in litigation, 680. Debts owed to the community, 682. The common seal, 683. The borough's property, 685. The borough's property in its tolls, 686. The ideal will of the borough, 686. The borough ocrporatiou, 686. The commimities and the nation, 687.
LIST OF ABBREVIATIONS.
A.-S. MAnglo-Suoii.
Bl Com. — BUcluttine'ii CommenUriM.
Co. ^Coke.
Co. Lit. »Coke iiimn Littleton.
D. B. iDomcMla; Book.
I). O. R. " Uoiitnohes OeDotwetMchftfUncht
D. R a. -DeutHche Recht«f!SK:bichte>.
E. H. R. aKuKli'ih HiBtorical Keview. FitL Abr. >= Fitzherbert'ii Abridgement Fitz. Nat Bre%-. ' Fitzherbert'fi Natun Bmium. Hatv. L. B. b Hsnard Law Review.
LiL -iLitlleUiii'ii ToDuree.
L. Q. R. -Law Quarteriy Reriew.
Uun. iivrm. =^ MonutuontA (}«nn«»iae.
P. C. - PImm of thti Cn>wii.
F. g. W. -PUcita do Quo Warranto. Reg. Hrev. » Regiatniin Brevium. R(f]i. ~Cnke'H Ri'|>orta.
R. H. .= Hundr«J R<>1U
Rf>t Cart. -Charter KoIIa.
Rot CI -CUwe Rnlla.
Rot. Pari. -Parliament Rfillii.
Rot Pat -Patent RolU
Hec Innt -Cuko'x Sfc<Hid Iiwtitute.
Sel. Cbul. -StubbdH Stflei-t CharteiH.
X. — Dei-rt'tAlttt GrogDrii IX.
V. a - Veiu- lt>K>k.
* Ttw Monnd rditioD of Helir<>«Wr'« I>. R. U. ii r»r«md to.
LIST OF TEXTS USED'.
(BsBoUi Bmin. Bn. Com. =Beootd Commiasidii. SdcLaiSeldeD Bode^. Onad.sGHndaB Ootiat^. Siiit.a8iut0N Soeisfy.]
Dfe OcMtaa der AwyhwAawn, ed. F. Liebenuann, in prognaBb CoOeettoH
Die Ocaetn der AngrfMnhaen, ed. Beinhold Sohmid, find ed., Ldpsift 1B68. ^j^J^^jy AncMot Laws aod Institutes of En^and, Sra ed. (Bao, Oom.). dumuinttli.
OoonoflB and Bodesiastioal Documenta, ed. Haddan and Stabbs, Yoh iii
Ozfefd, 1871. Qudz^artitos, ed. F. Liebermann, HaQe^ 189S. OonsOiatio Gntiti, ed. F. liebemuum, Halle, 1893. Leges Sdwaidi Conftaaoris, ed. F. Liebermaxui, Halle, 18M. Liatitaift Aniti, ed. F. Liebermann, Transaotiona of Boyal Hist Soo.
K.a ToL Til p. 77.
Oodex Dipkntaticas Mwi Saxonici, ed. J. M. Eemble (Eng. Hist Soa). Dipiotnatarinm Ans^com Mvi S&xonioi, ed. B. Thorpe^ hamAxm, 1866. Cartularium Saxonicum, ed. W. de O. Birch, 1885 ff.
Placita Anglo-Normannica, ed. M. M. Bigelow, London, 1879.
Sdect Charters, ed. W. Stubbs, Oxford, 1881.
Chartes dee Libertea Angtaises, ed. Ch. B^mont, Paris, 1892.
Statutes of the Realm, vol. i. (Rec. Com.), 1600.
Bolla of the King's Court, Ric. I. (Pipe Roll Soc.). Judicial
Rotuli Curiae Re^ temp. Ric. L et Joh., ed. Palgrave (Rec Com.). Records.
Placitonim Abbreviatio (Rec. Com.).
Select Pleas of the Crown, 1200-1225 (Seld.).
Select Civil Pleas, 1200-1203 (Seld.).
Pleas of the Crown for the County of Qloucester, 1221, ed. Maitland,
London, 1884. Bracton's Note Book, ed. Maitland, Cambridge, 1887. Three Assize Rolls for the County of Northumberland (Surt). Placita de Quo Warranto (Rec. Com.). Somersetshire Assize Rolls (Somers. Record Soc.).
> For texts relating to Normaod; see below, vol. i. pp. 64-6 ; and for texts relating to the English boroogbs, see below, vol. i. pp. 642-8.
XX
IaU of Tt^^.
Mm* Om from Cmobm^ Bolb (SaU.). Rotuli fWliuDOutamin, vaL L (oAcUl edltian). ManonntU da fWiuunto, ISUV (B).
8tlM« PlflM in MAoorkl Courte (IMd^
Tb« Cooi^ Bum (Sold.).
DBrinn HjUmnta Bclk (Burt).
Th« Lnt JariKlMoo In Konriah (Bdd.}.
DoonkUj Book (aOobd adltiDn).
PI|j« Ri*n of 31 IInit7 I (R«v. Coia).
Pipe RoUi of Wmrj IL (Pipo Roll Sue).
Ral [k.-k »f the Exclter)tMr :R}.
Libo- Nicer Siwxmni. hL Umtm^ Osfttn). 17M.
Botoli Lamva CUuMnua. ISM-ISS? (Rw; Oom.).
Bntnll l.iUTiinnn pBtantium, lSl)1-12ie (Koa Com.).
Batiili OtiArtAnnn, llflfr-ISlO (B«c Onokj.
BotulJ dn ObUtia et Fiiiiliiu, bnn|i. Joti. (lt«G. OankV
ExowpU • RotuLu Fitmim, ISIC-ISTS (KccOnm.}.
Fba^aiva (VdM Plnium, llfl& 1«IA. «d. HunUr {Roc Con.).
rbMofFtiM, iiei-ii9e(F)i» iti>iistjc.>
BotnU RundndonuB, Hon. 111. ot EUw. I. (Itoc Ooia.).
PkriiAa>rtitA/7 Writ* ^H«a Com.).
Tart« da Nav-Ul« (R«c C;oul).
Dooumento UlartKlive of EngUah HUu«7. mL Cote (B«a Oom.).
CUndarram OoCMloflnim (Baa Ccn.).
FoadMi, OoDTOtkuwi olc., kL 1816 (Bee OoolX Frynmi, R««inK L*. An met Chruoologkxl VfaMfieMioii„^ Um Kil^ SttpnRiw Eed—hMrticil Junadiotioo, t/ttu, Loadun, 16&a.
MuinnBl* OildhaUM (B]^ ooateialnf Lther AIUm ami Libor I
Lav- Bnwton. TmcUiu* do LbciImim, «1 IMNl
^"^ Bnekm wd Ana (SekL).
BrHteo, ^ r. M. Nlobok, Odbrd, IW3.
n«U, Mvi ConUDeuUnuji lum An^Ui^iii, nL 16A&.
QkuviU. Tnctottu da Uv*"*"* ^ ^^'^
TTw(hini. SmmnH^ pfintad *t tba md o^ Seldcn't cd. ri Fortoiew^ Da lAodttiaa.
Tbo Mlmr or JtMtiw {lhU.X
uw r«M- BkJb tit iry-\, f i-i, lo-i. as-ii 9-a Bd«nnl I. <BV
ntMU.
•tawAUalm. 0«to AUnmb MiMMMtl & AJbml (B). "**• tHi^fiii.CfcwtBwiM iidt(B>.
JAat of TexU. xzi
AiOiqwB Jje^baa, Liber de (OmmL).
Beohat KateialftftirtheLiftof ThomMBeeket (B).
Bnsdietaa Abbu. See Qesta HenricL
Brnkelonda, Chnmioa Jooelini de (CaouL).
Bnrfam, Annaha de, in AmwlBH Monawtiei, rol i. (B).
Gftmbnnais. See CHimldiia.
Guteibiuy. See Qerraae.
'OoggeBball, Badulphi de, ChronioMi A"g^'^»»"«" (B).
Oofefeoo, Barthoknnaei de^ Historia Ai^licana (B).
Dio^, Badnlfi de, Opera HiBtorica (B).
DmutepBa, AnnaUe RiOTatas dc^ in Annalai Monaetici, toL iiL (B).
Dariiain, STineni <a, The Histcnioal Worfca of (R).
Eadnteri, Hiatoria KoTorum (B).
Edward L and Edward IL, Cbronidea of (B).
SreafaamenBiB, Ohronioon Abbatiae (B).
Tkr«a Historianun (B).
Rapcwcapa, SCooumeDta (B).
Qerraae of Canterbory, Wortcs of (B).
Oeata Heurici Secundi (Benedict of Peterboroogh) (&>
CUnkhu CunbrmsiB, The WcAb of (B).
Gloooeetw, aCetrical Chronicle of Bobert of (B).
Hemingbnrgh, Walteri de^ Chronioon (Bng. Hirt. Soc.).
HondMM^ Bogeri de^ Chronica O).
HogGoia, Magna Vita a (B).
Hnntcndnnenaia, Itenrid, Hiataia (B).
Idber de Antiqnis Legibus (CanuL).
Malmesbirienais, Willelmi, Gesta Regum (R).
Mapes, OualteruB, de Nugis Curialiutn (Camd.).
Melsa, Chronicon Monaaterii de (R).
Monte, Roberti de, Chronica, in Chronicles of Stephen etc. vol iv. (R).
Newborough, William of, in Chronicles of Stephen etc. vol. i. (R).
Pariaiensis, Matthaei, Chronica Majora (R).
„ „ Historia Anglorum (R).
Ramsey, Chronicle of the Abbey of (R). Rishanger, Willelmi, Chronica et Annalee (R). Tewkesbury, Annals of, in Annales Monastici, vol i. (R). Torigneio, Eoberti de, Chronica, in Chronicles of Stephen etc. voL iv. (B). Triveti, Nicholai, Annales (Eng. Hist. Soc.). Waverleia, Annalee de, in Annalee Monastici, vol. ii. (R). Wigomiensis, Florentii, Chronicon (Eng. Hist. Soc). Wykee, Thomae, Chronicon, in Annales Monastici, vol. iv. (R). York, Historians of the Church of (B).
Academica, Munimenta (R). Letters,
Cantuarienses, Epistolae, in Chronicles etc. of Richard I., voL iL (R). *^-
Cantuarienses, Literae (R). Dunelmense, Re^trum Palatinum (B). QroBseteete, Letters of Bishop (R).
XXll
LUt <f TexU.
Uofnuiei Opttm «i. (lilen, OxforU. IK44.
Kortboni lUgiNtera, HivLahokl I'apon aod LetUn fron (RX
Okmundr KegMor uf St (R).
PaokhuA. R«gi«Uiun JohMinu (B)l
Boijal uid tAb«r Bbtoriod hMm% Hmuy lit. (R).
acmbviMMM, Juuinii, Op«i, id. Otln, Oilord, 1(H&
(WM- BaUi. Tw(> CturtuUh« (Bamarait Eacord Soc ICMX •■»**• BtttK CfcTiaUry (OmiuI).
Bnukbuni, OwtuUry (Surt.X
Burton, Ckilulu7 (Rdt Society, 1884).
OlottogBtvr, IFutAr; mkI tWtujAr; (RX
Oukbaroa^ Cvtokry i8aii.X
lUlBMbiny. lli«teM-(RX
ZCrv«rtMter. Cutukrjr (Sort.).
PtalX DoQwdkj of St (CuhLX
fStarhnrtmyh, Black Book c< at tha and of ChnnlAaa Mroliiinww (CmimLX
Ramx)?, CutntatT (BX
RimrKult, Cnrtukrj iSortX
S«nitu, Chartoni aad DoeiunaDia of (RX
Sctby, Vawhier Book (Tofkahlra ArobMala(teal Boa 18S1-4X
Whaicy, ODooiMr Book <CbathMn Soa 1M7X
Wtiitljjr, Carttaar7 {Sort.).
WtQcfacuinbe. Uiidboo, toL L, ed. D. BofDa^ EmIv, IflM.
Wonaaaar, Raftatar <Oaiiid.X
Routid, AiKTietil CliArt^ni (Pi|« KoU 8ocX Uadui, Fonnolara Anglioanum, iMoSna, 1701. Ai^lWnwi, ad. IflIT ale.
ADDITIONS AND CDRREGTIONa
p. U. Ia*t Uoaa. Aa lo tha hwk^mt (ooi tar* fmit wd) MB W. U.
Stmoautt, E. li. a ^i 489 : MaiUaod. Towndkip and ni»nH*'t M* Ik lia. Or Uafaamana haa witbdimwn tka ■amaliiiii ikkl VMariiH «m
Ifaa aatlwr of tba tiMt an Lonfaard Uw. Sm K. a R. vol lia ji
t87. Tba Snoma da MalrimaDio ha* bva prmlad in L Q. R. siii.
I».t7a
p. flOfll M«a 1. Add a irfwiii lo J. B. Rooad, Tha Dondnd aad tba OakU K. a R. L 711
p. an. Aa Mwn rf MwafaiiMl ■■pwdllMi — —ghl lo haf —ti— d tba naof |a«MO% af a mova or laa vnhntarj Uod, wmim bgr tba liigawM Id U«9S wignlMb Avtt aad UMir odirB^fc Par Umm •■a tba Baoardi «f Ltiij— lar. ad. Batsen, mnm.
INTRODUCTION.
In the Fint of the two Books into which oar woric is divided we have endeaToored to draw a slight sketch, which beemnes aomewhat fuller as time goes on* of the general oatlinee •f that part of English legal history which lies on the other side <^ tiie aooession of Edward I. In the Second Book we have tried to set forth at some length the doctrines and rales of English law which prevailed in the days of GbuiTill and the days of Brscton* or, in other words, nnder Henry XL, his sons and grandson. The chapters of our First Book are allotted to Tazious periods of history, those of the Second to Tarioua branches of law. In a short Introduction we hope to explain why we have been guilty of what may be regarded as certain offences, more especially certain offences of omission.
It has been usual for writers commencing the exposition of any particular system of law to undertake, to a greater or less- extent, philosophical discussion of the nature of laws in general, and definition of the most general notions of jurisprudence. We purposely refrain from any such undertaking. The philo- sophical analysis and definition of law belongs, in our judgment, neither to the historical nor to the dogmatic science of law, but to the theoretical part of politics. A philosopher who is duly willing to learn from lawyers the things of their own art is full as likely to handle the topic with good effect as a lawyer, even if that lawyer is acquainted with philosophy, and has used all due diligence in consulting philosophers. The matter of legal science is not an ideal result of ethical or political analysis ; it 18 the actual result of facts of human nature and history. Common knowledge assures us that in every tolerably settled community there are rules by which men are expected to order
ZXIV
Introduction,
their conduce. Some of (hew ihIm arc; not ojcpn«ed in aojr aiithr'ntir fnnn, nor declared with autharitj by JUiy peraon or body dutinct from the oammnnity at lai^, nor enforced by any jMiwcr conetituted for that purpoea Oibera are declared by some ponon or body having pennanently. or for the time being, public aulhorily for that purpoee, and, whi<u mo decUntd, ore couceivL-d as binding the mcmbon of the c>:>miiiiimty in a BptMrial manner. Tn civiliicd states there are oifirt<r« rlwu){ed with tho duty and fumiMhi*'] with the means of enforcing th«m. Of the fonner kind are the common rulni of munUji and mannent, in mi far aa they do not coincide with ruU»> of law. Wn nhall find thai in En^huid, aa ehewherf, and in timaa wliit'h luUKt b«; uilti-«i rcreiil oa ci}mpared with the known hiAttiry of anoient civilization, many things went left to the nilf of wK'ial custom, if not to private caprice iir iinountroUed private] furcc, which arc now, oa a matter of oourae, regulated by IcgixhitioD. and oontrelled by oourta of juatiee. By gmdoal htt'jiK, iw Hin^nilarly alikr in tho main in dtfTervnt landa and pi'riudfi lit lh<> cotn^^iKtudtng !>taga» of luivanco, aa tbey have diffcrfil in driaiJ, public atilhonty haa drawn to itBeirm<irt< and murv cau«r> and matlors out of ihu domain of ronre unago and momln ; anil, when- M'vi<nd fomin of public authority have beea in comp<'ti(iun <tt^ notably, in the hi»tor}' of Chriatciutoin, Ibtt <Thurcb baa striven with eccuhtr prince* and nileni %tt enlarge her Jnriadiction at thi'ir oxponw), we find that aoOM one fttrm haa genermlly preTailod, and rcigufl without aenoDa rivalry. ThuH, in every civilised Commonwealth we expect to find couru of jufftice opm to cxiinmon rewirt, whifrv jodgea and inogisUatea appointed m a niicuhu' coune by the lupmn* govemon of tba Commonwealth, or, at leaat, with ibeii' allowanoo and anthorily, declare and administer thoae ruloa of which the State proteaea to oompel the obMrvaaea Hoteover, wn expect bo find regnlarty appointed Benoa of patting in font the jodgmeatB and orden of the eourta, and of overeoming rwiaHnfiw to them, al need, by the nae of all or any part of the phymal power at the dnipoeal of the State; LoMly, we expect to fiad not only that the dtiaott may un the meaaa of ledieea provided and allowed by pablio jnattoe. but that be may not oae othen. Save ta auna portacalarly excepted, the man who takea the taw into hie own hand* pata bimaulf in the wreog, and offends tha ootninanity. "The law ia open, and there am deptttiae; iM
tbem implead one aDother." Such are for the citizen, the lawyer, and the historiati, the practical elements of law. When a man is aejquaiated with the rules which the judges of the land will apply to any aubject of dispute between citizens, or to any act oompLaiued of as ao uSience against the coniinon weal, and ia further acquainted with the manner in which the decision of the eumpetent court can be enforced, he rauat be yaid to know the law to that extent. He may or may not have Dpiaiona upon the metaphysical analysis of laws or legal duty in general, or the place of the topic in hand in a scientific arrangement of legal ideas. Law^ sueb as we know it in the conduct of life, is mtttter d fact ; not a thing which can be seen or handled, but ft thii^ perceived in many ways of practical experience. GomiiKmly there is no difficulty in reoogniring it by its aocDStomed signs and works. In the exceptional cases where diflicBlties are found, it is not known that metaphysical dflfinitioik has eV^ been of much avail.
It may be well to guard ourselves on one or two points. We have said that law may be taken for every purpose, save diat of strictly philosophical inquiry, to be the sum of the rules a^nimsteied hj courts of justice. We have not said that it must be, or that it always is. a sum of uniform and consistent rules (as uniform and consistent, that is, as human fallibility and the inherent difficulties of human affairs permit) ad- ministered under one and the same system. This would, perhaps, be the statement of an ideal which the modem history of law tends to realize rather than of a result yet fully accomplished in any nation. Certainly it would not be correct as regards the state of Elnglish legal institutions, not only in modem but in quite recent times. Different and more or less conflicting systems of law, different and more or less competing ^tems of jurisdiction, in one and the same region, are compatible with a high state of civilization, with a strong government, and with an administration of justice well enough liked and sufficiently understood by those who are concerned.
Another point on which confusion is natural and may be dangerous is the relation of law to morality. Legal rules are not merely that part of the moral rules existing in a given society which the State thinks proper to enforce. It is easily recognized that there are, and must be, rules of morality beyond the commandments of law ; no less is it true, though p. H. 1. e
/^
lntrodt»elum».
te» oommooly ncogaixod. ttul there u« and must bo nslM of law bcjond or outxidn iho rlinfct prdcopto of rooniHty. Thpre are nuuiy things h>T which it \i* noedful or highly ounvc-nimt to have a fixod mlc. and compAmtivoly or even wholly udtfToretU what thiit niir nhall Iw, When, indeed, the rule in tixed by ciutuiD ur Utw thru tnumlity approve* nnd eujoiiis ubudinooa to it. But the rule it«oir ii not a moral rule, lu Eoglaiul man drive on the left-hand aide of the mad. in the United States and DMirly all fiarta of the Continent of Europe on the right Morality has nothing tu nay to this, except that ihfMu who oae the roadi ought to know and obeervu the rule, whatever it ba, pmoribed by the law of the ooantry. Many ease*, again, ooeur, where the legal nila doee not pro&aB to fulfil anything like [K-rfL-ct juHtco. but whore oertainty ib of moru importance than perfertion. and an imperfect rule ie therefore useful and acceptable Nay, more, then? are came whore the law, for naiona of genoiml policy, not only makee pemona chargeable without piYxif (if moral blame, but will not mimit proof to the ooattary. Thua, by the law of England, the pooeaaor uf a dangerous animal is liable fur any miachief it may do, Di>t- witbatanding that ho may have used the iitmoot caution lur ita mkfe keeping. Tboa, in oar modern law, a maat«r hai to answer for the acu and defaolta of a servani occiipiod about hia bannesB, howvvur careful be may have been in chooaiog and inetnioting the servant. Thua. again, there are oaaes wh«re an ofavioualy wtongftil act has brought loss opon innocent petaooa, and no redress can be obtuaed from the primary wfoag<doer. Id SQch oaees it has to be decided which of those innocent peiaoos shall bear the loaa A typical example ia the sale of stfJen gooda tu one who buys thero in giiod &itb. The ftandnleot aellor ia oomuionly out of roach, or, if within readl, of no means to make restitution. £i(h«r the tnie owner moat loeo hia goTHla, or the purchaser must loao hia mooay. This queatioo, simple enou^ as to the beta, is on the Twy bonkr-liue of legal poliey. Soma ^stama of law bvuur the fint owner, aome tba purebaaer. and in onr En^iah law itself lb* result may be one way or the other, aoeofding lo oooditiooa qnito tttdapeadoat of the aotnal booeety or prndanea of the partial Ui the daalinga of madam eomnMrea, qoeatkos which are raduoible to the aamo priaeiple ariea in rarious ways whi^ may be complicated to an indefinite eatonl. Bvidontly there
Infrodvction. xxvu
must be some law for such cases ; yet no law can be made which wrill not &eem unjust to tlie loser. Corqpensation at the public expense virould, perhaps, be absolutely just, and it might he jjracticable in a world of absolutely truthful and prudent jn;opU>. But in such s world frauds would, not be committed on individuals any more than on tEie State,
iVnother point worth mention is that the notion of law does not include of necessity the esistencu of a distinct profession of lawyers, whether as judges or as advocates. There can not well be a adeiioe of law withont such a profesedon ; but justice can Iw admiiuBtered according to settled rules by persons taken fipMH the general body of citizens for the occasion, or in a small eommimhy er^i by the whole body of qualified citizens ; and j- vader the most advanced legal systems a man may generally fioodiict his own canse in person, if so minded. In Athens, at the time of Perioles> and even of Demosthenes, there was a gnat deal of law, but no class of perscms answering to onr judges at coonselloTs. The Attic orator was not a lawyer in the moderD sense. Again, the Icelandic sagas exhibit a state of iocieiy provided with law quite definite as fiu as it goes, and even minntely technical on some pmnta, and yet without any professed lawyers. The law is administered by general assemblies of freemen, though the court which is to try a particular cause is selected by elaborate rules. There are old men who have the reputation of being learned in the law ; sometimes the opinion of such a man is accepted as con- clusive ; but they hold no defined office or official qualification. In England, as we shall see hereafter, there was no definite legal profession till more than a century after the Norman Conquest. In short, the presence of law is marked by the administration of justice in some regular course of time, place, and manner, and on the footing of some recognized general principles. These conditions appetu- to be sufficient, as they are necessary. But if we suppose an Eastern despot to sit in the gate and deal with every case according to the impression of the moment, recognizing no rule at all, we may aay that he is doing some sort of justice, but we can not say that he is doing judgment according to law. Probably no prince or ruler in historical times ever really took upon himself to do right according to his mere will and pleasure. There are always points of accepted faith which even the strongest of
e2
'I
deapoU lUreit not offend, poinU of custom which hu dunM not
At lb« mmc time ihv cotuciuuii sepftntiiio uf Uw boa moralN Ai») ruligion hu been a grmdiml pnkonw, ud it hw Urgvly gone band in huid with tbt> marking otf of cpt<ci«l oofi- ditiuD* of men to attoiid to religioua and to logml affiunw and th« development, through their special atndiea, of joriapni- dtoxx and theology aa distinct scienuea. If there be aaj primitive theory *>( thu nature of law, it aeuma to hm thai taws are the uttvmDc« of some divine or heroic pcfwci wlw revcttiM, or declarea a« revealed to him, that which in ahamluttfly right. Thv deHiFL* to rufer mstitutioiis to n deitietl nr canoo- ixcd legislnlor is shown in Eiiglimd an Intv as the fourteenth oentury, h,v the attribution to King Alfred of everything mip> poaed to be specially national and exoeUent. In tht! exbuL Brahmanical recensiona of early Hindu law this desire is ■atisfied with delibemte aiid excessive minntencMi. Wber«T«r and whenever such notions prevail, iho distinction between legal and mnrol duty can at best be imperfectly raaliaed. During the age of which we are to apeak in this book a gram) ftUmnpt vat being made tu reduce morality to legal fonna. In ihr s^iit<rm of ih*- imHiirval Churrh llie whole of 'external' moral duty im iiicltjdt.fl in (he law of Utid and of Holy Church, llorality bcconitri s thing of arguments and judgmenta, of posi- tive rulwi and t>xc4>pliotui, and oven of legislative deckntion by the authority Miprcmu on c«rth in matters of fiuth and monk Uany things un nhich P^vCeirtaots are aooastomcd to spnd tbeir astoniAhro<*nt and indignation are merely the Meeflary oonoeqiMOoaB of lhi» theory. We shall often have to obswo that tbo wid* and tlezihle jurisdiction of thi^ spiritual pwar was of grvmt SBrvico in tho middle ages, both in supplementing the jusiioa of Ncular eoarts, and in ^f*T*****^ then hj tU fons^ble oocapaCitJOD to impctive tbair doetria* aiid pooliM : but m dtseusnoii of the Church's penitential system will not bo wrpeotadofna.
W« have spoken but brieBy of the law which prvvnilcd in Kngtand before tb« ooroing of the Konnanic and thenfcn we ought perhaps to my hero that in oar upininn it was in the main pure Oermanie law. Qucclaon has bem made at vario«» tintta M U> how uiurh of ancwnt British custom survival) tbe ooBqnest of Britain by sueocMive tnvnden, and beoauM in-
4
J
IfUrodudion. xxiit
cotpoMtod in S^giidi lav. We are rmable to aas^ aay de6mte duoe to this Celtic element. The rapposed proofe of its tmntmim hare, so &r as we aie aware, no sorer fonndation than GcancidenoeL Now tiie mere ooinoidenoe of particulars in eariy bodies of law proves nothing bey(Hid the resemblance of aU institntiinks in certun stagea There are, again, many pointB o9r real organic connexion between Celtic and Rnglmh law even if ^ere has been no borrowing from the Welshman on the Engliflhman's part If there be a tme affinity, it may well go badk to a common stock <tf Aryan tradition antecedent to the dirtinoticm of race and tongae between German and Celt. And if in a given case we find that an institution or custom which is both Welsh and English is at the same time Scandinavian, Qreek, Boman, Slavonic or Hindu, we may be reasonably assured that there is nothing more specific in the matter. Or, if there be a true case of survival, it may go back to an origin as little Celtic or even Aryan as it is Germanic. Some local nasges, it is quite possible, may be relics of a prehistoric society and of an antiquity now immeasurable, saved' l^ their obscurity thron|^ the days of Celt, Saxon and Norman alike. There is no better protection against the stronger hand; bracken and lichens are untouched by the storm that uproots oak and beech. But this is of no avail to the Celtic enthusiast, or rather of worse than none. Those \^o claim a Celtic origin for English laws ought to do one of two things : prove by distinct historical evideoce that particular Celtic institutions were adopted by the English invaders, or point out similar features in Welsh and English law which can not be matched either in the laws of continental Germany or in those of other Aryan nations. Neither of these things, to the best of our knowledge, has ever been effectually done. Indeed the test last named would be hardly a safe one. The earliest documents of Welsh law known to exist are in their present form so much later than the bulk of our Anglo-Saxon documents that, if a case of specific borrowing could be made out on the face of them, we should need further assurance that the borrowing was not the other way. The favourite method of partisans in this kind is, as has been said, to enumerate coincidences. And by that method our English medieval law could with little ado be proved to be Greek, Slavonic, Semitic, or, for aught one knows, Chinese. We can not say that no element derived from the Celtic
XXX
TntroflurtioH,
mhAbiuntt of BritaiB exisU in il. ior there is do bmum of proving K> geneniJ a aegatire. Bai there mcrw to be do proof nor eviilenoe of the existebcr of that clemont in attj tiich eppreciublu meeture u would ubligu u* tu lake accuuut uf il in Buch a work as the prcaent. Again* there ia the poMbility that Celtic detaiU. amimilated iu Qaul by French law during ita growth, pawed into England at thu Naniian ComfueaL But il ia not for u« to diaeoH thia poMibility. Ou the other band, do one con doubt that the EiiglUh law Ktaloil and de6nnl in the series of doum« which «trt>tchet from ^thvlbirht to Cnut Hnda neanv kitiKfulk in lh<i law that prevailed in SaxoQ^ and Norway and mi the Lumbonl plain than thoat* that it fitidf Mnong the Welsh or Irish.
Coming to the aolid gn>und of known hiftoi^. w<* 6nd that our laws haw been funnctl in the main from a atw^ of Teufmic customs, with Mtmo additions of matter, and eoo- Kiderablcr additions or modificatiaaB uf form rMwivod dirvotlj ur ibdirertly from the Roman system. Both tbi- Germanic aud ihi' Rijuiiinio clfnicutfi have boeti oonstituU-d or rvinfofv«d at diffprent times and from diflorent souroox, and wo havs thoa a hrge range of pooeibilities to which, in the ahaeooe uf direct prooC we must attend carefully in every case before oommitluig oaieelvcH tu a deekioiL
Taking tiret the Germanic nuOepal of our bws. we begin with the cuatoms and toatiLulinns brought in by the Eogliih oonc|ueat of Britain, or rather by the serioa of conquests which led to the formation o( the Engliafa kingdom. This is the prime stock ; but it by no means acoounU for the whole of the Germanic elements. A distinct Sesndinsvian strain came in with the Danish invasiomi nnd wu ercurod by the short period of Danidi aovereignty. A third uf England, a populooa and wealthy third, booano known as the Danelaw. To some extent, hut prnbahly to no grsai extent, the Norman law and pradioe of Williniii the Oonqneror may have in'-lufk<d nmilar matter. The main importaoDu uf the Norman ooutribulioo, bowevrr, wee in ocber kinda llooh Anglo-Nonnaa kw is Uemanie witbout being either Angto-Saiea or Noim. Indeed of noant jeaia it has become the fiuhion upon the Cootineni to sptmk of Anglo- Nunnan law as a daughter of Prankiah Uw. The Prankish ttflaarehy. the neareit approach to a civilised power that eneted in Westers Ewope anoe the barbarian invasions, waa in many
IrOroductian. xxzi
things m pattern for ite neighboun and for the states and prine^atities that rose; oat of its rains. That we received finm the Nonnans a nmtributicm of Frankish ideas and customs is iadalutid^ It was, indeed, hardly foreign to us, being dT kindred stock, and still not widely removed from the cconmon root of Germanio tradition. We must not omit, however, to coont it as a distinct variation. Keither must we forget that ^^fl*"** princes had already been following in some measure the sane models that tiie Dukee of the Normans copied. From die time of Charles the Qreat onward, the rulers of both Merda and Wessex were in intimate relations with the fVankish kingL
Now each oS these (Sermauic strains, the purely Anglo- Saxon, the Scandinavian, the Frankish, has had its champions. To decide between them is often a difficult, and sometimes in our o{nnion an impossible task. A mere * method of agreement' ii^ as already said, foil of dangers, and such is the imperfection ci oar record that we can seldom use a ' method of differences' in any convincing fiishion. Even for the sake of these somewhat remote and obacure problems, the first thing needfol seems to be that we should have a fiairly full statement of the Knglish law of the Angevin time. Before we speculate about hypo- thetical causes, we ought to know as accurately as possible the effect that has to be accounted for. The speculation we must leave for the more part to those who can devote their time to a close study of Anglo-Saxon, Scandinavian and Frankish law. The English law of the Angevin age is for the present our principal theme, though we have sometimes glanced at earlier and at later times also.
As to the Roman, or more properly Romanic, element in our English law, this also is a matter which requires careful distinc- tion. It has been maintained at various times, and sometimes with great ingenuity, that Roman institutions persisted after Britain was abandoned by the Roman power, and survived the Teutonic invasions in such force as to contribute in material quantity to the formation of our law& But there is no real evidence of this. Whether the invaders may not have learnt something in the arts of peace and war from those whom they were conquering, something of strategy, architecture, agri- culture, is not here the question. We speak of law, and within the sphere of law everything that is Roman or Romanized can
XXXIl
Introfiiietit^n.
be aeeoantod for hy ktar importotioiL W« know ihU tiM knguage ud the religion of Rone were efl»oed. Boaum CbrisUiuiity hod to muke m ttv*U amt\ue»t of iha Bajfliili kingdom almoiit bh if iho BritiMh Church had uevcr «xut«d. The rvmnAni of that (Thurcb voud alooC and it woald wna that Aaf^iNtinp did nut ihink it entitled Co much concilimtion, mlher b^ iu mtTit.-* <»r hy iui iuiportanoo*. li » difficult io beliere that civil uiMiitutiona remained oontinuotu in a couutry lriiet« the diMontiouity of eoeleaiartical affiura in ao pointedly narked, and in an age when tho Church was iar mors atabla and compact tlian any civU nuLitutiun whatever. And, in point of (act, lhcn> i« no trace of the laws and jari5pniditioe>of imprrial Rome-, ok disitinct from the preoepUi and trmilitioDii of the Roman C^urrh, in the earlieat An^o-Saxon docuineat& Whatever is Roman m tiieru is eo«l«ateiticaL The dai^er of aiguing in theae matt«re from a merv enumermtion of ooin- cidenc«M) hai already been [wint^d out with reference to the attempt, in our opinion a lubAtaniially similar doq, to attribnta Englifih law to a Celtic origin. Thia inttiad of the Roman ecelflwaatical tradition, in uthtT word*, of the s^iitem whicJl in oourw of time waa urgnuuecMJ tut the l^non Ijiw, wa»> the fifii and by tko mean* the leaat important of the Roman invaAona, if we may sm call them, of our fiemianic polity. Wc nerd ool doubt the atatcmunt that Kn^Iuh pHnooa bogau to callect Iheir euetomaiy lawt in writing' nfl't the Rormd «xBin|ile aado known to them by Augustine and hi* HUcoeMwn'.
Somewhat later th« tntemmrae of Rngliah piinoM with Uke Fimnkish court bnmght in a freafa aooewion of oonripeiUl learning and continental furma, in the hands of olerka indetal, bnt ^kpUoabk lo aecular affium In thin way (he Rooiaa mterials aanmilated or imiuiAl by the Fimnls eeeily 9natd thfldr way into KngUnd at a aeoood mnove. Uany, perfaapa most, of (he fiacta that have been alleged to sbuw Uie per
> Ttm tUmy Uul Att«<i*liM e«H*rf iha W^k UA«p« hy nU rWnc to nad*» iWfB oMjr h* MMpud M ^ymhaUmOy H Ml UtwaUj itm
> HaawdlBg to 8a4a {tL I) JtftAMi of KmI m doMsa in vritt^ • ■iiiyk Botomarwi.* U !• irf mmtm ^to potottte tha • Aw of Uw lMfa«l atooac iht «tMO war al Us« har« aiadted •«»■ bools «f Imm, Si AUbdto (ah. 7(«| lyato •• tf b* t^d 4om w in » btlw pvtBtod bjr Wtiartoa, Aaglia Swn. nL 0. ^ «. aaJ b? J«a4, MdaiBiiia Mofaarliaa, It. Oa tU> m« tmi^^, flihtahb 4m mhi^m SmM*, a. «,
4
':^^f-'
ItUroduction, xzxiii
of RomaD institutions in Britsdu are really of this kind. Such are for exarnple th^ foims and phraees of the Latin cbartei« or land-books that we find in the Cod& XHploTnatiGus. A di^cult queation indeed is raised by these continental materials on their own groand, namely, what proportion of Otirmanic and Fiunco-Gallic usages is of Homan origin^ Mid how far those piarts that are Roman are to be ascribed to a eoufeiiiaoiui life of Roman institutioiis and faafaite in the ontlying pmruioes oi die empire, more especially in Qaul. Morovingian QmiI haa been, %ad fi>r a long time to.comc^ is likely to be, the iMttle-field of scholars, some of whom can see little that is BoiiMm, some little that is Qermanic Interesting as these ffoUems are, they do not &U within oar present scope.
A lorthor importation of more suctden and masterfiil bshum oaow wiUk the Norman Conquest Not only bad the Normans leant a Bcanance tongue, hut the dukes of Normandy had ack^>(ed the (^cial machinery of Frankish or French govem- iBsnt, including of course whatever Roman elements had been tafcoi up by the Fianks. Here, again, a remoter field of inquiry Ues open, on which we do not adventure ourselves. It is enough to say, at present, that institutions which have now-a-days the most homely and English appearance may nevertheless be ultimately connected, through the customs of Normandy, with the system of government elaborated in the latter centuries of the Roman Empire. The fact that this kind of Romanic influence operated chiefly in matters of procedure does not make it the less important, for procedure is the life of ancient law. But this, it need hardly be remarked, is a very different matter from a continuous persistence of unadulterated Roman elements. It may be possible to trace a chain of slender but unbroken links from the court of our William or Henry to that of Diocletian or Constantine. Such a chain, however, is by no means strengthened by the fact that Papinian was once at York, as it would in no way be weakened if that fact could be discredited.
Soon after the Norman Conquest a new and a different wave of Roman influence begun to flow. The first ripple of it reached our shore when Lanfranc the lawyer of Pavia became the Conqueror's trusted adviser. In the middle of the next century it was streaming outwards from Bologna in full flood. Hitherto we have been speaking of a survival of Roman law in institutions
XXXIV
Jntroduction.
oad babita and cnatoau; what we have now bofurv in it of another kind, a scholarly revival of the claadcal Romaii law thai U4 Ui be found in Jusfcuuaa'fl booka. Of this wo b*T« ■pukeo at mmt length in varioQS parts of our work. For about a ooDtury — let ua my between llAO and 12A0 — thix tide via Hhnping ruid mixlifying our Knglwh Uw , uud wt.* have thed iu k«ap beftm* the eyt* of uur readeru iho ((tientiou — to our mind on* of the oentnl ijUfMtionji of Gnglixh hiJitor/ — why tile rapi<l and, to a finit glan»f, overwhelming flow of Romanic leaming was followed in thia couutrr hy an equally rapid ebb.
At a later time yot other Roman d«auati b^an to make their wny idIo our 9)'Htcm thrtfugh lh« equity adminiatefwd hf the chnitoellor. But of tbme we sbatl not «p««k in thia book, lor we shall not here bring down the atory uf oar Uw beyimd tbo time when lirflwani I. began hi* inemombUt refimna. Our WMon for stopping ot that momcut wc can give in a few wunU. So ooDtinuous haa bren our Eiiglijih legal life during the Uat •iz ocntnriea, that the law of the later middle ag« haa iww bora ibf^ten among ua. It has never paased utterly ODt«de the eogniiance uf our cnarta and imr practirii^ lawyon. We have never had to diHintcr and reconatnict it in that hiborioaa and tentAtive manner in which Gczman hialoriuut of the pmitH day have dismtened and remnatiucted the law of medtentl Oennaay. It haa never been obliterated by a wboleaale 're- ception ' of Roman law. Blackotone, in onler that he migbl expuuml the working U&w of bia own day iu an intelligible 6whion, waa forced at every turn to take back his readef* bo tbo middle agve. and ovi^n now, after all our refomui, nur oourU are atill hma time to time oonpcUed to oonatme atAtutea of Edward l.'a day, and, werv Parliament tn repeal aomi* of than •tatutea and provide no subetituti*. the whole edifloe ofonr laud law would fiUI down with a cnuh. Therefore a tndition, whieh is in the main a sound and truthful tradition, haa been mato- tained about w murh of Kngliah legal history aa lies oa this ■de of the reign of Kdward L We may find it in Hlarkatnne ; «e may find it in Reeree; we amy ftod many iiortions of it in various practical texl-booka. We are beginning to diaoover that it is not all Ime ; at many puints it hna of late bean cumwlad. Its beeetting sin is that of antedating the eiaeigmoe of modern ideas. That is a fiiult into which every prufisseimal tradition ia
4
Introduction. . txxv
WOBA to 60. Bat in the main it is tnxthful. To this most be added Idia* as tegax^ tiie materials tot tiiis part of oar histoiy V« ataad veiy much where Blaokstone stood. This we write to oar ifaanM. The first and indispensable preliminary to a better legal hirtoiy than we have of the later middle agee is a new, & nnmpliito, a tolerable edition of the Tear Books. They shoald faa oar s^oiy* £» no other ooantry has anything like them : they am our diiigraoe^ tor no other ooanby woald have so neglected tbem.
(te tte oUier hand, as r^iards ^e materials which come fipom a slig^tily earlier time, we do not stand nearly where Bbeksfame atood. The twelfbh and thirteenth centuries have been fiirtnnate in oar own age. Very many and some of the beat and most aatbentic of the texts on whidi we have relied in tte lUlowing pages were abeolately unknown to Blackstone and to Beevea To the antiqaaries of the seventeenth centtuy high praise is dae ; even the eighteenth produced, as it were oat of doe tim^ one master of records, the diligent Madox ; but at least half <^ the materials that we have used as eources of &>t-liaiid knowledge have been published for the first time flinoe 1800, hy the Beoord Commissioners, or in the Bolls Series, or by some learned society, the Camden or the Suitees, the Pipe Roll or the Selden. Even white our pages have been in the press Dr liebermann has been restoring to us the law-books of the twelfth century. Again, in many particular fields of old English law — villeinage, for example, and trial by jury and many another — so much excellent and very new work has been done by men who are still living, by Germans, Frenchmen, Russians as well as Englishmen and Americans, and so much of it lies scattered in monographs and journals — we should be ungrateful indeed did we not name the Harvard I«aw Review — that the time seemed to have come when an endeavour to restate the law of the Angevin age might prosper, and at any rate ought to be made.
One of our hopes has been that we might take some part in the work of bringing the English law of the thirteenth century into line with the French and German law of the same age. That is the time when French law is becoming clear in Les Olim, in Beaumanoir's lucid pages, in the so-called Establishments of St Louis, in the Norman custumal and in many other books. It is also the classical age of Qerman law, the age of the
XXXV}
IntroiluctiftH,
ftwhwntpSegel We bare been teying to do for Esglinh Uw what luu within late yean been done for French and Oemaa law by a boat of acfaolara. We have often had before our minHa the queation why it is that syitenu which in the thirt«cnlh cental^' wore bo near of kin bad ftiioh differeot &lea before tben. The aoBwer to that quertion is aaeuredly uot tu be given by any baafcy talk about national character. Tbo tintt atop towards an aniwer mnit be a careful atatement of each Byiteoi by itaolf. Wo must know in isolatioo the things that arc lo b« cunipan?d bi'far«> we oxn]mre fcbem. A riiiuII aharv in this pn^liiiiitiory labour w« have tried to take. Eu^litthmen sboiild absndon their traditional belief that from all time the eon- lineatal nations have Ixn-n ruli>d by ' the civil law/ Ihey sbooM loam how slowly the rcudvutnl Roman doctriue wurkad ita way into the jurispnidenco of the parliament of Paris, hnv loof[ daferrtid was * the practicad rec4*ptiiin ' of Roman law in Oermany, how exceedingly like our common law once was to a French ewttHntt. This will give them ao iuteuser intetvst in their own history-. What in mora, in the works of Freneh and Qemuui me^lievalisU they will Dow-a-dnyt find many an inralo- abie hial fur ihu nolutioa of Hpcnnfically Kn(;li)ih imiblums.
We have left to Constitutional History the field thai ah« has appn>|(riat«<L An eiaei delimitation of the ptoripce of lav ihat Mboulil bu called oomcitatinnal rauat always be dlflksalt» «io«pt perii^ta in such modem ttataa at kave writtou conatitO' lions. If we torn to the middle ages we shall find tbo task itDpoaaible, and we see as a matter of fad that thn hifttoriaos of our ooQstitution are always enlarging their boundsriea. Though primarily interetitfil in such parts of th«t law a« an* ludnbitably MOstitutional, thay are always dtscovoring that in order to exptain tbaae they are compelled to eiplain otlnr parta alaa They can not write about the fpowth of parliament without writing about the law tif land Irnore; 'the liberty nf ikm ■uhjwt' can only be manifested in a disoounw on dn) and criminal ()nxvdun% It may be cvxaigb tharefon if, witboat any auampt to establish a seaantifie t^tior, we tiwiUH thai we has* kvpl dear of the lanitoiy over whieh they axeRiBe aD •fledive dominion. Our nsason for so doing is plain. Wa bare no wish to say over again what the Bisbop of (Hfiird has admirahly said, no hope of beiag able to say with any tmtli what he haa li-fl unMid Besides^ for s long time p^at. ever
I
Introduction, zzxvii
the di^ of Selden and Fiynne, many Engliahmen have Veeofy mfeereBted in the hisfecny of parliament and of tmrrtrTi and of all that directly oonoerns the government of tike mdm. If we conld persuade a few of them to take a simUar mtewit in the history d ownership, posBesaitm, contact, agOBi^, tnuAf legal proof and so fwth, and if we conld bring l2ie hiattMy of these, or of some of these, matters withib it moaaniaMn distance of that d^ree of accaracy and completion vhidi oonstitntional hist(»y has attained in the hands of Dr Stobbfl^ we should have achieved an unlooked-for success. At the aame time, we shall now and again discuss some problems with whidb he and his predecessors have busied themselves, tat we think HtuA tiiose who have endeavoured to explore the private law of the middle ages may occasionally see even in p(£tical events some clue which escapes eyes that are trained to kxdc only or chiefly at public affitirs.
The oonstitntional is not the only d^nrtment of medieval law that we have left on one side. We have said very little ot purely ecdesiBstical matters. Here again we have been ooB^pdled to draw but a nule boundazy. It seemed to us that a histwy of English law which said notiiing of marriage. last wills, the fete of an intestate's goods, the punishment of criminous clerks, or which merely said that all these a£faira were governed by the law and courts of the church, would be an exceedingly fragmentary book. On the other hand, we have not felt called upon to speak of the legal constitution of the ecclesiastical hierarchy, the election and consecration of bishops, the ordination of clerks, the power of provincial councils and so forth, and we have but now and then alluded to the penitential system. What is still the sphere of ecclesiastical law we have avoided ; into what was once its sphere we could not but make incursions.
At other points, again, our course has been shaped by a desire to avoid what we should regard as vain repetition. When the ground that we traverse has lately been occupied by a. Holmes, Thayer, Ames or Bigelow, by a Brunner, Liebermann or VinogradofiF, we pass over it rapidly; we should have dwelt much longer in the domain of criminal law if Sir James Stephen had not recently laboured in it. And then we have at times devoted several pages to the elucidation of some question, perhaps intrinsically of small importance, which seemed to us
xxxviii Introduction.
difficult Rnd iiucxplonK] and worthy uf patient diocussion, for such iH the intcrde{>oii(leiiee of all legal ruleH that the RolutiuD of rfuinu vital problem may occasionally be found in what IooIch at first si^ht tike a technical triHe.
We have thuuf^ht k-asof symmetrj* than of the advancement of knowledge. The time for an artiHtically balanced picture of English medieval law will come : it has not come yet.
BOOK I.
SKETCH OF EABLY ENGLISH LEGAL HISTORY.
CHAPTER L
THE DAKK AGE IN LEGAL HISTOBY.
Such ia the tmityofall history that any one who endeavoazBTh* as* to tell a piece <^ it must feel that his first sentence teans a {jy,!])^ BMunlees web. The cAdesb utterance of Knglish law that has oome down to us has Qze^ words in it : words such as 6uft€»p, pnmt and deaconK If we would search oat the origins of Boman law, we most study Bal^lcm: this at least was the <^»i&i(Hi of ^e great Romamst of our own day*. A statute of limitations must be set ; but it must be arbitiBzy. The web must be rent; but, as we rend it, we may watch the whence and whither of a few of tiie severed and ravelling threads whidi have been making a pattern too large for any man's eye.
To speak more modestly, we may, before we settle to our proposed task, look round for a moment at the world in which our"*™"^**' English legal history has its begimiings. We may recall to memory a few main facts and dates which, though they are easily ascertained, are not often put together in one English book, and we may perchance arrange them in a useful order if we make mile-stones of the centuries'.
1 £thelb. 1.
' Iheriog, VorgMcbicbte der Indoenrop&er ; see especially the editor's preface.
■ The following Bammary has been compiled by the aid of Earlowa, B&. miscbe Baohtsgeschichtet 1886 — Krilger, Oesohiobte der Quellen des rdmischen Beebta, 1888 — Conrat, Oeschiohte der Qaellen des rdmisohen Bechts im fruheren HiUelalter, 1889 — Maassen, Geechichte der Qaellen dea oanonisohen Bechts, 1870 — Uning, Geschichte des dentsohen Kirchenrechts, 1878 — Sobm, Kiroben- reebt, 1892 — HioBcbins, Syatem des katbolisoben Eirohenreobta, 1869 ff. — A. Tardif, Histoire des ■onroee da droit caoonique, 1687 — Bixinner, Deutaobe Becbtageschichte, 1887— Schroder, Iiehibnoh der deatHchen BechtBgesobiohte, ed. 2, 1894 — Esmein, Coars d'hietoire da droit fran9ai8, ed. 2, 189J;— Viollet, Hiitoire da droit civil fran^ais, 1893.
P. M. I. 1
7^ dat'k age in legal kUtory. [bk< 1.
TW
(^IW.
By the year 200 R*inmn jnrispniili'nco hiu) rcAchvcl iu sciiith. Pnpinttui wiu ftlaiu iu 212', (Tlpiaii iu S3H*. UlpMn'jl upil Mutltri«iitiUM nwy be nocoimted the Iaai of the giMl lawyers*. All t<M> sonn they bof^mc clniMigal; tb'ir ttucoMBon were loukingTmckwAitlii, not furwimlH. Of lh<^ work Lh»t hod boeo dunt; it wviv folly here Ui ^t^ak, but the law of ii litUo /town hwl iNM^imt^ ocumnnicnl law, law alike for cuUuriMi (JrMOS R«tid for wild Britiiiu. Aiul yet, though U bad ajydmiktod now matU'r oud UfW idL>aA, it ha<l alwaya preaervod ita tough idantity. In the yoor SOO six centuries ood a half of definite legal history, if wo rneasuro only from the Twelve Table«, were cooaoioutJy sununod up iu the living and growing body uf the law.
Diipgent lay ahead. We ncAJoe one in a humble qoarier. (^rtain rnligioun Micietioa, ooi^fr^{»ticnu {tecUtioM) ot tton-««i* fbnnistit. have Ikh'M developiiif^ law. tntemal law. witb ouuuoua nqiidily. We luve called ii law, oud law it wwt guing to be, ^""ttbl Ns yd it was, if the phrase be tolenkblc, uiilawftil law. for tbew •odeties had an illegal, a criminal purpow. Spasmodically tbe imptoial law was eubrcvd egoinst them ; at oth«r iimea the utmost ihnl Lhey couUl hope for from the stAtv was that in tbs goiie of * benetit and burial societiea ' they would obtain HNiia pnleotuiii for their oomrannal property*. But inlmially thtf were developing what was to bo a Mynicm of coiuftilntiunal atKl govenmwnUl law, which wonki endow the ontnear {tftitmpta) of every cougn^gation with maiiilbld powen. AUn they were developing a syxUim «f punitive law, fur tho uffrndor might be ejcoludcd from all particifMtiou in nOigioua ritea, if not from Worldly tutrmmnte with the faithful*. MonHiver, thute varioua oommunitictn wnn; becoming united by boiiiU that wore toe dose to be fcdi'raL In particular, that one of ibirm which had its seat in the oapitnl city of the empire was winning a preeinioeooe ibr itself oad iU uveraevr*. L>ng indoiil would it be
I
■ Krfl««.o^sii.lU| Ksriswa.sf.dl.LNI.
* Kf«ff«. sf. cH. *Mi Urtmn. sf. all. i ftl
• KAtbW. op. ML 1. IM 1. 1 HohsL Of. dt 71. iJK^at unrt* UiM (n llw tal«T«k Wtwav Um anlhwals ot fswwiUca llw ffcrirtiss aoMMUBiUM wmm
■■ ^tUrftm ttmiwrtm* ssfobfe sf Mtfag favfrnij.
* KuaemattinUon «T«dasllr awaw It* fcafwMlsf MMa ««t« prolkMlid. skdU M7«i lit* Ult7 •«* so*, tnm hMta$mm uftii^w. litalse, op. flH. L »4| tHMdiliM. op. «a. ft. KM. ,«fkrfK.ff»ff.; Ltetec,apkCll.Ltfil.
oeiBn^^^i
cB. Tu] Hie dark age in legcd History, 3
Aia orenoet ctf a non-confinniisfe congr^ation would, in the penun oi his saoceaeKn', place his heel upon the neck of t^ pRNtnte Angostiu by virtue of Ckxl-niade law. This was not to be loreseen ; but already a merely iiuman jmigpradenoe was loiiiig its intoest The intellectual foroe which Bome yeacs «iriier might have taken a side in the debate between Sabinians wd iVoeufiflnt now in^^nted or refuted a chiistologitail heresy. Ul|iaan's {wieethood' was not prieetly enough*.
^nie decUne was rapid. Long before the year 300 jnxi»- ]radenoe, ^e one science of the B(Mnaas> was stricken witii p«m^ flteriHty*; it yas sharing the fitte of art*. Its eyes wwe tumea ^^^^_^^ badcwanfa to tke departed great. TRte constitutions of the oaperonxiow appeared as the only active source of law. They were a disudered mass, to be collected rather than digested. OoOeetioiis of them were being unofficially made : the Godeas Qmroriamu. the Codex Hermogenianm. These have perished; they were made, some say, in the Orient*. The diifting east- ward of the imperial centre and the tendoicy of the wmrld to frU into two halves were not fw the good of the West. Under one title and another, as coloni, laeUj gmitUea, large bodies of\ untamed G^tnans were taking up their abode within the Umity of the em[nre'. The Roman armies were becoming barbarous hosts. Constantine owed his crown to an Alamaonian king'.
It is on a changed world that we look in the year 400. Cant. iv. After one last Hare of persecution (30.3), Christianity became a sti^ *" lawful religion (313). In a few years it, or rather one species of it, had become the only lawful religion. The 'confessor' of yesterday was the persecutor of to-day. Heathenry, it is tme, died hard in the West ; but already about 350 a pagan sacrifice was by the letter of the law a capital crime". Before the end of
> Dig. 1. 1. 1.
' The moot qaestion (Kriiger, op. oit. 203; Kartowa, op. oit. i. 739) whether the Tertallikn who is the apologist of Gbriatian sectaries is the TertoUian from whoM vorks a Caw extracts appear in the Digest may serve as a mnemoDio link between two ages.
' KrOger, op. oit. 260; Earlowa, op. cit. i. 9S2.
* Gregorovius, History of Rome (transl. Hamilton), i. 85.
■ Krager, op. dt. 277 ff. ; Karlova, op. cit. i. 941 fl. It is thonght that the OTiginal edition of the Gre^orianas was made about a.d. 295, that of the Hermo- genianns between 814 and 324. But these dates are uncertain. For their remains aee Corpaa luris Anteiostiniani.
' Bnmner, op. ott. i. S2-S9. ^ Ibid. 38. * Loning, op. cit. i. 44.
1—2
The dark age in legal ki$tory. [i
thii ccntiirr cnii>1 xUttitvM were U'liig made Mgrnioat herelica i>f 111) jMwti* mid kindi*'. No wnpiier wnfi \\\t> new faith lawful. Lhiui the utAU* wiut 0(lmtK>ll^d to take port ia the multilknoiM i|iiiintdM or thti (.ThriiiLiim.'i. Hardly bud Cotutautiue issued the edict wf l«I(*nuic<', thau he was siimnioninf^ the bishnps to Aiiea (314), even fntm remote Britain, that they might, if tbiit were pcjwible, mukc |M<Hce iu the church uf Africa*. Iii ihv history of law, AS woll as> in the histor)' of dogma, the fourth centniy ta the c«ntiir^' of coolcoiiiatical coimcila. Into the drlNit«« uf tbt* ffpiritual fiarlmnieiita of thu empire* go wliatever jtiriflttc ability, and whntevor power of organuEatiou arv left otnong numkitid. The new pti|ipnmtuml jnnxprndenco waa finding aooibor mode of utti'nmce; the bifthup of Rome waa becoming a IqjpaUtor, / J>tri»pa a more important le;|fi«lator than the emperor*. In 380 Theodomnn himwolf cnmniiuidiil that n\\ the {H'opli-?* whtch owned hia nway nhould follow, hot merely the n-ligion that Christ had delivered Ui the world, but the religion that Si P«t«r had delivcrod to the Ramans\ For a diacipUnory jurtMlictioa over clci^ and laity the stAte now letl u large room whenua the biahopa ruled* An arbitratora in purely aectilar dii^taa they were active; it ia even probable that for a abort while under Comitantine uoe Uligaut might force hia advaiaaiy an- willingly u> seek the episcopal tribunal*. It wma wammry far the atate to protcat thai criminal juriadiction waa atill in ita i". Soon the ohurcb waa demandiny, and in tfao Waal it might auocosBfiilly denaad. indepeDdenee of tbe ataU and atan a dumiuanoa over the atate : the church may coRunuid MmI tbe atate must obey*. If &um one puint of view we aee thia as a trinmph of anarchy, from another it appean urn a
> LoRuia, op eti. I. VT-M. PMfeaM M MMiM friMB S7 ;«an (n»-ai). ■ llaMa, OBa<nt«i^M»ilthH. L «l. Fof tii> iiiumii of iht BrttM Mthopt. «• Haddu uid StaM*. Coandb, L T.
* lah^ ofL ait. 4U: •' ■ .^_ -,-^ ... _ ... ^. , - f , in ,
rfa pinUAat Fariaaww Am Kalxvtaaift.'
* Sokai, 19. flit. «U. If a fnuto data mar h- fliad Ui • ««rr gniaal ff 0 DIM, «• mats pwhqw •■• 1^ >■» manim ol kcMulr* fvmm ia iha dMNtd (*.». aai) of t>«f» SWcim
» Cod. Tbw4. ]«. I. S.
* LAalbi. «^ ail. 1. Sllt.i HlAMUaa. mp.vA.kw. TMff.
* LtaiBf. op. dL L »t: Kattow*, ofL di. i vat. Tim dvpM^i m iW
Uafacap.rtLi.nii alBHbl■^ ap. dL If . TM.
, ap. m. L ti-M.
i^rr^v-
€R. X.] J%e dark ctge in legal history, 5
■
triam]^ of law. of jonqorndence. Theology itself must become jutiqwudenoe, albeit jurispradence of a sapematural sort, in cfder that it may role the world.
Amcmg the giganloc events of the fifth centuiy the iasae of owt. ▼. a stetnte-book seems small Nevertheless, through the turmoil aJS^*^ we see two statute-books, that of TheodosiuB II. and that of '^°'*- Borie the West Goth. The ThflodosJan C?ode_waB an official ool- lertioD of imperial statutes beginning with thme of Constantine L It was iasaed in 488 with the ccmsent of Valentinian III. who was reigning in the West No perfect copy of it has r^ched tu\ This by itself would tell a sad tale ; but we remember bow rapidly the empire was bdng torn in shreda Already Britain was abandoned (407). We may doubt whether the 8fcatatfr-bo(^ of Tbeodoeios ever reached our shores until it had been edited by Jacques Qodefroi'. Indeed we may say that the fiUl cf a loose stone in Britain brought the crumbling edifice to the gioond*. Already before this code was published the hofdes of Alans, Vandals and Sueves had swept across Qaul and Spain ; already the Vandals were in Africa. Already Borne had. been sacked by the West Qoths ; they were fouiuling a kingdom in soatheni Gaul and were soon to have a statute-book of their own. Gaiseric was not far off, nor Attila. Also let us re- member that this Theodosian Code was by no means well designed if it was to perpetuate the memory of Roman civil science in that stormy age. It was no 'code' in our modern sense of that term. It was only a more or less methodic collection of modern statutes. Also it contained many things that the barbarians had better not have read ; bloody laws against heretics, for example.
We turn from it to the first monument of Germanic law Laws of that has come down to us. It consists of some fragments of ""*'■ what must have been a large law-book published by Euric for his West Goths, perhaps between 470 and 475*. Euric was a conquering king ; he ruled Spain and a large part of southern Gaul ; he had cast off, so it is said, even the pretence of ruling
I Krae«r, op, cit. 285 fl. ; Karlowa, op. oit. i. 944.
* The BrerUry of Alario is a different matter.
* BtU7, History of the Later Boman Empire, 142: 'And thos we may say that it was the loss or abandonment of Britain in 407 that led to the further loM of Spain and Africa.'
* Zeamer, Leges Visigothomm Antiqoiores, 1894 ; Bmnoer, op. cit. i. 320; Sehr5der, op. cit. 280.
2%e doHt agf in legal hUtory, [bk. !»
in the omperar'i tuunc. K«v«rtbpUw, Km bws an not aemtiy BO barbofoufl u our cuhoHity might vruh ibem to be. ThcM Went Ootho who hnd wandorod acrom Europe were v«ne«red by Ronuui civUixatino. U did thtint little good. Their IaIot Uw- books, thiU of ReckcaniiiUh (052-072K ihnt of Krwiff (682>. that uf Egica (687-701) ore wiid to be rerbo«e and Aitil« iuitatiuns uf Kuman codes. Bui Eurtc's laws an mifficipol l<» mniod us thRt thi* urdvr uf datu auioiig these Ittpm ifcirAurvnwm u very different from the order 4>f barbarity. Scatidiiuinan UwB thiU are not written until the thirt^H'nth et'Dttiry will nden give n» what is more archaic than an\thing that drtne* (rnni the Oaiil uf lhi.< tiflh or tho Britain of the HcreDth. And, oa the other hand, the mention of Uotha in Spain should rcmtwi OS uf thuoe wondruufl fulk-wai»dann)pi and of their atimngv tnflueooe upon the legml map of Eim>|K\ The Saxon of Engbad halt a chme conirin in the t»nibard <if Un\y, and modem crilin profem thnt they oon ae« a specially uear kuuhip betwoen Spauiitb and Icelandic law*.
In IcRiU hiMton- 1 In* Kixthci>ntury is tlie century of JuMtinian. But, in thi- went of Kiir<ijR> thin agr aiqsoanf a> his, uiily if mr take iutu acoount what waH then a remote ftitnni. How power- ten he waa Ui Ugialate for many of the laodt and ncm whaoM be drew Ua gfandiow txtlwi — AlamantMiu, Ocikiema, Fmaekm$ and the rait — we flball tee if we inquire wbo etiH* had bean publishing liiWH. The harbariana had bwn w-riting dnwn ihrir miMUimo. The barbarian kingn hail bceu uasuing law-bu»bi fur their Koutan rabjeota. Bookh of eceteai— rieal law. of eonciliar and pap<d law, were being eompiled*.
Tbo diaoovety uf fraguienlh of the Uira of Euric the Wiaat (ioth baa deprived the Imp Salica of itH claim to be the nlifaal extant atatenani of Uermanic ouftam. But if out the okltwt, it u atill very old; alao it ia rude and primitive*. It conH.-* to u» fhim tbe marob between the fifth and tbe «ixth rvuturu?* ;
rUMr. 0«hw mkmn ir«ia>M>lillilliiifcBi
• riahw. DDtanaohaaan mr Brkmft)l«», 1^1-4; TcnwidlMliaft iwlHlna >Bihh<h tfutimhmm aorf * BkM (ICillwnaMM 4m luUtmlm Mr ■rtiiiiliililiibi OiiitilnimaiiliMa. Uaa. a 4Mfl.>. Dmm ftUMrai lo MinnWH Ih* fWlnp or Iha ntiam Owaaii ■jrtaa* an ««t7 tiilailin. If Iwaarfw
• For • n*r td Banips u IIm ttas of JmiIwIib'* litl^lHa Mi WnMla. ttoly aaJ b» laniMa, mL It. p. 1.
• mmamm^ ap. dL L tH 0. t 8flbt«te, of^ «ii. IMfl. : «MMttt, «p. «h.
iMi.i rill rri riTiiii inniiMaH i n — i umbi* aw E«ra, lm
fiO. z.] l%e dark age in legal history. 7
almoafc sertainly from &e victorious reign of Ghlodwig (486- 411). As mttoapt to fix ite date nuwe dosely lnin£p9 oat (me of Its mtoresting tooito. There is nothing distinctiTely heathm in it; bick (and this makes it uniqae*) there is nothing distinctively fThHsliiii If the fficambriaa has ahvady bowed his hbA. to "tiie oatikcdio jti^t he is not yet actively destroying by his laws «faal ha had Ibrmoriy adored'; On the other hand, his kingdom to streteh sooth of the Loire, and he has IbcdEod fi>r to tits laws of the West Oo^is. The Leas SaUoa, ikm^ irr^toi in Lstin, is very freer from tlw Boman taint. It wwnWins m tiie so-ctdled Halberg glosses many old fVankish 'WonH aoBie of wfaichi owing to mistnuucription', are pusles tot the ^^iloldgical adenoe of our own d^. Like the other Ger- •mmaie Ibik-laws, it otmsista largely of a tariff of oflfences and atamaaeots ; bat a few preqioas ohaptera. every word of whidt has beoD a cause of learned strife, lift the cortkin for a moment ' and aBow ns to watoh the Frank as he litigates. We see more dsai^ir here tiiau elsewhere the formalism, the eaonuuental ^mbcrfism- of ancient 1^^ prooednre. We have no more in- rtmetive dooament ; aikl let os remember that, by virtue of the Ncnaaa Goiqaest, the Lw 8<Mea is one of the ancestors of English law.
Whether in the days when Justinian was legislating, the The Lex Western or Ripuarian Franks had written law may not be and Lex certain ; but it is thought that the main part of the Lex f^^^" £»6uaria is older than 596'. Though there are notable vari- ations, it is in part a modernized edition of« the Salica, showing the influence of the clergy and of Roman law. On the other hand, there seems little doubt that the core of the Lex Bur- gtmdionum was issued by King Oundobad (474-516) in the last years of the fifth century*.
Burgundians and West Goths were scattered among Boman The Lex provincials. They were East Germans ; they had long been bm^- Christians, though addicted to the heresy of Anus. They could ''**^""-
I However, there are Bome ourions relics of heathenry in the Lex FriMionum : Bnnmer, op. oit. i. 342.
' Greg. Tnron. ii. 22 (ed. Omont, p. 60) : ' Mitis depone oolla, Sicamber ; adora qood inoenduti, ineende qnod adorMti.'
s Bmimer, op. oit. i. 808 fl.; Schroder, op. oit. 229; Esmein, op. oit. 107. Edited bj Sohm in M. O.
* Bnumer, op. oit. i. 882 fl.; Sohrdder, op. cit. 234; Esmein, op. oit. 108. Batted by ▼. Salia in H. 0.
8
The dark age in legai hUtoty. [bvl V
my thai thej' had Roman KUlhority for tbeir cwciipKlioo of RonwD soiL AquitAnia Seoundu had been made orer to fcha WflVtOotha; the BurgundbuiB vuiquithed by Antiun hu) bc«9a deporC«d to Savoy'. lu lh«ir wixiirf of liuiiU fnim tlu* Huinaa /WMottonet Hwy had followed, though with modt6oatioo« that ware profitablE) U> themw^lvc^, the RomAn i|yid«in of billrtting barbariaa soMii'iv'. Tfaon wore mnny Kopiani am wpU an many hairhari for whom their kiiiga c^nitd Icgi)Uat«. Heno« tho Ldx Romana Surgunfiionum and tht< Ler Homitna VigiffotAorum, The fonnw' aeeiitM u> K* ih<' law-bonk that Giindobad prdiniMd to hu Roniou Hubjts:ti4; hv diixl in 516. Rtihw havp bncn tak«n from the three Roman codices, frrrni the ciirrvat nbriilgi-inenu of imperial conNtitutionN and from the wnrk.H nf (iftiiin and Paula*. Little thai itt giMMl haa been said of this bituk. Far root* c(im])rehetiAivo nnd far ntore important wu the Breviary of Tw /^v Alaric or Lej: Jiomana V'isigothcrum\ Emio'fl aon. Alaric It., Win09- publiahed it in 506 «• a statute-book ; among the Bumiani of '**'**' hifl realm it was to mipplaot all older books. It oontaiiwd Uvge cxcvr^ trom Uw Theodonan Codex, a fisw from the Qnyon'— ■ and HtrmogmuoHug, aome poat-Theodoaian cooatitntioMi, aon* of the Senten^at of Faulua, one little scrap of Papinian and an abridged venion of the Inatituten of (laiua. The greater pari of these testa waa equipped with a running oMnmentary {wtm-prHaUo) which attempted to give their upshot in a more intelligible form. It is thought nnw-a-ilaj-n that thU 'inter- pretation ' and the aorry vnaion of Uaiua rvpreaeot, ooi Qothio barbarbiu, but degenemte Bocnan aeieaeo. A tinw bad aocu when lawyer* could no longer undervtaod ifaeir own old tcxii and were content with debased abridgemenia*. ^^ The West Ootha' power was dL-climug. Hardly had AJatie
?*j^iiroed his statute-biwk when he waa slain in battle by the Fmnka. Soon tbe Visigothic bseama a Spantah kingdom. But it was not in Spain that the Brtmmnmm nnde ils pema- nvnt mark. There it was abrogated by Reckesaainth when he iasaed a code for all hia aubjects of every race*. On the other hand, it struck deep root in QaoL It became the priocipal, if
, Hi,„, «|L lit L 40-1
• !■«■«. ofk Mi. tlTt Ullid hy «. 0alb ia It O
Kattoaa, Of. dL 1. fit.
■ 1M4.M-7. Of. €il. L U«;
UBL I.] l%e dark age in legal history. 9
not the only, representetiye of Boxoan Uw in t^e expansive zmIdb ni the TPnaikB. But even it was too bnl^ for men's neediL Thiey made epitomee of it and qntomee of epitomes^
Tbaa, ^gain, we most remember that while Tribonian was The Im^ npon the Digest, the East Cloths were still masters of tiuo-^ liaif. We xecall the event of 476; one emperor, Zeno af'*"*^ BymtOiam, was to be enoogh. Odovacer had ruled as fatrioian -aikl king. He had been conquered by the East Ckvtfaib The great Theodoric had reigned for more than thirty yean (4i9S-fia6); he had tried to fuse Italians and Goths into one BatHm; he had issued a considerable body of law, the SdieUtm Huodorieit for the more part of a criminal kind*.
Lastly, it most not escape ns that about the year 500 there Th« , in Borne a monk of Scythian Inrth who was labonriag upon ikioiit.
the fcwndiAionB of tiie Oorpus Iwria Canomci, He called himiinlf Ditmysiiu Ezigau& He was an expert chronologist and eoMtmeted the Ditmysian cycle. He was collecting and tnmslating tiie canons of eastern councils; he was collecting also aome of the letters (decretal letters they will be called) tiiai had been issoed by the popes from Siricius onwards (384- 486)*. This CoUeetw JHonynana made its way in the West Some version of it may have been the book of canons which our Archbishop Theodore produced at the Council of Hertford in 673*. A version of it (Dionysio-ffadriana) was sent by Pope Hadrian to Charles the Great in 774^ It helped to spread abroad the notion that the popes can declare, even if they can not make, law for the universal church, and thus to contract the sphere of secular jurisprudence.
In 528 Justinian began the work which gives him his fame Juatinian's in lefflil history ; in 534, though there were novel constitutions to come from him, it was finished. Valuable as the Code of imperial statutes might be, valuable as might be the modernized and imperial edition of an excellent but ancient school-book,
' Ths etntomes iriU be foond in Hinel's edition, Lex Bomana Visigothomm, 1849.
* Bmnner, op. eit. i. 36£; Karlowa, op. oit. i. 947 fl. Edited by Blnhme in U.Q.
■ HaftHen, op. dt. i. 4320.; T&rdif, op. tat. 110. Printed in Migne, PatndoKia, Tol. 67.
* Haddan and Stnbba, Coancila, iii. 119. See, however, the remarks of Mr C. H. Tomer, E. H. R. ix. 727.
* Uaassen, op. cit. i. 441.
10
TV <2ari: ag^ in legai hutory, \jau J.
th
work chiit he did for the
li
th«
1
loe
aTuttnlM
commg c«Dtuno« iow-a^>'A that in tho Oriont the oUadcftl :cu a uew Iwuw of life, eapooalljr id ihtf mAuanA nt Berytns^ Wc are told that thoro in jKniK'thiug of t remii— tncip. anmothing prea nf on aDtii|UArian revival visible ia Um pigM of the Uigwt, a dnira to go back from vulgar praetaet lo olaMMwl t«xt. abo a dann to display an emditiuo that ui not mlwajm yvTy Avey. Oreat oonqaoror, groat boilder, great theo^ logian. gnat law^vpr JiiKtini»n wotiUI alfKTEa a groftt maater of legal ndviioo and legal hi-^tur)-. The nanow etcapp q( hi* Digi^ftxim obli viotL u^mt^ to tell up that, bat for hui exertiona. wry little of the ancient trvanun- of wiMloni would havi' reached niodcru tiinrx : aud a world without the Di^«t w»ul4 pot ha,ire bfcti thtf wnrlil that "VE 'knViw. [jot oa, ttawever. remember the r hu book. The iiuf. the unenactcd
U>% < • ii^"i i'> ^tnw iiiK- uuudr«d yeanago. In. time Juatioian sundx itn &U- from the jnrinUi whow opinioM be cdleeta a* we stand from Coke or oven (nmi PitKhcrbiirt.
^ I^iy^ |yv^ need rfum* -'Tff^^BJr" knew it well. Uwh de|WDded npcw thettbrtgiw of % wi^ W« neall ftvm the lagtiiute* the boMt that AfriaTliMi toanrMbuiwd. Utak «m at stake tharo, for Africa waa doomed to the Sameeas; nor aouM tnutiient nioeeM io Spain weure a waetara home (or the law hooka of Bycanttum'. All waa at <<«fc« in Italy. Th* utmggle with the Eaat Oothii waa raging : Rjtop wa« n^iturBd nnd recaptured. At length the enysKV waa vkctuhou* (^SV, the QoUm were exterminated or eipelled ; w^ hear of them no more. -'■T*frr* '^^V IWir flfcim ^■» Uw» in ^laly and thi* he did by the pcmgmntio ■Mwtion pro fy* • - '' --' ".K* Fourteea yeani V0e~tnelapaa mn tbmt < <lei
under Alboin would be jxiuring down upon aa exhMiaCed and d0popahU4>d land. Tb-i- ** . t>n yearm arc critica] in legal hiatorjr^; they luffer <lii<^ <KxJti to obtain a lodgement in
the Weet>_ The c- il n; . .. r td^ hu jiaui_bM<ri^Kr Code and Digmi Jn Um dottructum of the Uotbie kingdom, in the tempore power of the pnpaey. and in an Italy uf r^r untt«d until our own day; but perhaps the prioo wait ri ^^T
Be that aa it may, the noinrid— re ia mamonble. The Utimau
laieiiii. vL «».
i KMfon, Of . «H. 1. Mil ni4^iii, lM|r
7%e dwh age. in legal Imtory, 11
mmpt^ eentced jjb New Boage has just strength enough to hand ^ iMeii to QUA Borne the gnardiftHship of her heathen jurispru- denes^ v/m 'eimoleated ' (as Justinian says) in a small compass, and then hiees for ever the power of lepsUting for the West. TVve that tbme is the dwindling exarchate in Italy ; true that the year 800 is still fitf off; true that one of Justinian's suo- cesioiu, Coastaatine lY., will pay Borne a twelve days' visit (668) and rob it of Mnaments that YandaU have spared' ; but witik iHA«t we mxoA call Qrssoo-Boman jurisfnmdenc^.with the Ktdoga ci I^eo the Isaurian and the Basilica of Leo the Wise, Uie West, if we except some districts of sonlJiem Italy', has no coQcssiL Ti>ro halves of the woarld were drifting apart, were >>««~»"'^g ipK»ant of each other^s language, intolerant of eatdk otfaei's theology. He who was to be the true lend of Borne, if he loatited the Lombard, lov^ not the emperor. Justinian had taii^t Pope Vigitins, the Vigilius <^ the pragmatic sancti<Hi, that in tiie ^jvuitine system the church most be a department ' of the state*. The Ush^ of Borne did not mean to be the head \ t)f » department
Dung some centuries Pope Gregory the Great (590-604) ^j^oLi. is one <tf tiie very few westerns whose use of the Dig^t can be ]»oved'. He sent Augustin to England Then ' in Augustin's day,' about the year 600, iEthelbert of Kent set in writing the dooms of his folk ' in Roman fashion'.' Not improbably he had heard of Justinian's exploits ; but the dooms, though already they are protecting with heavy bdt the property of God, priests and bishope, are barbarous enough. They are also, unless discoveries have yet to be made, the first Germanic laws that were written in a Germanic tongue. In many instances the desire to have written laws appears so soon as a barbarous race is brought into contact with Rome". The acceptance of the new religion must have revolutionary consequences in the
^ Oregorovias, History of Borne (trsnsl. Hamilton), ii. 153 ff.; Oman, Dark Aees. 337, 245.
' For Byzantine law in aoathem Italy see Conrat, op. oit. i. 49> ' tS* Hodgkin, Italy and her InvaderB, iv. 671 fl. : 'The Sorrows of Vigilius.' ^ -
* Conrat, op. oit. i. 8.
■ Bede, Hist. Eocl., lib. 2, c. 5 (ed. Flnmmer, i. 90): 'ioxta exempla Bomanoram.' Bede himself (Opera, ed. Oiles, vol. vi. p. 321) had read of Jottinian'B Codes; bat what he says of it seems to prove that he had never Men it: Conrat, op. oit. i. 99.
* Bmnner, op. <-it. i. 'J83.
12
T^e dark age in UffcU hUtory. [bk.
i»«f.
world of law, for it is likely that heretofore the tnditio—l customs, even if tht-y Kavo not been conceived u ttwlitotcd fay godfl whu un? now bc-coming devil*, have boon conceived •» eBMsntinllj uiialtcrablf, Iaw baa been the old; new law baa been a eoatradiction in tertm. And now about certain maliera tht-ro mvat be nrw law'. What is more, * the example of tba Komans' ehowfi that new law can be made by the inane of cominanda. Statute appean as the civilised fonn of law. Thns a frrmrntAlicm beginn and the itsult is bewildering. New reaolv4w arv mixed up with atatumuntB of old cust4.>Di in these Jj0ff€t Barharomm^
The century which mdn in 700 men aotao additioiw madta to the Kenti»h lnw« by lilotharr and Eadric. and norne othen mnilc by Wihtnt><] ; thert^ the Krntiiih ncricii endii. It almi fK'«4 in the dooma of Ine the beginning of written law in Wonex It alMo Ace* thn beginning of written law among the Lombaitk;' in 943 Rothari publLohi'd httt edict*; it is acouuted to be ooa of the beat stAtomentn of ancient German naagea. A little later the .Swabion-H have their L^x Alammmorum\ and tha Bavariami lh<--ir Lej- Haiuwanonim*. It ia only in the Kara- lingian age that writteii law appean among the tiurlbcni and i-tt)it''m fotlcA of Oennaoy, the PriaLuia, the Saxoiia, the Angti and WtuTii of Thuringin. the FrmnlcH of Hamalaad'. To a much Intor time mnal we regretfully look for tike oldcM TrioiiumentA of Scnndinnvian law*. Only two of our ' hcptarchic *
I TlM oUmI UvMaaio wwd Ikit UMwin to oar lor mmma to ha that •faWi mpfm^nmM A.-S. A. Thb won) Uvw on la oor Kafl. •jfotmgt («Vfv. (NM aS Utm|. It U Mul la Im eoftmi* u> Ut. mmm. 9m ttraww^ of. dL L 10»; iihiAte. e^ lit. StI; HahaiU. criiilii. AM; Oif. Kna. ttm. «. v. cf. |^ li«l^wB^wur. loa.alL: BihnU.ttl. HkaJf mU MUh* la mut i iW 4 or ibo K«lMi Mh by IMC aoaoM.
■ WhidMv wo b««o laaTt 0od> or only u IWillM imhmIhi of ii b » Haull siio»ttoe. Uloly iliy mn I fcy Tork. Li^al 0>Ak4 MUni {BaJh. im^
^4l.
> llrmBa«,e|i.dl.LMaiSAiflte.flp.clt«ta. Bttlrihy BtalMalalt.a.j
• Braaaar. o^ dl i MMi BcteMv. of . iU. SM. Bditai hf Itimiao M.O. ThfiMoftfialoofaftwf /^■■■■■■■boioiw.Wa TU Ua U MpfOMl to ooM* tnm 71T-«.
• Braunr, op. bU. L tU[ Bobtote. o^ oU. ttO, MiM li; Hfortal ia M. 0.j TUi lo a«« aiaHlnJ lo Um jmim TW-UL
•Braaaar. Of. dLL MOB.; SritfMv. Of. ^VMl^ BAnd I9 t. BMl bolaa ant Bain la M. O.
> K. Uaant. CaUrUM abw Ar flMBliblilB te aoid^H^^Ml^ft !■■■■ la V. llnafa^ATfl. KMyklopidk.
■m^^^ViWf'
00.%!] l%e dark ctge in legal hiitory, 13
kmgdoon leave ub law, Kent and Wessex, though we have iwon to believe that 0& the Uercian (ob. 796) legislated\ SvoB Kostirambria, Bede's Northambiia, which was a bright ifot m a 6aA worid, bequeaths no dooms. The impulse of ftoman example soon wore out When cmce a race has got its Zfli^ its aipintUHU seem to be satisfied. About the year 900 Alfred speaks as though OBa (circ. 800), Ine (circ 700). jBthelbeit (circ. 600) had left him little to da Barely upon the "*««"^«'*** was tiiere any authoritative revision of the anci^it Ltgm, thoiqpk tnnecribera sometimes modified' them to suit diaa^ed timee, and by so doii^ have perplexed tiie task of modem historians. Otaly among the Lombards, who from the fimt^ deqnte iAisar aamgery, seem to show something that is 1Q» a genins for law*, was there steadily progreedve legislation. Qrimwald (668), liatprand (713-85), Batchis (746) and Aistulf (7fi6) added to the edict of Bothari. Not by abandoning, but lij develc^nng th«r own ancient rules, the Lombards were training themselves to be the interpreters and in some sort the hein of the BMnan prwimtM.
As tiie IVankish realm e^ianded, there expanded with it a S[|*^<>' mndecfiil 'system <^peracmal lawsV It was a system of racial EmT^ laws, ^nie LetD SaOoa, for example, was not the law of a district, it was the law of a race. The Swabian, wherever he might be, lived under his Alamannic law, or, as an expressive phrase tells us, he lived Alamannic law (legem vivere). So Boman law was the law of the Komani. In a famous, if exaggerated sentence, Bishop Agobard of Lyons has said that often five men would be walking or sitting together and each of them would own a different law*. We are now taught that this principle is not primitively Germanic. Indeed in England, where there were no Romani, it never came to the front, and, for example, ' the Danelaw ' very rapidly became the name for a tract of land*. But in the kingdoms founded by Goths and Burgundians the intruding Germans were only a small part of
> Alfred, Introdaotion, 49, §9 (Liebermann, Oeeetze, p. 46). ■ Bnmner, op. dt. i. 370; Scbr6der, op. oit. 335.
* BruDDer, op. ctt. i. 259 ; Sohrdder, op. oit. 225 ; Esmein, op. eit. 67.
* Agobttrdi Open, Migne, Patrol, vol. 104, col. 116 ; ' Mam plerumqae con- tiagit at limal aant ant sedeast qoinqoe homines et nullus eorum commanem legem cam altera habeat.'
* Stobbe, CoDBtit. Hist. i. 216. See, however, Dahn, Eoni(;e der Uermanen, Tu. (8), pp. 1 S.
u
The dark agt in legal hisUry, [bk. u
the btilk
Oftllo- Roman,
tbe
A populati
biu-fattriiina, at least tn ahow, had nuule their entry u «abj«cta ur allies of the coaperor. It wu natural then that tho Roauuii flhould live their old law. and, as we have seen', their mUn wen* lit (lainN to supply them with books of Roman law miilable to au iige which would bear none but the tborttwl of law-booka. It i» donbtfnl whether the Salian Fraoka mnde from the firat any ■imilar ooocenion to the pruvinciiUit whom they subdued ; but. US they Bpread over Uaui. always rutaioittg their own Imt ^Salica. tbcy allowed to the oonqnered mees the right thai ihoy claimed for themN'lvtw. Their victoriouii career gave tbe principle an alwnyH wider iioo|iv. At length they carried it with them into Italy and into tb^very city of Home. It woukl fiocm that among the l^unbanlx. the Roinani werv raflmd 10 Mttle their own dispulee by their own rolei, bat Lombard law prevuled between Roman and Lombard. However, whan Charlcg the Great vunquiahed DimderiuM and rnadc himself Iting r>f the Lombudii, tho Fiankifth «yatcm of pwauoal law fouud n new field A few yt-ars afterwards (800) a ooval Roman empire wan enubliHhtd. Onu of the immediate reauIH «ff itmt wiatiy-ij^^ ev^t wag Ihnt Koninn law peawd to be the
Lorntorial Uw of any part of the huuU thai had beooine Hibjeet to the BO-oalled Roman Empemr. Eves in Bom* it «m redttoed to the level of a pewooal or racial Uw. while in nortbera Italy there were many Swabian* who lived Ahunannic, and Krunka who Hved Salic or Ripiiarian Uw, beeidee tbe Lombarda'. In the future the nnoraiio imptrii wa« to have a very diSaranl offact. If tbe OltoN and Henrim were the MieoeHon al As* gOitiw. Cowtantine uul Justinian, then Code and Digest ware TTauemcAt, idatute law for the reaowed empir*. But mne cantttziM were to pus beCan this theory wonU be evolved, and yet other eentnriea belora it would pcartieally moold tbe law u( Germany. Meanwhile Roman Uw waa in Rome itarlf only tbe penonal law of the Romant TW TBivir A system of personal laws implies rules by which a * conflict £^ of laws * may be appesaed, and of hUe yean many of the inters natioctal or intertribal mice of the Ftmakiih realm have been reoovsted*. We may see. fur example, tbat the law of tbe slain, net that of the nlaycr, 6xea the amunnt uf the wergild, and that the law of the grmntor proscribes the nemiwiiss with which land * ■« ihom r- a. ' ftasnii. tf^ttultm, •IbM.Mlt.
i
CH. I.] 15
must be conveyed. We aee that legitimate children take their Cflither's, bastarcU their mother's law. We see also tbat the churches, except some which are of royal foundatioa, are deemed to live Bomao law, and in Italy, thoTTgh not in Frankiand, the rule that the individual cleric lives Roman law seems to have ^
been gradually adopted\ This gave the clergy some iuterest iu the old OT^tem. But German and Roman law were making advance towards each other. If the one was becoming civilized, the other had been sadly barbarized or rather vulgarized. North of the Alps the current Bomaa law regarded Alaric'a Lea; as ita chief authority. In Italy Justinian's Inetitutes and Code and JuLiiSLn'a epitome of the Novels were known, and someone may Msnetimes have opened a copy of the Digest But everywhere tbe law administered amdng the Bomani seems to have been in the Baain a tnditKHial, oastomazy law which paid little heed to mttteu teacta. It was, we are told» tin rdmit^sa Vulgarreoht, whick stood to pme Boman law in the same relation as that in idiidi the vulgar Latin or Bomanoe that peofde talked stood to the Htetaxy langoage'. Not a few of the rules and ideas which w«re generally prevalent in the West had their source in this low Braoaa law. Id it starts Uie history of modem convey- aacBi^. The Anglo-Saxon 'land-book' is of Italian origin'. That England produces no formulary books, no books of ' pre- cedents in conveyancing,' such aa those which in considerable numbers were compiled in Frankland^ is one of the many sigos that even this low Boman law had no home here ; but neither did our forefathers talk low Latin.
In the British India of to-day we may see and on a grand The utent scale what might well be called a system of personal laws, of racial laws. If we compared it with the Frankish, one pic- turesque element would be wanting. Suppose that among the native races there was one possessed of an old law-book, too good for it, too good for us, which gradually, as men studied it afresh, would begin to tell of a veiy ancient but eternally modem civilization and of a skilful jurisprudence which the lawyers of the ruling race would some day make their model. This romance of history will not repeat itself
1 Brntmer, op. cit. i. 269 ; Ldoing, op. oit. ii. 284. > Branner, op. cit. i. 25S.
' Bnmner, Zar Beohtsgeschiohte der rdmisohen uod germanischen Urkunde, i.187.
'* Bnmner, D. B. (i. i. 401; Schroder, op. cit. 254. Edited iu M. G. by Zeumer; alao by E. de Bozi^re, Recneil g^niiml des formuleH.
16
The dark age in legal hUtorg. [bk. I.
takriw.
During the guldeu iige of thu Fmnkuih faprexnacy, tb« ft which cloaeJy oontres rouud the y&ur KOO. there wu « good deftl of ilcHnile lofpaUtioa : nmeh mora than ihon wu u> bo in Um biul time that ww coming. The king or ompcror imatd opito- Uhos {eapitulay. Within a Rjihcrv which c»n not be ivadilf defined he exercised a |K>wer of laving commandB upon all h» tiobjccte, and flo of making now territorial law for his whole realm or any pnrl thi*n>of ; but in principle any change in the law of iJiH! of lhi< fulkM would nnpitn* thai ftilk'ti oonneoL A Mipcrittnictura uf aipitulorim might be renn*d. but the Ltx of' a folk WAK not easily altenblci In H2T Aiwegifl. Abbot uf{ St Wanilrillv, cullcfrted wme of the oapituhuicn into four bookd*. Hii wt>rk Menu to have found general acceptance, though it HhuwK that many oapituUriea were speedily fot^tteo and that much of the Karf>liugian le^piUation had fiuled to pnpilur« a permanent effect. Those fratricidal wan were beginniog. Hie legal productn which ore to be ohamcterietio of thin unhappy age are not genuine Uwi . they are lhi< forged oapitulariea of Benedict the Lerite and the faUe decroCala of the Isidoni.
Slowly and by obwure procewce a great niaat of aocl '^*'*^ ^* law hml been funning iUeJC It rolled, if we may ao apimk. from country to conntT7 and toi>k up new matter into itaelf aA it west, for bifthop bomiwed fruni bishop and tranecriber from tranacnber. Oriental, African, !:»paui»h. UalUcan canona were oullected iato the Minie book and the decretal letten of later were addad le thuMi' of f&rlier pi^pea Of the i>wajmiMi we have almdy apokrn. Another celebrated collection eeeiiM to have taken •hape in the Spain of the seventh eentury ; it baa been known oa the fliMpana or Indorittna*, fur without luffiouint wanvat it haa boBD attributed to tbat St loidare of Seville (ofai 636). whoee Origmm* served aa ao eoeytlo|NBdk of jarMprndMoe aed all other eaienoeai The Hixpana made ila way into Kmnoe, and
Ornvth <if
> Braaaw. op. dL L 174: 8dirM«, vf. aH. MTt li^ria, a^. aiL Ut. B41aa« ialL a bjr Bontioa aod Kw— ; ^mtiimOj ly r*h».
* BceaMT. op. «1L i. tm; SAirttr. op^ aft. Ml i tide, ofk. dt. 117.
■ MMM>a,opidl. L.M7fl.| Tai4U:ep.dl.Uf. PHaM4 la MJem. PatiaL ToLel
< Pa-tteBoBaakvflf Uh Or^aH, m* CmusI, ap^ dL L ICBl At iM v Maood haai thi* work «a> aaad by It* aatbov d mm U»^n ttemrieL TWl Iha laww4 lMdat» bM* aotkliw of Jwrtlaiaa*! hwb mmtm i« U pmrcrf. aaJ 1^ tk»w» ItMl Uwy *«• aa* tanma la Dpala.
etLil.2 7%e dark age in legal Mstory^ 17
H ■oemi to hare already eomprised some spurious documents befan it oame to the hands of the most illnstriouB of all forgers.
Then mit <rf the depdi of the ninth oentuzy emerged a hook om» lAoA wwB to giTe law to mankind fin* a l(aig time to oome.aBdZ. Its core mn tiie JTupana; but into it there had been foisted ^Jj^ boBJdco <rtba: fotgerieB, some sixty decretaU professing to come from the reiy earHert sucoessors of St Peter. The compiler aalled l^nself bidorus Hercator; he seems to have tried to pecwnato Udore of Sevilla Many gueesee have been made aa to his name and time and home. It seems oertun that he did his walk in Frankland, and near the middle of the ninth eenfemy^ Hie baa been sought aa &r west as le Hans, but ■ospidon hangs tiiu^est over the church of Beima The &lse deerrtab are ebborato mosaics made up out of phrases from the bftb^ the &thers, genuine canons, genuine decretals, the West Gkith's Roman law-book ; but all these materials, wherever edleetod, are so aRaz^;ed as to establish a few great principles: die grandeur and supo'human origin of ecclesiastical power, the aaoooanetity of the persona and the property of bishops, aiM^ though this ia not so prominent, the supremacy of the bishop of Borne. Episcopal rights are to be maintained against the cAonipweop^ against the meteopoUtans, and against the secular power. Above all (and this is the burden of the song), no accusation can be brought against a bishop so long as be ia despoiled of his see : SpoUaius episcopus atnte omnia debet reatitui.
Closely connected with this fraud was another. Some one The forged who called himself a deacon of the church of Mainz and gave lariea. his name as Benedict, added to the four books of capitularies, which Ansegis had published, three other books containing would-be, but &lse capitularies, which had the same bent as the decretals concocted by the Pseudo-Isidore. These are not the only, but they are the most famous manifestations of the lying spirit which had seized the Prankish clergy. The Isidorian forgeries were soon accepted at Bome. The popes profited by documents which taught that ever since the apostolic age the bishops of Bome had been declaring, or even making, law for the universal church. On this rock or ou this sand a lofty edifice was reared'.
1 The Decretales Fwndo-Isidorumae vera edited by Hinschios in 1863. See ftlBO Tardif, op. oit. 133 fl.; Conrat, op. oit. i. 299; Broimer, op. oit. i. 384.
P. H. I. 2
16
TU
in Ugal history^ [bk. I.
ChvA And now for thi* gnwtor port of the Cuntinimt cooies Um
tinM whoD eodcfUABtical Uw u th« ocljr Kirt of U« UuU ii vtsiblj growing. Tho stroAin of onpitulari«fl c«wed (o flow; then) WW oone to legtoUW; the Frankuh tnoiuuchj ww going to WTDck muj ruin ; feudaliaai WM trtumpluutl. SaoudotabHi ftlao WW inuinphaut, and ita riotonw were olowdy connert<J with tbotfo of foadalism. Tbo clergy had long b«M!in utrinng ko plaoa thenudvot bejood the rmch uf the »l&ie*» tribuniUa. Tlw dnnutlo ■troggle between Hanry II. and Beckct hw • long Fimnkitfa protogoe*. Some ooDOMdocu bed bten woo from the Mrn>vingiiuw ; but »till Chorloti the Great b«d been suprvnio over all pcnooji And in all caoeeo. Tbuugfa hu realm &-11 luundcr. the churebee wore imited. and united by n principle that cUiniod a divine origin. Tbejr we«e rapidly evolving law which wa» in ooniae of time to be the written law of on anivonal and tbeoomtio monarchy. The moM. noir flwoUen by the leidorien fergeriee, atill rulk-d frvm diooeee lo dioccee, taking up new matter into iteclC It become olwaye more lawyeriy in form and teiture u it appropriated eenUDew from tho Roman Uw-booka and mode-itaclf tho law of tho only courts to which the cleigy would ^'iold obc-diooce. Nor woe it above borrowing from Qcrmanic law, fbr thence it look ita prubativo proecaeee, tho oath with inth-ht'l[K>ni and tbe ordeal or judgment of Ood. Among the many compilen of mennoli uf church law three are eapedoUy fiunone: Bogino, abboi of Pnim (90a-915*). Burehord, biidiop of Worms <10tS-IOSS/. aad Xto, biahop of Chorine (oh. MM)*. Tbey and moay other* pnpored tbe way far Gratian, the maker of the drarah^ Digeet, and evente were deciding ihal tbe ehoivh dwoU oleo have a Code and abundant NoveU. In on aril day fur theai« aelrea the German kinga took the popocy frum the mire into wbicb it had foUeo, and aoon the work of imting decretola WW reenmcd with new vigour. At tbe dote of the Kurmoa <3ooqQeat the flow of theee edicte waa hemming rapid. Tlw Hiatoriana of Fivncb and German low fiad that a wall-
marked period ia ihrukl upon tbem. Tile age of tlie Ibtk-lowi
I
4
1 inai*>e^ or. m. u. one.
< TbnLf. Of. att. Itt. VhtOmA la Uigm. Puni. toL IH; alM mtklai ^ IMA.
rrteMI In M^M. VtttL t«L 14*. Bm fmmAm. TtM it> CI»tb^ Pwfa^ UM.
•IM.IW.
fj^--
OB. X.3 The dar^ age in legal kiatory* 19
and t6tt eifitalaries, 'the Fhuddah time,' thej can netcsa Hneh adeed is duk azul diqpatable; bat much has been mads plain during the last thirty yeara by thw tmweaxying labour. Titete is no lat^ of materials, and the materials are of a strictly legal kind: lavs and statements of law. This done, they aiA eoilqMUed xapidly to pass throagh seTeoral centaries to a new poini of new. . They take their stand in the thirteenth among lav-books vbidi have the treatises of Gianvill and Biaoton tat Ibflir fiiglah eqniTateits. It is then a nev vorid tiiat they paiaifernK To eonneot this nev osder with the old, to make thewucldof 'the dasaiGal feudalism'* grow oat of the world of the Mk-kvs is a task vhidi is being slowly accomplished by dc^bl bands; bat it is difficalt, for, though materials are not vantiBg, they ore not of a strictly legal kind; they ave not law% nor law-bodo^ntMr statements <^Uw. The intetrening, the daA ag^ has been oalled ' the diplomatic age,* vhereby is meant that its fanr most be hasaidoualy inferred fhnn ({^pJlomato, from diartei^ frtm oooTejnncee, from privileges accorded to par> tiealar ekardies or particular towna No due legisUites. The P^noeh historian will tell us that the last capitularies which bear the duncter of general laws are issued by Garloman IL in 884 and that the first legislative ordonnance is issued by Louis VIL in 1155*. Qermany and France were coming to the birth and the agony was long. Long it was questionable whether the western world would not be overwhelmed by Northmen and Saracens and Magyars ; perhaps we are right in saying that it was saved by feudalism*. Meanwhile the innermost texture of human society was being changed ; local customs were issuing from and then consuming the old racial lawa
Strangely different, at least upon its surface, is our English l^^JBimtioo story. The age of the capitularies (for such we well might call uuid."* it) begins with us just when it has come to its end upon the Continent. We have had some written laws from the newly converted Kent and Wessex of the seventh century. We have
1 We borrow la fiodaUU elaiiique from M. Flacb : Les origine> de ranoienne Fnnue, iL 661.
* Snndii, op. dt. 487-8; VioUet, op. oit. 163. 8chrMer,op. oit. 624: 'Tom 10. bU 13. Jahrhimdert nihte die Qesetzgebung fast gans...Es war die Zelt der AlUBhemefaaft dea Qewohnhcitsrwhtet.'
' Oman, The Dark AgM, 611.
2—2
20
7%e eUtri age in kffol hiatory, [bk. l
hnud that ui the dny of MurcikM greatnoH Oflk (ub. 79flX iiiSuoDoed perhftps by the cxuupte of Charleft the Qnftl^ bad pnblinbed laws. Theao wo have loot, but we bavo no roHno to fear that we have lout much ehw. Even Kfibcrt did not k'gulatc The bitenoo waji brokon by Alfred (871— OOIX oncl thcD, tor a century and a half we have law« from almost every king: from Edward, jEtbelatao, Edronnd. Edgar, iEthulrMl uDd Cnut The ago of ihe capitularies bcgioN with Alfred, and in some sort it uuver codji, fur Witliaitt the Cont|uoror nud Henry 1. take up the t&lo*. WhMbcr in the daya of the Confenor, whom a pt>rver!H>, though ex- pUcablo. tradition honounrd as a prevmiDi'nt law-giver, we were not on the verge of ad age without legiaUiioo, an age which would but boo £uthfuUy reproduee aome bad features of ibu FrauluMfa decadeDce, ia a quention that ia not eauily auAwered. tlowbeit, Onat had published in England * body of Uw« which, if rvgard bo had to its date, muHt b» called ft hiuidttoukti code. If ho u not the gnateat legiaUtor of the eleventh century, wc most go as lar an Bareeloiu W fiod hh pc«r'. He had been to Rome; he had aeen an emperor cruwned by a popo; but it was not outside England that lie loimt tu logisLOe. He followed a fikahioa set by Alfred. Wo might easily ei^geimte both the ftmoaat of new milter that WW oontainod in theao English capttulnrieii and the amuont t*f nibrmation that tbey give mi; but the mere &ct tiat Alfred •all. aiKl that his moeeseon (and among them tbe eooqawiog Dane), maintain, a fashion of legislating a of grmt import«aoiiL The Norman xubdutw, nr, tut he says, inherits a kingilom in which a king is cxpeclcxl to publish Uwi^
Were wo tu discun the oaoM* of this eariy diveigeaue of English from continental history we might wander fiu-. In tbe first phww, we ahonld hare to remember the small use, the plain Burfaet, the definite boaudaiy of oar oountry. Tbii
* As 10 Uu doH litaMM bH««-a ths l^ik 4hmu sa4 ifca Fnakltfe niTlil M M BMbK CoMt Bkl. L nt. «• adih* mQj MpfOM ikm halWioa. v«« U M« thsl smli elite rswJJnelsa mrtiai wmt la wto Uhm AUtadbiVuUswafk.
■ TU Uauid niwWnnwidi fSlrtea (prfattd bj OirsDd, Biilaf»4a Ji^ fcaatsis,a. «Mt.) sis s— ttsl to B^y— ij Hi i mii LsaJ lo lbs ymt Iflee m ibwMliHiilt 0el Im Istei s vvl of tb«a naO; enam ftooi Un h s sUs ^mHIwi Hm OMiml. tip. w^l. L U7; rietar. HfJMso^hhAsOMrtlrfiiyiiiiiBiH. l«na.tL lb.
CB. 1.3 ^%« dark age m legal history. 21
tikoa^t indeed most often reenr to ns in the ooune of our work : "gngUwl is small : it can be governed by uniform law : it aeems to invite general legislation. AJao we should notoce that the kingship of England, when once it ^sts, preserves its nmfey : it is not partitioned among lHK)thers and cousins. More- over we migbt find onrselves saying~that the Northmen were flo victorious in tiieir assaults on our island that they did less faana here tiian elsewhere. In the end it was better that they sbooid conquer a tracts settie in villages and call the lands by Hbtar own-names, than that the state lE^ould go to jaeces in the act of repelling their inroads. Then, again, it would not escape ns that a cU)ae and confttsed union between church and state preveDted tite development of a body of distinctively eccle- *TTt^^ law which would stand in contrast with, if not in oppoaitioii to, the law of Uie land'. Such powor had the lxidK)]» in all public affiurs, that they had little to gain from deeip^ala forged or genuine' ; indeed JSthelied's laws are apt to beccmw moe sermons preached to a disobedient folk. However we am hoe but registering the &ct that the age of capitularies, whkli was begun by Alfred, does not end. The English king, be he weak like ^thelred or strong like Cnut, is expected to publish laws.
But Italy was to be for a while the focus of the whole Centnrjr world's legal history. For one thing, the thread of legislation ThePaviui was never quite broken there. Capitularies or statutes wbich •aw-«si«»i- enact territorial law came from Karolingian emperors and from Earolingian kings of Italy, and then from the Ottos and later German kings. Bat what is more important is that the old Lombard law showed a marvellous vitality and a capacity of being elaborated into a reasonable and progressive system. Lombardy was the country in which the principle of personal law struck its deepest roots. Besides Lombards and Romani there were many Franks and Swabians who transmitted their law fix)m father to son. It was long before the old question Qua lege vivis ? lost its importance. The ' conflict of laws ' seems to have favoured the growth of a mediating and
* Btubbs, Const. Hist. i. 26S : ' There are few if any records of coanoils distiootly eocleaiaatical held daring the tenth oentary in England.'
' There seem to be traces of the Frankish forgeries in the Woroester book daacribed by Miss Bateson, E. H. B. x. 712 ff. English ecolesiastios were boxTowing and it is nnlikely thai they esoaped contamination.
22
The dark age in legal history. [eik. i.
TIhmv
Mrthol
iiistnicted jurupnideooe. TboD at PtvU in the Brat Iwlf of Um eleventh centary « Uw-nchool liad ariaen. In it men wan OodattToariog to systotnatue bjr gloM and oonunflnt tfac aociciit Lombud stfttutm of Bothari and his •aooevon Um beftda of the Mhool wen often employod u royal juBticca (iWhcw polotmi); th<fir tmmes aod thoir optniona were treaaured by adintriDg pupiU. Frotn out thia school came Lanfranc Thua a body of law, which though it had bmn the fint been mora neatly ucpraiaed than, was in its substance strikingly like, oar own old doomSibeouDe the sobjcct of continuouH and pntlenional stuily. The infltuooe of reviving Roman law \m not to be ignored. Tbeee Locnbeidists knew their Instttutss. aad, befcse the eleventh ccntnry was at an end. the Hnctrine that Roman law «*ai a BubtddijLry oocnmon law for all mankind {Um ommMn gtmralia) was gaining grooikd among thorn ; but still the law upon which they wnrked was the old Oenuuuo law of the LombanI race. Favia banded the lamp to Bdogna. Lom to the Ruroagua'.
As to the more or less tbnt was known of the aneioot Roman texta there has been learned and lively oontrovcny in theae last yeerv* But, even if wo grant to the fhampions of continuity ull that they auk, the sum will seem saaall until the *^ ^evepth contiiry is reached. That Uige mameH of men tn Italy and wmlhe-ni Fnuitx- ha<l Roman law (or their ponoool
(law ii beyond duubt. Also it is certain that Jostiman's Inaiitutsa and Gode and Julian's Epitome of the Noreb were begioaiag bo ■prssd outoide Italy. There are quustioDa stiU to ba siJfed about the date and donucilo of various small collections of Bomaa rules wbioh some ragard as oldar than or uninfluenced by the work of the Bologneaa glowfrwi One critic diaooven
1 BcmUiH. PrrfM* to fditiaa ol \Am U^ LsagDhaidoraM, ta M. O. i BrvnaOT. op. til- 1. SSTH.: Jiokm. rvrnk/m^m m Bdili*' a. BMhUfHoUthl* Uolini. ia 44ff..iav0.i CoBra.er.aiLi.SWff.
■ U ii «^ «Bamd «r far Bi^iUia nMlm I7 BmWiII. Vai<«niUH «r laiopai. L SI ff. TW Jitrf sJwwH sf a sibiIww of lamMm >— >iM Pr Hiwen FHH^ la Jartntt^t BitoUlte im titlbmm WHNlihwi^ IWJ. Dto iama^ im BwhlMahnU la Bel««M. MM, tU ttmt^mm. Bm hw •mmk a Boa^ Oodkb (UM) •mi. mom ^nirtlmii M fan
both <d wUdi bi aMribM l» Ifa«t«iL Sw »be H iii. Dfa
tnwriB^ IMii MmmIi PrJw to f fr-if^aM* aJMoa rf Ifci WeMti flMlk. lUa«H«tft^MNil1teBfa«daAi«UnMlB.iaW; BmH, L*arnBriiMrih UMj Ffabw, opL in. Ml. Ui. Mi OmmI, ay. ril. y^i
nmMnI I
I
0BU I.] The doHt age in legaH J^nUaryi ft$
•TCaeaoent tnoM of a sehod of Uw at Borne at at Ravama wbioh othen ean not see. ^e omrent izistniotum of \K(g% Itt gmmmar aad tlieUmc inyolved araie diactuBiaa of !^^ Dofiiiitkns of Im azul tu8 and so fi>rth wore leant by r; little oatectriwnB were compiled'; bat of anytiung thi^ ««AMtld dan to eall an edaoationin Boman law there are few, if any, indiqmtable rigns b^brs the sdiool of Bologna appear* in the Moond half of the eleventh oentozy. As to the D^giest^ dnrii^ ecnoM four hundred yean its mere eziBtenoe aeema to have been ahaioat nnknown. It barely escaped with its li& Whan men spoke of 'the pandeots' they meant the Uble*. The mnantie feUe; <tf the captore <^ an oniqae eofj at tiie aege of Amalfl in 1185 has long been dii|HroTed; bnt, if some mall fiagraents be Defected, all the extant manosoripts are said to denre from two oqnes, <me now lost, tiie ol^er the ftnoQB 21(H«ntina written, we are told, by Gredc hands in the rizth or seventh oentniy. In the eleventh the revival began. Li 10S8 Otmrad 11., tiie emperor whom Chmt saw crowned, ovdained tiiat Bcnnan law shoold be once more the twritorial law of the dty of Bome*. In 1076 the Digest was cited in the. . jndgBsnt <A a Tuscan court*. . Then, about 1100, Imerius was teaching at Bologna*.
Here, again, there is room for controversy. It is said that The be was not self-taught; it is said that neither his theme nor Digest, his method was quite new ; it is said that he had a predecessor at Bologna, one Fepo by name. All this may be true and is probable enough: and yet undoubtedly he was soon regarded as the founder of the school which was teaching Roman law to an intently listening world. We with our many sciences can hardly comprehend the size of this event. The monarchy of theology over the intellectual world was disputed. A lay
* S«e E. J. Tardif, Extraite et abr£g£s juridiqnes deB Mymologies d'Isidore de S^Tille, 1896.
* Coniat, op. Bit. i. 65.
■ M. O. LegM, ii. 40 ; Connt, op. oit. i. 63.
* Picker, Forsohnngen, iil 126 ; It. 99 ; Conrat, op. eit. 67. Apparent!; the moat indtutrioaB research has failed to prore that between 608 and 1076 any one eit«d the Digest. The bare fact that Jastinian had issaed sach a book ieems to have vaniafaed from memory. Conrat, op. oit. i. 69.
* In datad doenmente ImeriaB (his name seems to have really been WametioB, Qnamerins) appears in 1118 and dlBappeais in 1125. The Uni- Tflnity of Bologna kept 1888 as its ootooentenary.
«(4lH
scieDoe claimed its righto, its shore of men's aiU>ntion. It wma « Htoeooe of dvil life to be fouDt) iu the human, hmtheti Digest*.
A buw force bad begun to pUy uud aooner or klor tnixf bodjr of law id wostern Europe fell it Th*» n^liwipwl tJ^yn]^ ■oawcpod with Omtian'ii Decffrtum (eirc 1 139) owl Lho ])ccrvtab 1^ Gregory IX ( 1 234)! The cjuiodUI ernolaUMl the dviliaD and for n long whili^ inaiQiAimfd in the 6v1d of jnriitpnklaaai what sooaied to bv aa ec|ua] combat. Uuequol it wai* io tnith. Thp DccHTtum is md trtuff when wt beside the Digest nnil the study uf Komnu Iaw never (liei*. When it Mcms to bu dying it •Iwnyv returns to th*' LextM luid w bttm anew. It is not for as horu to apeak of it« new birth in the Fnwcu of tho nxtccnth or ID the Qennanjr of tho uinot«cDth century ; but ita now birth 'fii the Italy of tho vlovtmth nod twL'lfih concenui oa oeariy. IWudmt indeed but all*imputtant waa the influenee of the £ologna of Imcriua and of Oratiaii upon the form, and there- fore npoo the HubslAnce. of our English law. The tbaoreticml cDotinaity or * translation ' of the empire which secured for JustiniaD'a book* their bold upon Italy, and. though after a wide interval, npon Germany abo, counted for Ittilc in FnuMM or in England. In Englaod, again, there waa no maaa ei Romani, of people who all along had been living RoDsan kw of a d^^oerat« and volgar sort and who would in omirae of tima be taught lo look for their Uw to Code and Digeat. Alao then waa no need io England ffir that r»e*maiiMum d* ttinUd maiumalg which 61U a large space in achemea of French hiaCory, and in which, fur good and ill, the Roman taita fava their powcrfbl aid to tho centripetal and monarchical forcea In England the Mw teaming funntl a small, humogcneoua, well oonfjaeiHl, much governed Wiugdoro, a strong, a legislating kingahip. It came to oa aoon ; it taught us much ; and thi*n thunp was h«althy roaiatance to foreign dogma. But all this we shall aue in tba aaqoeL
■ Rwada, epu ^ M7 : ■ U— wiinw oow<wlW aagnlt. IbIHhii<sbIi«I kHa^ la inn II im W wdM tirUt^ laLU ^m I'mtaiat diigsala ks BrflM «• qal fottrali pMSM fern U A^-4'amwn d« la M^Ha hBMBlD»...H m Hm\tm fit «»i4 fa iUok«iM M fiafa li MUslB faS afaH, soBM laf, MB friaa^ M M l8SlBS,ilVdlBidliriteladii«liaaAM«ifvtlBBtU«d«H«vb.' btaMi^ly ■low difiwi Ihal 4h» DlfHt w«H tf Ito risliis. TlwaaghMt Om aUA* agn lb* CeA* mpfmn, m JatfinUa lalandtd ihiA U ttttmU ftppM'. m >■» ^umIwib^ hook: It •oalaiaa iW B«« lav. Bm rkiltai. fniMi le Um Sbbbm «f
CHAPTER n.
AMOL0-SAXON LAW.
b^i] Thd bwA IB concerned with Anglo-Saxon legal antiqnltiee, Boopsof but onlj 80 fiur as th^ are connected vith, and tend to thzow Omftm. l^t upon, the sabeequoit history of the laws of England, and die sot^ of the {oesent chapter ia limited by that puipdse. Mudk. of onr infinmation about the Anglo-&Lzon laws and ciutoma, especially as r^^ards landholding, is so fragmentary and obseue ^t the only hope of understanding it is to work bftck to it from tiie foller evidence of Norman and even later tfanea It would be outside onr ondertaking to deal with pn>blems of this kind*.
The habit of preserving some written record of all affairs of toiperfec- importance is a modem one in the north and west of Europe, written But it is so prevalent and so much bound up with our daily ^w ^ habits that we have almost forgotten how much of the world's ^^^™*nic business, even in comnnunities by no means barbarous, has been carried on without it. And the student of early laws and institutions, although the fact ia constantly thrust upon him, can hardly accept it without a sort of continuing surprise. This brings with it a temptation of some practical danger, that of overrating both the trustworthiness of written documents and the importance of the matters they deal with as compared with other things for which the direct authority of documents ia wanting. The danger is a specially besetting one in the early history of English law ; and that inquirer is fortunate who is not beguiled into positive error by the desire of making his statements appear less imperfect. In truth, the manners, dress, and dialects of our ancestors before the Norman Conquest
1 See MaitUnd, Domesday Book and Beyond, Cambridge, 1897.
26
AngJo'Soxon Law.
[bk. I.
vo fax bott«r known to ua than their Uwt. Butorioal inqoxrjr moat be tabjeet, in the field of law. to pecaliAr uid inevitable difHcuIticft. In moat other cues the evidBnoe. whothcr full nr >!] flcknty, i» clear jw for aa it goes. Anna, ornomeuu, miuuturee. toll ihc-ir own atory. But written laws and legal doeusMnte* being written for preaent nae and not for the ptupoae of en- lightening future hiatoriaos, oaanmc knowledge on the reader's part of an iDde6mte moH of received coatom and practice. They ore intelligible ooly when thuy iim token am port of a whole which they commonly givv ua little help to oooeciv«L It may even happen that wo do not know whether a poitiealar document or doaa of documunta rvprrarnU the normal coume of ofioin, or woe ooaunitted to writing tor the rcry noaon tliot the tmnooetion wm oxeeptiociaL Etvo oar modem law ia found perploitng. for reoaoos of this kind, not only by (breiguen, but by Eliigliahmcn who ait! not lawycm
Wl> can not expect, then, that the eztoot colleotioM of Anglo-Saxon lawa nhuuld give ua anything like a oomplela view of the legal or jadicial inatitutions of the tame. Our Gonnonic onoeeloii were no great penmen, and we know thai the teductioo of any (lart of their ouatomaty laws to writing won in the finit place duo to foreign inflnenoe. Prinoea vbo had fonakeu heathendom under the guidance of Bouan elerka mode baste, oooording to tbeir Ughte, to imitate the ways «f^ imperial and Christian Rome'.
Althoogh English prinoM iMOod written dooma with adrioe of their wiae men it iDtomUadnring nearly five oenturieow it aeema all hot oertain that none of them did ao with the intention of oooitraeltQg a eonptttd body of law. The tmjt
n
nea. ^
> Tbt A.-S. U»t wm flni ftiatmi ^ UoiWri, ln^liwinmh. UM. A naeai «diUoa ol hb work wu poblUiad b; Whaloik, ArdMloDBKb, OuokfMii* IftM.-Tbk WH Mlowwl to ITtl bj WUklo*. L^m Aaflo-SuoolaM— la ION tha kadtat Uwi ud XaatitalM «( S^Uad wtn adUwl far lb« It in I Oaa- ■tafaa bj Ptu* 4od ThotpB^lfcU wu faHnwrf by ■■tafcwM Batay, Omsim 4« AaiilMobMB. Sod W. Upelf. um wUih Mfma*d a in atolpaBflWI.-Aa»w«<IUeabyPrrtl I mil i tilw<afrf| 1^ MafM illiiiaiilni wm, Uti4m tmMt't wdt^aawa waAik lb* lUmmtf la lAaU^ ■aWoa— XoBia4 Mmot. >hiI lililiift i BiiliiiiMlintaiMa, te KiIiMm Oilimfcii Am ttmmhm OiiH^ibaiq. ««l. L f . Maa^ IMt, &— Sm«^ to Aaglo^Ufla Law* (A^B^ LaJp>. Taaaft UatUla). irr«.-rall a» iMi Wn otwk o( Ibr a.-a doaiBMli by Malwtaaa «f (kroNa law, Braaoat; Ihhinfci r. Jtmlni aaA olbv«.— Fgr Uw OwaJlaaitiiH tiAt ml Urn alarj, mm DaariN. OvfaahafM. Ian.
Angh'Saxon La^^ 27
d%hfc and iaeoiupioooiw part which piooedare takes in the An^o-SaiDB lam is eiioa|^ to dM>w that they are mere on a iniioh lazger haae <tf enstom. 4il they do k to legolate and amend in detaib xuiw this bmndk of cuBtonuuy In^ Mur another. In short, their relation to the laws and ««liMBB of the oDontry as a whole is not nnlike that which Acts of IteliameBt oootinae to hear in onr own day to the indefinite ■•■ of the common law. fr q Onr knowledge of Anglo-Sazon law rests, so fiff as poaitiTe ^^ evidenee gQe% on aevaml classes of doooments which supplement aocMina «■• another to some extent, hot are still &r from giving a iwiplnta view. We have in the first place the considerable Hdes of laws and ozdinanoes of Saxon and English princes, *»«B'"«'fa*g with those of ^thelhert of Kent, well kniown to gmsial histoty as Augustine's convert, which are of about the flod of the sixth oentuiy. The laws of Onnt may he said to elsae tba fisk Then from the oentuiy which follows tiie K<»rmaa Oonqoest we hare vazionB attempts to state the old English lanr. Umbs belong to the second dass of doonments, namely, msiniflaiiwiw of enstoms and formulas which are not known •ffv to have had any poative authority, but ^)pear to have been put together with a view to practical uae, or at least to preserve the memory of things which bad been in practice, and which the writer hoped to see in practice again. Perhaps our most important witness of this kind is the tract or custumal called Re^ititdines singiUarum personarumK Some of the so- called laws are merely semi-official or private compilations, but their formal profession of an authority they really had not makes no difference to their value as evidence of what the compilers understood the customary law to have been. To some extent we can check them by their repetition of matter ■ that occurs in genuine Anglo-Saxon laws of earlier dates. Apocryphal documents of this kind are by no means confined to Engluid, nor, in English history, to the period before the Conquest. Some examples from the thirteenth century have found their way into the worshipful company of the Statutes of the Realm among the ' statutes of uncertain time.' It has been the work of more than one generation of scholars to detect
1 Sehmid, Oewtse, p. 871. The Qere/a, which seema to be » oontiDiiatioD of thig tnot, wms pabliBhed by I>r Liflb«rmaDn, in AnglU, iz. 261, and by X>r Cunningham, Orowth of Engliih IndoBtrj, ed. 8, vol. i. p. £71 ff.
28
Anglo-Saxon Law,
[BK.L
their true ehamtit«r, not indeed i« the work fti whoUj dona. Kmm the existence and npinrc>nt, •ometuncK rv«l importaooe of mch writing! and eocnpiUtioos m we bare now montioiud Umsv hu ariiien the e«tablitbed OMgv of Lueludiog them, lo- guther with genuine le^Utinn, under the oommoo beading of I * Anj^O'Siuon Uwn.' Ay fur thu dflibermte hblea of \mXn apo* crjrphal authoritiei, the ' Mim)r uf JukCicm* being the chief and fiagrant uample, the; belong not to the Aii^o*Sason but to a much later period of BnglUh law. For the more part ihniy are not uvi'u foliie hiaiury ; ihny am tt|M:culation or Mtirv.
Another Icind of oontcmporaiy writing!) afTunJfl us inoM valuable evidence for the limited field of law and unge whi(A thoae writinga cover. The field, however, is even more Unutcd than at firBl sight it nppcan to btu We mean the charlen or 'land-books' which record the mnnifioenoe of priaam to religioufl booaea or to kbeir IbUowcrF. or in •am* eaaea Um administration and diBposittan of domninn thai noquand. Along with theae we have to redion the extant A]^ki<Au(Ni wills, fuw in number aa compared with chortem pruperljr 9U caUei], but nf capital importiinoe in fixing and illustrating ntne pointa. It wa» Keniblo's grvat achievement to make Uw way pUin Ui the oppvisciation and uae uf thin class uf cvidenoaa by bta Codsx J}^tomiUieit», We have to cxpfoas opiniona OMrt or 1«« widely difierent from Kcmblo'a on eevwnl motiets, and kharelure think it well to my at otio* tluU no «ae who bos felt the difference between guniua and tDdustrinua good tstttntioas can ever difler with Kemble lightly ur wiihuui rvgroc Komble'a work oflen require* oontotioo; bat if Kemble'a woric had not b«en, there would be nothing to oocreet*.
Then we bare incadonlal notieaa of Aj^^O'Saxoo l»gal maUen in ehrooiclae and othor writings of which the valno for this purpoee rourl 1m* judged by the Q«aa] cmkmm of oola- cidenoe or nearneae in point of time, the writer's meani of i to contemprirary witoeaa nr continauoa tnwlition not ol prawrvad, bis guwml trwitworthinoas in thing* iiMn« oaaily vorified, and eo forth. Kxovpl fur oertaia paeaagm uf Boda, we
* TW pdaoifal wiflssMftas ewi TieMe. Ottte TWafii, Dl|i«mautem. lMi.~Kari«. Load fliM^iii. UHL-ttrA, <Wta. IM<— ,!■■■. Wsfiw»iSliiwiiii.O«w<w<CUrtwi.lt^FstTyMM wt hiriwHw iisllliliiil kj Om hMA VaMani, isn S., ■■< ta* iiiIib i hy *» Oriaaosi Sarr^r, IVTT C.
CB. II*] Anglo-Saxon Lnw. 29
do cot think that the geneial Literary evideiice, eo to call it, ia ■^ remarkable neither in quantity or in quality. Such as we have is, as might he expected, of social and economic interest in ths first {}tace, and throwa a rather indirect light upon the legal aspect of Anglo-Sason affairs.
Lastly, we have lugal fmd official documents of the Anglo- An^ Norman time, and foremost among them Domesday Book, whicli a^S^ti." ^q expressly or by impUcation tell us much of the state of England iraraediatcly before the Norman Conquest. Great as is the value of their eWdence, it is no easy matter for a modem reader to learm to use it. These documents, royal and other inquests and what else, were composed for definite practical uses. And many of the points on which our curiosity is mcst active, and finds itself moat baffled, were either common knowledge to the persona for whose use the documents were intended, or were not relevant to the purpose in haiid. In the foimer case no more information was desired^ in the latter none at alL Thus the Anglo-Norraan documents raise problems of their own which must themselves be solved before we can use the results aa a Iccgr to irlukb lies even one graieration behind them.
On the whde the state of English law befrae the Conquest Sorrqr of preeents a gveat deal of obscurity to a modem inquirer, not so smn much for actual lack of materials aa for want of any sure clue to b'^Uoiis. their right interpretation at a certain number of critical points. Nevertheless we cannot trace the history of our laws during the two centuries that followed the Conquest without having some general notions of the earlier period ; and we must endeavour to obtain a view that may suffice for this purpose. It would be a barren task to apply the refined classification of modem systems to the dooms of Ine and Al&ed or the more ambitious definitions of the Legea Henrici Primi. We shall take the main topics rather in their archaic order of importance. First comes the condition of persons ; next, the establishment of courts, and the process of justice; then the rule^ applicable to breaches of the peace, wrongs and offences, and finally the law of property, so &r as usage had been officially deBned and enforced, or new modes of dealing with property introduced. The origin and development of purely political institutions has been purposely excluded &om our scope.
As regards personal condition, we find the radical distinction, FenoBal universal in ancient society, between the free man and the slave, ^^ah^!"'
80
Anglo-Saxon Law,
[bk. l
But ID the oorlieit English auihcnitic*, nky, in oor mtImM •ocountu of Qcrmuiio sociotj, we do not dad it in th« olaar-init ■ioplicity of Roman law. Tboxv u a grvnl gulf bet««ttn Um lowest of free men and the slave; but there ore obo (Hftreaeei of imok and degrees of indepeiideoee among free men, whkfc already prepare the way for the compltixiuat uf medleraJ eocic^. 8oBe five men on lords, others ore dependenU or followen of lorda We have nothing bo show the origin or ontiiiuity of ihis I^Q- divifiion ; we know that it was the immemorial oiutoro of Ocr- luonic chieb to ■turuuud themselves with a bond of peroooat foJJowerB. the oamitu doecribcd by Tacitus, nnd wo may soppoee that imitation or npetitioD of this custom led to the relsiioo of turd and moo being fonnolly recognised as a nooessoiy port of public order. We know, moreover, that as early as the fint half of the tenth century the divisioii bad become exhanstivek Au urdinonce uf iClbelflton treate a ' lordlese man * aa a siM|BBieM if not dangerous person ; if he has not a lord who will answer for him, Hia kindrwj most 6nd him one; if they fiul in tbis» be may he duilt with (to uao the nearest modem terns) as a ragite and vagabond'. The term 'lord' is applied to the king, in « mors eminent and extensiTe but at the some time In a looser sense, with reference to all men owing or profesai^g ollegioBea tu him*. Kingn wvrc glad to Unw tu their own ttaa, if thsy might, the feeling of penenat attachment that belooi^ to lufilship in the pmper ivnae, and at a later time the greater lorda may nuw and ngiiiu have aooghl to emulate the king's genetal power. In any caae this pervading division of free pacaooa into lorda and moa, together with the king's pusitioo aa g«neial over-tard. combinad at a later time with the ptevataaea of dependent land teaorea to form the mofe elaborate anaage- ments and theories of medieval fimdaliam. It doea not posaible either to assign any time in Bnglidi history wbeo free men did not hold leind from their personal lords, or l» aasign the time whan this became a nemal state ef thingo. la the latter part of the ninth cantoiy tber« was already a eoo- iMaiahle eUsa of free men bonod to work oa the Unda of otheis, Ibr an oidinanco of Alfred files the holidays that arv to be allowed them ; and we can hardly doubt that this work waa
1 r-V" - * A • A.ACbi«a.saa.nL
ri^nlli
■lb le tevt «atr tte UiH
Angh-Soicon Law. 81
incident U> their own teDure^ At all events dependent land- holding appears to have been commoti in the century before the Norman Conquest It was the work of the succeeding century to establish the theory that all land must be 'hold of some one as a fixed principle of EugUsh law, and to give to the ^jj conditions of tenure as distinct fi-om the pereonal status of the tenant an importance which soon became preponderant, and had couch to do with the ultimate extinction of personal eervi- ^ude under the Tudor djuasty'.
Dependence XAk ft lord waa not the only check on the TlMfudlr. tDdividiial freedom of a freebom man. Anglo-Saxon polity preservedj even down to the Norman Conquest, many traces of a time when kinship was the strongest of all bonds. Such a stage of aocioty, we hardly need add, ia not contined to any one E^gfifia of the world or any odo race of men. In its domestic a^teat it may bake the form of the joint family or household vfcioh. in Tarioufi stages of resistance to modem tendencies and oo various scales of magnitude, is still an integral part of Hindu and South Slavonic life. When it puts on the face of strife bekweeok hostile klndroda, it is shown in the war of tribal hetioM, and more ^tecificaUy in tiie blood-feud. A man's kiudied are his avengen ; and, as it is their right and honoar to avenge him, so it is their duty to make amends for his misdeeds, or else maintain his cause in fight. Step by step, as the power of the State waxes, the self-centred and self-helping autonomy of the kindred wanes. Private feud is controlled, regulated, put, one may say, into legal harness ; the avenging and the protecting clan of the slain and the slayer are made pledges and auxiliaries of public justice. In England the legalized blood-feud expired almost within living memory, when the criminal procedure by way of 'appeal* was finally abolished. We have to conceive, then, of the kindred not as an artificial body or corporation to which the State allows authority over its members in order that it may be answerable for them, but as an element of the State not yielding precedence to the State itself. There is a constant tendency to conflict between the old customs of the family and the newer laws of the State ; the family preserves archaic habits and claims which clash at every turn with the development of a law-abiding
1 MM. 48.
* A eoUtU7 elAim of viUeioage is reported in the reign of James I.
32
Atiylo-Scuvn Law,
[bk. z.
wtl.
oonunoawcalth of thu inodeni type. In the EDf^limd uf the tontb (wntur}-*« wo find thnt n poworftil kindrMl m«y itill b« a dftDgor to public urdcr. uid that the i)nwt<r uf three ahiiva be oftllod out to bring an offending meinbor of it t</^i At tho Muno timo tho fiunilj was utiluod by the groi iniitiiuttons of the StAte. so &r m wm found poasibla W« t»->l h»To won th»t A lordlcM in«n*s kiiwfolk might be called upon to find him a lord. In other ways t<io tho kindred wwi doidi with an collertivi'Ij nwponffiblc for its nipmbcnt*. We need doI however rvganl the kindred ai a defined body like a tribe or dikD« indeed this would D'jt stand with tht- fact thnl the burden of making and tho duty of exacting coinpcnsation mn on the molber's ndv a» well aa the father's. A father and ion, or two half-brnthoDK, would r<>r the purp(M«i?( of the blixtd-fviid haw •ome of their kindred in commim, but by no nivan* alL
The legal importance of tho kindred cjotinuoe to be reoogmied in tbe rery late«t Anglo-Saxon cuMumaU, though ■ome detula thtit wo find on the aubjcct in tho no-called laws of Henry I. iall undtT gnivG mi^ieioa, not merely of an aataqnary** poduitM ou^ggoimtion, but of deliberate copying from other Qcnnunie luW'toxta. It in prubable that a man could abjure his kiudrofj, and that the unth used lor the par|iaae indmied an ttpmw n'nunctAtion of any future righta of inheritaDoe. We do nut know whethrr thix wu at all n common praetMv. nr whether any eymbolic curvmouiea like tkoac of tbe Salie law wen' or ever hod been mqnircd in England'.
Furtb(.*r, we find dixtiuctiona of rank amoog freemen which, though net amounting to fundamental diguicneea of caodiliao. and not always rigidly fixe<l. had more or Icm deAsita legal iocidcntA. From the earliest times a certain pre-emineoee ■• •ooordod <aa among almoat all Germanic people)* to men of noble birth. The ordinary freeman ii a 'oeorl/ dinrl (then u no trace belbra tho Nonnan Omqueai of the modern degnda* tioo of tbe word); the noble by birth ia aa 'MtL' lliia bi* word cmme later, under Uuuih iaAoaoM, te doDoU a epedfto
> JHMM. n. (laAiia dvUsUs LudasM 1. 1 1.
• XanUc, Suow. t fSL Hm A.-& tan fat lbs IteAnrf )■ lAlta *«Moas 'psraaMs,*
• Urn. <». I U i SslnaM Mate ««l lb» slnaf tmtmVkam Is Us BaL • Da «o ^ as di ysnatCDs tnlbn tmU.*
• Bmav. D. B. 0. 1. 104 1.
AftgiO'Saccon Law. 33
office of state, and our present ' earl * goea back to it in that ^ 4BI1BC. The Latin equivalent comes got specialized in much the nmc way. But such was not its ancient meaning. Special n^lntions to the king's person or service produced another and somt^what different classification. ' GeaiS ' was the earlieat English equivalcut, in practi<^l as well as literal ineaning, of wmm as empk^ed by Twatns; it Bigxkified a well-born man •ttadied to the king by the general duty of warlike servioe, thoagh not neoeonrily holding any spedal office about his peaon. It i^ however, a conunon poetic w«rd, and it is not ooofinad to men. It was current in Ine's time but abeady ofawdeto tea piaetical poxpoees in Alfred's ; latterly it appears to have sm|died hereditory rank and oonaideraUe landed pes- ■Maioofc The element of noble birth is emphasixed by the fiiller and oommooOT finrm ' geefttcnnd.'
^le official term of rank which we find in use in and after Thegn. Alfted's time is 'thegn>' 0>egen, in Latin usually muuBter). Ot^pnally a tiiegn is a household officer of some great man, enunentfy and especially of the king. From the tenth century to tile Conqoeet thegnship is not an office unless described by ■ome Bpedfic addition (hor^egen,' di8c]»egen, and the like) showing what the office was. It is a social condition above [p. 10] that of the churl, carrying with it both privileges and custom- ary duties. The ' king's thegns,' those who are in fact atttiched to the king's person and service, are specially distinguished. We may perhaps roughly compare the thegns of the later Anglo-Saxon monarchy to the country gentlemen of modem times who are in the commission of the peace and serve on the grand jury. But we must remember that the thegn had a definite legal rank. His wergild, for example, the fixed sum with which his death must be atoned for to his kindred, or which he might in some cases have to pay for his own misdoing, was six times as great as a common man's ; and his oath weighed as much more in the curious contest of asseverations, quite different from anything we now understand by evidence, by which early Germanic lawsuits were decided. It is stated in more than one old document that a thegn's rights might be claimed by the owner of five hides (at the normal value of the hide, 600 acres) of land, a church and belfiry, a * burgh-gate- seat' (which may imply a private jurisdiction, or may only * The modern form thane has acquired misleEuling literary associatioiiB. P. M. I. 3
34
Awfto-Stuemi Law,
[wc
Hwltoi,
nMBMM
Hignify n Ui«m hoUM>. and • vp«cul pUco in the king's ball The liko right is iMrribfd U> a menjhuit who has thrioE* i ro— id 'Ibe wiftv iea' (the Nurtfa Sua m appaaod to the Channel) «l bis own cbargot'. This may be suapoetcd, in ihe abaeooa of ooofinoatioti, of being merely the expremon of what, in tba vriter's opimun, an enli|[fataQG(l Elnglish kinjj^ ought to hava doue to cnouurage trade; vtill it is nut imprubablo. We hava no reaatm to rejoot the tradition aboat th« 6vo hides, which ia boroo out by somo lat4?r cWdence. Btit thin gives us do warrant in any case for denying Uuli a thfgii might httve tcca than five hides of laud, or asaertiiig that bo would forfeit his ruik if ba lost tha mcAna of stipportiiig it un tba luaal sonle. How«v«r« those delaib an ratUy of do importance in the nvoeial bietarjr uf our later law, (or they left no vixiblu umrk uu the straolota of Anglo-Norman aristocracy'.
The Inst remark applies to cf rtain other distinctions which ai« mentioned in onr aiith<iriti«ii as well known, but neirsr distiiKtIy explained. We read of * twelf-hynd ' and ' twy-bynd * men, sppan'otly so called from their wergild being twelve hundred and two hundnxl sbilliugH respectively. Tbers »aa also an iDtcrtnediatc class of 'siz-bynd' meiL U wookl eetM that the 'twelf-hyud' men were tbe^sis, and the 'twy>bjnd' mun ini^hl ur might not be. But tbeee things perbape bad oo more practical interest for Qlanvill, certainly no mors iw Bntcton, than they have for ua
In like manner, the privileges uf clerks in ocdeia, vbellwr of secnlar or ivgnUr life, do not call for close inreetigalka boe. Orden were r^arded as oooferring not only fieetWiM where any doubt had existed, but a kind of nobiUly. Tbsn was a special scale of wergild fur the dei^; but it was • qoastaon wheibur a prieat who was in fiwt of noble birth Bhoukl not be atoned for with the weigild appnpdafte to his birtb, if it cjuseedod that which belonged to his aoolew—ttol nuik. mm! soDM held that for the purpoae of wisgild uily the man's rank by birth should bo eonsidered.
It is well known tbat the saperior clstgy took (and witb good oanae) a targe part in legiilatMO and ibe direetaon of jMliea, as well as in general govenmwat. Probably
I ■AhM, flwitot, p^ SiS. MT. isi.
%. i«. TB) lUiikaA,
m a,] Am^SaoBon Lemi» 85
to them tha* AngkHSuoa kw haa left ns anjr written eride&oeB St aO. Blithe nalfy active and in^rartant part of tike oleigy L , m die frwnatkm <tf SDj^iflh law begku only with tiie oleKr fl aepaai>ion tfteMilow'artipal aad eiril aathori^y after the Conguaat W
We BOtrhftve to qteak of thennficee olaas.
Skifetj, penonal alaveiy, and not menfy aerfibm or villem- BUvwy. age iiiaiiialin^ mainly in attanhmewt to the aoil, existed, and wia fiilly renngniawd, in Bngland nn^ the twelfth oeaatuzy. We have no meaaa of knowia^ with any owetnoM the nmnber o€ di»ai^ eithier in itaelC or as oom]iaced with the free popala- ti(& Bat the leeocded msnuMawMiB would akme snffioe to ptvm ttat lSb» namber waa iaxgft. Honorer, we know, not only thak riavea wen bought and add, bat that a zeal akve- tade waa eatxied on from Eitglidi porta. This abase was inoroaaed m the eril times that set in with the Danish , iufaaioas. Baids of heathen Northmoi, while they celaxed aodal aadv and enoooxaged crime, bnmgfat wealtj^ dave- Q^U} b^yH% idio wonld sot ask many ipuationa, to the UDaarapaloas toade>''s'haad. But ^too wen exported from Bngland maeh eartiiWi SeBiag » man beyond the aeas oomn in the Tfentidi hum aa an altevnatiTe finr capital ponishmeat^ ; aad one obecon paai^e seems to nlate to the offbnoe of kidnapinng freebom men*. Ine's dooms forbade the men of Wessex to sell a couDtryman beyond seas, even if be were really a slave or justly condemned to slavery*.
Selling Christian men beyond seas, and specially into bond- siave- age to heathen, is forbidden by an ordinance of iEthelred, repeated almost word for word in Cnut's laws^ Wulfstan, archbishop of York, who probably took an active part in the legislation of ^thelred, denounced the practice in his homilies*, and also complained that men's thrall-right was narrowed. This is significant as pointing to a more humane doctrine, whatever the practice may have been, than that of the earlier Roman law. It seems that even the thrall had personal rights of some sort, though we are not able with our present informa- tion to specify them. Towards the end of the eleventh century
1 \nht. 96.
' HI. and E. 6 ; Me Sflhmid thereon. The slave-traders were often fore ignen, oommonly Jews. Ireland and Qaol were the main routes.
• In. 11.
• £tb^. T. 3, Ti. 9 ; Cn. u. 8 ; ct. Lex Bib. 16 ; Lex Sal. 89 S 3.
• A. Napier. BMrlin, 1688, pp. 129. n., 156, 160-1.
3—2
S6
Anglo*Saxon Law,
[bk. l
the slave- trade from Bristol to Irclabd (whcrv ibe Dttoui wot* ihrn in powf^r) I'nlloH forth the righteoui inHi^rnntion of Kn>itlMr WuirHtnn, the bishup of Woroeflter, who bt-ld his place lhnju|||k \hv Conquest Uo wcDt to Brutol in pereon. and »uoc««dM) in putting down thv KandalV Itt coQlinucd oxifit<>nci* till thjit Uiuu IK furlhur atluitcd by the prohibition of ilSthvlrtn) Mtd Ciuit boitijf yet ftgain rvpcatod in tho l*ws allribnlcd to WilliAin tliv Conijacnir*.
Frro m«a aoimtiinw nwlnvwi th«'mM>lrm in timiv of dtMtrwMii iM thi! tmljf iDttftns of mifaautmioo ; iiuuiumiMion uf such prraon* nft«r tbv iMcd wu pant would bo daeiaed a •pocially i»«r>* toriotiH work, if not a duty*. S(>m«tim*» wMI-Lu-do paopJa liuuglil slnviv, and immediatel}- afU'rwaitls friHtl them far Ibe t^V| good of tb«ir own Knifas or the cotil of aoinit anoettor. M a Uitt tim« we meet with foniuU aalee by Uie Icml to n thinl pemoo in trust (as we ahould now tay) to manumit ih<< *erf *. The Anglo-^^oii cawfi dn not Appear tn be of thin kind Sometimee a aerf ' bought himaelf ' free. We inay mppoae that a freedman was genermlly required or expecU^ to take his plaee among the free dependanta of bin former master; and the expren licence to the froedman to chooK his uwu lord, which is oocaMonalty met with, tends to show that this warn the rule. The lonl'tt ri^htti over the freedman's &mily were not affected if the freedman left the domain*. There is nothing to anggeat that fre«dmca were tnated as a distinct claw in any other way. What has jost been said implies that a boudnan might aMiutiw, and not uufrequently did acijuire. money of his own; and» in fiict, ui oitlinanoe of Alfred expressly makea the Wodnsaday in the four ember wedis a free day Icr bim. and deolana hia earaiDgn to be at his own disposal*. Motvover, eren the earliest wrilltA laws oonstantly aanme that a * tbeuw ' might be abie to pay fines for pobtio offm
• wm. lUloL Vila Walrtsal. la Whsikik Ai^Hs Bisrlj la (nil. P»Ma»a, Matmaa Cda<ttM>. It, Ml
• Ua» WUMni, t. 4L
• CM. tMpi. W. SO (muBBiiMkM by OwiJail of 'all Ih* ^ took for iMr foarf ia lh> •*« 1 iajt'i. Thto «a4 olbw w^taaltr Willi m J al tbnl «f Thmf*"* Dtfimmtuimm.
• L. Q. B. vU. M.
• WOrt. Hi u wabsk aadmltr. Imi ifaMa ii aoiUac 10 aaav aay
• JElf. iX (w IMbndl sad Ite LsMa vmtM tOmtt}. Cf. ThMd. tm. kfl. S iBmLUo aad BlakK CsaadK U. MQ.
CDS. il] An^Saxon Law* 87
Oa the wlu^ the evideooe seems to show tiiot seldom was omty math men oi a penonal bcmdage and less iuvol^l with the S&g*. oceopatioii of pertumlar land before the 'Norman Oonqiiest than after; in diort that it i^^noached, thou^ it <mlj approached, tile slaTCfj of the Boman Uw. Once, and only tmce, in the earfieet td oar AnglO'Saxon texts^ we find mention in Kent, under the name of lot, of the half-free class of pasons cailed Ukm and other Uke names in continental (k>oament&' To all uppetnotK then had ceased to be any each chus'in England befive the time of Alfred : ' it is therefore needless to diaciuB thear conditiwi or origin.
Then an traces of some kind of pablio authority having berai nqnired for the owner of a serf to make him fi«e as i^Bids tiuid persons ; bat from almost the eariiest Christiaa times nannmiaBioa at an altar hadftdl effiwt*. In inch oases a* wntten leoosd was commonly pareaerved in the later AngW Saxon period at any rate, bat it does not appear to have been 1^x4 nnnMBwy or to have been what we should now call an operative inatrament. This kind of manumisedon disappears after the Conqoest, and it was long disputed whether a freed bondman m^A not be objected to as a witness or oath-helper*. /"^
We now turn to judicial institutions. An An&rlo-Saxdn po°*** «»*
. . . . ° jiiBtice.
court, whether of public or private justice, was not surrounded
with such visible majesty of the law as in our own time, nor -
furnished with any obvious means of compelling obedience. It
is the feebleness of executive power that explains the large
space occupied in fuchaic law by provisions for the conduct of
suits when parties make default. In like manner the solemn
prohibition of taking the law into one's own hands without
having demanded one's right in the proper court shows that
law is only just becoming the rule of life. Such provisions
occur as early as the dooms of Ine of Wessex*, and perhaps
preserve the tradition of a time when there was no jurisdiction
save by consent of the parties. Probably the public courts
> £tbelb. 36.
* Wiht. 8: 'If one muiamits his mao at the altar, let him be folk-free.'
* OlanviU, ii. 6. Details on Anglo-Saxon servitade may be foand in Eemble, Saiona, bk. i. c. 8, and Larking, Domesday Book of Kent, note 67. See also Maater, Eritisohe Ueberschan, i. 410 ; Jastrow, Zor strafrechtlichen Stellnng dor Sklaren (Gierke's Ontersnohangen, 1878} ; Bmaner, D. B. Q. i. 95.
* In. 9. The wording ' wrace d6 ' is vague : donbtless it means taking the other party's cattle.
38
AnglO'Saatoti Law.
[bk. I.
were olwAja hold in tb« open air; tb«r« u do uentida of chun:htni beiog UMd for thu purpote, a pnetice which wu oxprewly forbiddpn in varioiu ports nf tho cf>ntini'nt when ooart hooMW were built. Privoli; courU woru held, when pracli- cable. in ibc hooM of iho lord having the jurtidictioo, a* ia »bown by the noino fuUimoU or hnJI-moot. This nan»o may indeud hnvu bt>im j^vrn to a Innl's court hy wajr of dongoad oontrast with thr opcn-nir humlrud luid utunly cottrta. Tba manurhousc it«elf ia ntill known a« a court in niony placea in the w«itt and aouth-f-aiit of EnffUml*. lialimcU it not fcoown. buwovor, to occur beforo the Norroan (^inqoeat.
So br aa we can lay tJiat thcro waa any regular judicial qfsUNa in Anglo-SaxoD law. it waa of a hij^ly arehaie typew W« find indood a claar enough distinction b«iwem poUie oBiiTOea and privato wrongn Liability to a public fine or, in grave caMs, corporal or capital pininhnent, may oonour witb liability to makti nsdrew to a penun wraogeil or alatn. ur to htM kindred, or to incur bin feud in default. But ueithiT tbew ideas nor tboir appropriatu terma are confuiied at aoj time. On the other hand, theiv ia no perceptible diflcn-nno of aa- Lhoritim or prtpceduru in civil and criniiiuil niattt'ni until, within ft century before the Gonqoeit, we 6ad eertoin uf the gnvor public offcDoee i— uied in a itpeeiftl aBaoiicr for the king^a juriadictioiL
The staple matter of jadietal prrwHirfingi wu of a rade and
aimple kinil. In au fiu* aa wa can trust the written lawa, the
■ only topics of general itnportaoco were manalayitig, woundii^
Mand cattJe-slealiog. So frequent was the last-Damed pmrtiea
that it was by no means easy for a man, who waa mindvd tu
buy cattle honuatly. to be aiin) that he was nut baying stoieo
beasta, and tbe Anglo-Saxon dooms are full of elabonUe pf«-
rautiim^ uo this hmd, to which wo alwU rstom pnaaotly.
rmmimim'^ As to prwrodaro, the formt w«rD aometimea eonpliealML
\ always stiff and unbodiny. Uiatakes in farm wen probably
l^tal at evflty etage. Trial of qnestiona of bet. in anything like
tEe modem aenee, was unknown. ^Ttwir "*** b{_ andeiw
make no atlet^ to apply any meaann of
< M4. Omally Coort, M. tkiwtm. Of. feMHd 8osM|r, Un. 0I»MU7, •. t. CwU.
■■wtalla •! ForlktMtc
teafa, Adb af D. B.
individual cases'. ^athVas the primary mode of proof, an (" ! oath goiDg not to ~EE^Truth of speciEcnfactTBut to the justice J
of the claim or defence aa a whole. The niunher of persons I
required bo swear varied accordiug to the nature of the ca.se ' '.
and the ituik of the persouB coEicemed. Inasmuch as the_oatLL. if duly made, was conclusive, what we now call the buideti of proof was^rather a Iw^efit than otherwise under ancient ' '
Germanic procedure. The process of clearing oneself by the full performance of the oath which the law required in the ^ r
particular case is that which later medieval authorities call -<
' making one's law/ facere legemi. It remained possible, in certain easea, down to quite modern times. An accused person • ^ who failed in his oath, by not having^ the proper number of B oath-helpers* prepared to swear, or who ynjis already disqualified from clearing himself by oath^ had to go to one of the forms of t!l»-i«] ordeal. The ordeal nf hot water appears in Ine's laws though
imtii lately it was concealed from our view by the misreading O
of oiie letter in the text*. Trial byjombat^was to alt appeamace
I unknown to the Anglo-Saxon procedure*, thungh it waa formally sanctioned on the continent by Guiidobad, king of the Bur- guodiauB, at the beginning of the fiistb century and Ls found in the laws of nearly alt the German tribes*. An apparently genuine ordinance of William the Conqueror enables English- men to make use of trial by battle in their lawsuits with NormaDS, but expressly allows them to decline it. This is strong to prove that it was not an English institution in any form". Permitted or justified private war, of which we do find considerable traces in England', is quite a different matter.
' Bnnuwr, D. B. G. ii. 876.
■ The DRial modem tenn * oompargator ' wu borrowed by legal antiqnariea from eoeleiUstioal soorces ia mnoh later timei.
* This diMovery is doe to Dr LiebermanD, SitzangBberiohte der berliner Akademie, 1896, xxxv. 829. The less common word eeac (a caoldron) was oonftiaed with ecap (baying) and the genuine reading was treated by the editors as an onmeaning variant.
* The appearanoe of orut (a correct Northern form=Eng. tomut) among the privilegee of Waltham Abbey, Cod. Dipl. iv. 154, is probably dae to a post- Nonnan seribe, for our text rests on a very late copy. At all events the charter is only a few years before the Conquest. However, trial by battle may well have been known in the Danelaw throngbout the tenth oentory.
* Bmnner, D. B. O. ii. 416.
' Leg. Will. n. (Willelmes eyninges isetnysse).
' £lf. 43. Sir James Stephen's statement (Hist. Crim. Law, i. 61) that • trial by battle waa only private war nnder regulations ' oanoot be accepted.
40
il|^0i0N9V|BWl!K«(ppV
[i«.i
s/.
Tile Anglo- Komuui Jadkaal comlMt twlongs to a paHiMtljr KguUr and rogiiUtod oounK or pructNxling. in w nrictly nm- LruUed aa any utbur pitrt uf it, uul hai no Imh sLricily dcfiuoii leg&l oODfCKiaeneoft.
A ' fbre-oAth,' distinct from the dufinilirc oath of proof, wma requirwl nf the party oomuwnciug a suit, anJmi the iuA coin* pUitjed uf were manifeat; thus a fareMWth vas nocdlaa if a man sued for wounding and showed the woand to the ooart A defrndant who was of oril reput« might be driveo by tiw fore-oath alone to the alternative of a thnt'-foM <«th or the ordeal'.
A« regarda the citnMiliition of Anglo-Saxon oonrta, our dirrct evideooe is of the wantieat We have to vupplenieat H ^X ilh indioktions dorived from the Norman and later tiniea. ^^k
One well-kiiowu peculiarity of the Anglo-Saxon peiiod la hat fi*<MilAr and eccloaiaatical o.urt* wor\- not Rharply wporuted, and tlm two jurisdictiona were hunlly diHtiitgui>lifd. Th<- l>L<%hafi frtT) ml in the ooiinty court; the church etaimcd fn- him a huge •bare in the din-rtioti of even aecnlar joetioe', and the daini waa fully allowed by prineea who could not be charged witt weakncea'. rmbubly tho biahop was often the only member of the court who yni'iMorf any learning or any tyauimauc training in public affiura
The meet general Anglu'Saxon term for a court or amembly empowered to do juttioe ia tfemii. In thin word t» indadad all aaifaori^ of the kind fmm the Icitij^ and hia witan' dinrnwaidiL FUc-gtmM. i^ipeani tu mriui luiy public court whatever, gnater or leea. The king haa judicial fnaotiona, but they are verj hr nmored from oar niodeni way of rvganliog ibe king aa tbo faoBtaui of jtuAioe. Hi* buatneaa ia not to aee juatke done En hie name in aa ordinary courw, bat to exereiBe a apeoial and
1 Ca. n. M. Bad th» o««rl;-prinud fSotm la Liabvnaan. OoodL OaalL p. 14. rron tbU, m far m U nuy W tnuiad. tl wooU mmb Lh«l % trifAi fcv»- aa«hBlgbtraltb»'«t«dibb*iaiiMdast loft •UttiicwflAtkaaa iha • ka«iiidlkb* •aa •§ Iba mmn 'ihaw fcilJ' ordaaL
* B4c. Ill' t (ihird qnartar tt taA mmtmrySi 'Inrtltalw of Nliy' la TlMfpa. AadMi U»*, u. SIL
■ UaiaiM. •• to «ka ■iiiSM H whlib larttaa wai teaa la
«MM aal wbM d«ka *M aaaaid attaeMr Mtta b kM«^
HMaakal A|v«alii to Ri^wt «l KmL Osatto Cnmm. Mti, ^ Mi Mifcw.
OaaaL BiiL sf lh> Cbvnli of Ki^Uad. SM B,
• *Wk 11 ■ H' daw DoC ifyMr to han Uhi oa oOalol tana.
CB. 11.3 Anffh-SasDon Law. 41
woTTod power which a nuui must not invoke onleas he has ftiled to get his cause hoard in the jnrisdiction of his own hundred^. Such &ilure of justuM might happen, not from ill- will ot COTrapticHL <m the part of any public c^cer, but from a powerfol lord protecting offenders who were his men*. In such easee the king might be invoked to put forth his power. It ia dbrioas that the {vocesa was barely distinguishable from that of combating an open lebellion*.
After the Nwman Conquest, as time went on. tffaft fr^"g*B rostioe became oiyaniged and reprulaif. and superseded nAm-Ty fljl the fiinctions <rf the ancienfi ««""*y '^"^ fcrt^J^^a^ ftTTUirt?i But *hf ¥^ff' r"*ftr *o do instice of an axtra^r^ni^i-y Und wim fur Im-i h'^ ■^'■'Kloned. The great congtmctiTe wwk of Henry
ILand Bdwaid ^ maHn i>. 1^^ I'mpftH^wt ffti. a tiqufl. Tn tl|fl
gJeSth and anteenth centairiftB jt cliAWftfj it^ vitalitT in the
modem q^atem of equity*. Down to our own time that system pceaerved the marks of its origin in the peculiar character of the oooatpalsioa exercised by courts of equitable jurisdiction. Dieobedieiice to their jmweea and decrees was a direct and ipeeaal cnttempt of ike king's authority, and a ' commiasion of tfLiq rebelluni' might issue against a defendant making default in a chancery suit, however widely remote its subject-matter might be from the public affairs of the kingdom '.
We have many examples, notwithstanding the repeated Jnrisdic- ordinances forbidding men to seek the king's justice except witan. after failure to obtain right elsewhere, of the witan exercising an original jurisdiction in matters of disputed claims to book- land*. This may be explained in more than one way. Book- land was (as we shall see) a special form of property which only the king could create, and which, as a rule, he created with the consent and witness of his wise men. Moreover, one or both parties to such suits were often bishops or the heads of great bouses of religion, and thus the cause might be regarded as an ecclesiastical matter fit to be dealt with by a synod rather than by temporal authority, both parties doubtless consenting to the jurisdiction.
' Edg. in. a ; repeated Cnnt, u. 17.
> Atheist. II. 8. > Cf. ^thelat. vt. (lud. Civ. Land.) B §§ 2, 8.
* Blaclutone, Comm. lii. 61. * Blackstone, Comm. iii. 444.
* CMC* ooUeoted in Essays in Anglo-Saxon Law, ad fin.
42
Anglo-Saxon Law
met'
The ch«n«rs that infonn us of vbst wms done. eapcoBlly in HOS and HSA, at the Mynoda or synodal conociki of CIovmIio*, Uui ' famoufl place ' whoeo situntion ia ouw matter of mert oon- j(*oLurc'. )rA%'u oo donbi that on these occasioos, at Inui, the ■UD0 aawmbly which in called a Hynod also acted as the witaa. Tht< secular aad opirituat fUociiooa of thoM gnat motrtiDgi might hnvo been diwriminntod by lay memben not takiiif; pnrt in the ecclesiaatical biisiiien ; bat it is by ou mvaos cvrtain thnt thi-y wrrr' In niiy caM it » highly probable that the pnihibitioni abuw cited were ncTer tuuiuit to apply to the grrat ntea of the kingdoni. or royal foandatioiM, or the kinjp'i iinmt^iatit folluwura. CinriTuri Thf ordinarj- Anglo-Saxon courtii of pablio jnstice wero the oovu. oounly amrl and tho hundnid coari, of which ihft nMlli'y **'^«*"* wan apiMiiiilfil to be held twice a year, 'Ho. ^^np>l^>«^ \-\ffy r.^it- weekaV Ptxir and nVh men alike w«nr entitled U) bare right doDo to thcni, Lhimgh the nutnl uf emphaamog thin •UoMtitaiy point of law in the third qoorter of tho tenth ecattiiy iQggiMto th»it tht* fact wai ofieo oUienriae*.
TlmH the hondred court waa the judicial unit, eo to epcalt. for ordinary nflOurvi We have no eridenn that any Ummt public court existed. It ii quite possible that socm sort of towntihip meeting was held for the regulation of lb* eonnDon- lield huabondry which prvvoiU'd in most port* of Kngknd : and tht> total absence of any writtaa record of soch meethifi. or <io &r as we know) alluaian to them, hardly makes the fact Issa pfobablu. But we have no ground whatever for nnnrlwtMij that the townahip-moot, if that were its name, bad any property judicial functions. ' Maric-moot,' wbtcb has bc«n supposed to U< the name uf a pnuiory oowi, appean mtbsr to mean a oomt held on tbe monbat of oc^jaosiit oooiitiea or huadrsds, or perhaps on the boundary dyku itself".
The ofdiuanocs which tell us of the times of meetii^ ap* pointed for tho county and hntMlrFtl courts tell ns notkiag^ wtatevvr of their prooednra It may be taken aa eertaia,
1 aiMu sad 8lal*i^ OSssilto. UL MI. fi«ft.
' Bsrti. Uad Cbsrtm. ««>. * IssMs. Ssssss, M. MT. Mi.
• sac. t. 1 (tlw iiMliSIri of lldi ocdUuuM Is Ugsr u .sssl WW to Bi tu wUnI pamMm 4t0», BAaU, ^ ahpfl.} UitoHH^ OMII. ^ v.); Bdg. Ok S.
• Ot SibaU. OlMMT, «. r. wsfvi M^HmJ. Piiaafcu Bask. 171.
■■*■.
'.-^c-'-
COL m} An^o-ScoDon Law, 43
bnwetrej-, ihat^hey had no oStoient mode of ocnnpeUiiig the Attoiidanco of parties or enforcing their (»dera. A man who refilled to do jiiatiee to others aooprclii^ to the law could only be put out of the protection of the law, save in 1^ cases whieh were gmve enongh to call for a special expeditioa against him. Outlawry, developed in the Daoish period as a definite part of English legal process, remtiltied SDoh'imtil oar own time. All this is thoroughly churacteristio of azcfaaio legal systems in general N^othing in it is peouliarly Wngliwh, not much is p^tiliarly Gerruaoic. • '
Thus far we have spaken only of pnblio jnriadiotaon. ButPrinto we know tbat after the Norman Conquest Enj^and was ooveredikHL with the private juriBdictions of lotds <tf Tsrioas d^frees, from the king hinu»elf downwards, h(dding oonrfaB on their lands at' which their tenants were entitled to seek justice in their own local afiTairri, aod hound to attend that justioe might be done to their fellowa ' Court baron ' i» now the most usual technical name fvr tt court of this kind, but it is a comparatively modem name. Fnrthor, we know that private JnrisdictioQ existed on the coDtiu^Dt unich earlitr, and that it existed in England in the early port of the eleventh century. It is a qoestdon not
[p.V) free from doubt whether the institution was imported from the continent not long before that time, or on the contrary had been known in England a good while before, perhaps as early as the date of our earliest Anglo-Saxon laws and charters, not- withstanding that it is not expressly and directly mentioned in documents of the earlier period. For our present purpose it is enough to be sure that private courts werq wpiH paf-abliflbftd fttt the date of the Conquest, and had been increasing in number "jnd power tor some time'.
[>.ji] Proceeding to the subject-matters of Anglo-Saxon juris- sobject- diction, we find what may be called the usual archaic features, w}^ °' The only substantive rules that are at all fully set forth have ^''"^"" te do with offences and wrongs, mostly those which are of a violent kind, and with theft, mostly cattle-lifting. Elxcept so &r as it is involved in the law of theft, the law of property is almost entirely left in the region of unwritten custom and local usage. The law of contract is rudimentary, so rudimentary as to be barely distinguishable from the law of property. In fact people who have no system of credit and very little foreign
> Haitlaad, Domesday Book, 80 ff., 358 ff.
44
Aiifflo-Sfucon Law.
[bk. 1.
I
TlMlil«*«
tmdfr, and who do nearly all their biurineai in petMO and by word of mouth with neighbonra whom thoy kmiw, have not much oocaaioa fur a law of cootraL't. it is not our pnrpoae to eooiider in this place the relation of Anj^lo-Saion onstoow and ordiiiADoei to thane of Qormanic nations on the continent ; to inquire, for exampK*. why the Salic or thif Lumbaid laws «bould preaent atriking reoemblancca even in detail lo the lawa of Alfred or Cnut, but provide with equal or gnaater minutenaaa for othiT Himilar caaea on which the Auf^lo-Saxon nuthontioa ant «lent. In the period of witiquoriiui cumptlation which aet in after the Norman Conquest, and of which the ao-oalled tawa of Henry I. are the mont cocupicuoua pnduot, we aee noi uoly imitatiun of the continental collcctiomi. but flumotimca vxpreaa rvfoivnce to their nilw*'. But lhi« kind of refen-nce, at the LkM, hiuida of a compiler who could alio quote the Theodoaian onde*, thrown nn light whatever on the poaribilitjaa of Hfiiliiiiilal influence at an earlier tima It in highly probable Uutt AUM and hia Mooi—Bfi had learned pemonH about th^m who vara more or leaa aequniiitc'd with Prankiiih legialalion if not with that of remoter kingdomK. But it >aAoea to know that, in ila gaooml AMtona, Aoglo-Saxoo Uw is not only archaic, bnt offen aa «q»ccial)y purr type of (lermonir jirrhaiMm. W« are tbara* fan wnrr^tod in auppoung, wherv Engliidi authority hlla, that the Englinh uaagea of the Anglo>Saxoo period wens goncimlly like the oarli«Mt corraapoDdiog oiMi of whtdi eridcooa ean ba found an the ooalinent
Fn.-«crv»Liun of the paaoe aad puni«hnw«t of offepeaa ware dealt with, in England oa «Uewhi!i«, partly aniler the ctu juriadiotiop of thy looal «9Mifr partly by _
tif tha Iriqg In Rngfand Uiat aatfcorily gnKhuIly anpennled all othem. IM| iiimiiiid iiffiiinie hail) |faur \}\^ aii) tn ^l "■"'■"■i""'^ "fp'Mli **** ^'UjT peace: and thti phnuc, along with *the king'ii highway.' haa paoaed into corainon nae aa a kind of omarorat of «peeoh, witbcmt any clear Mine of ila hiatoriaal noaning. The two phnaea aie, indeed, intimately connected ; they ooma from thtt time when the king'* pnitectioc waa nut
> Uk. Dm. •. 17 1 10. f» 1 1. 1 hp» BttvoriaraB Mhnlnr.
mmm$ nfenl mm»m.' TW ^aatettoa U nally i BflMMM VMgiAaran.
•f HmUs
OL tl] Anglo-Saxon Law. 45
VBBSwenaX bat particalar, when the king's peace ^ras not for all BGMB Of all plaoea, and the king's highway was in a special manner protected by it Breach of the king's peace was an act of pessoDal disobedience, and a much graver matter than an ov^iaiy faceacb of pabtic order; it made the wrong-doer the king's enemy. The noti<Hi of the king's peace appears to have had two dis^ct origina These wen, first, the special sanctity of the king's house, which may be regarded as differing only in degree fnm that which Germanic usage attached everyiwhere to the homestead of a free man; and, secondly, the special pntoetioa of the king's attendants and servsmts, and cfther penoas irbam he Uiought fit to place on the same footing. In the later Anglo-Saxon period the king's partioala]r protection 18 called prA) as distmct firom the more general word friS. AHboogh the poper name is of comparatiTely recent introduc- [^■1 tun* aod oi Scandinavian extraction, the thing seons to answer to tike IVankish a$rmo (nr verbum regis, which is as old as the Salic hw* The rapid extenaon of the kin^a peace till it beeoDMBi after tiie KtMrman Conquest, the normid and g^eral aal^nard oi pnbHo order, seems peculiarly English*. On the eaatijaeaxi the king appeus at an early time to have been recognized as protector of the general peace, beeddea having power to grant special protection or peace of a higher order*.
It is not clear whether there was any fixed name for the The general peace which was protected only by the hundred court ^^. and the ealdorman. Very possibly the medieval usage by which an inferior court was said to be in the peace of the lord who held the court may go back iu some form to the earliest time when there were any set forms of justice ; and there is some evidence that in the early part of the tenth century men spoke
> See A.-S. Chron. ann. 1003.
' FoBtel de Conluiges, Origines du BjBUme f^odol, 300 ff. Lex SaL xiii. 6 ; ItL S. Edict of Chilperio, 9. To be out of the king's protection is to be extra termonem tttum, forcu nottro termone. In xiv. 4, praeeeptum appears to be the king's written protection or licence. The phrase in Ed. Conf. 6 g I (cf. Bmnner, D. B. G. il 42), ore tuo utUigabit turn rex, or, aa the second edition givea it, utlagabit eum rex verbo orit lut, looks more like the confused iniitation of an archaizing compiler than a genuine parallel.
* For some further details see Pollock, Oxford Lectures, 1690, ' The King's Peace,' 65.
• See Bninner, D. B. G. ii. S3 65, 66, who calls attention (p. 42) to the reUtive weakness of the orown in England before the Conquest.
46
Anglo-Saxon Lntw,
[bk. I.
of lh« pCAoe of the wiunV We bmva not found Engliuli •otbority lor an; such tt*mi u /otk'ptaM, which hia sooMtiaMB bMO UMd in imilatiuu of Ocnnan writen. No lif^ht i« thiown on oftrly An^Io-Siuon ideu or methods of kecpinj^ the peace hy thp prnviitiiin that cvurj miui Mhtill Ihi iu a humlrwl luid tithing, fur it first apprant in this dctiniLi.- funii lU tht' laws uf Cuut*. and both it« hi»tor)' mid mt'oiiinf; mv dtdputable. Thin, however. is a mntt«r of adminiHtratiro mvchanimn rather than of the law iteelt We shall have a vonj to say about thiii fnatt*^ when heraafter we apeak of fmnkpledge.
In Anglo-Saxon a« well as in other Qermanic lnw« we find that the ideft of wrong to a. ponan or his kindred » efciU ynnmrf^ luid that of offence against the oonunon weal eeconHaiy. ereo jo the gmvest caaos. Only by degrsea did the laodeni pripciplea pwTail, that the n>oinbei» of the community must be^cJoo-^ ^t with the reroediae aflbwied them by law, and muat nnt eeek pnimte venfpanee, md that, on the other hand, puhlie
ngwiflflftynnnt \m fiffp^m^ y flmppminfm [ly p«»«*^ faMIT"*
PerMHial injury is in the finit plaop a cauae of frad. of private war between the kimlrMls of the wmtig>duer and of the pcnon wronged. This must be cnrcfully dtetingniabed fron • r^t of spooific rctaliatiun, of which there «r« no ttMeee in Germanic law*. But the feud may be appMaed hf the aeeept- anee of a cumpamiliou. Some kind of arbitration was probably reeorted to from a irery early time to Ax the amoonL Tbi next stage it a eoale of oompeDaation filed by ovaloiD or enactment for death or minor injurira, which may be giBdoated aooordiug to the rank of ttio potaoa injurM). Such a acale may well exist for a ttmo without any positiTe duty of the kindred to accept the ooinpoeitiim it ofllen. It nay aerre only the purptwe uf saving disputea as to th« amount proper to be paid when the pariiea are dtapoeed to make psaoe. Bat tlua naturally loads to the kindred being firat expected by pablie opmion and then requiivd by |Hiblic authority not to panaa the fend if the proper oompadtiop is forthooming. exovpt in a
* miw. n. L SAbU. UloM. a. r. rHtdt, -— 'Tt- Mm hn« ban Um UsfH pas* ta ams hbm. TkU te^i uifaority, ■iiiliil M n«w4i lbs oddUbmIi ftraaa*. O. a O. U. «S. li fa mrtk tWa M17 talk sfenl tb* •lolk'pHMs.'
• Cb, tx. «k.
> JSll fniat. ie.«>>bd ftoi Ifcs Udfc W fillip haimnmmo
(P-HJ
CH. U-] Artgio-Saxon Law. 47
few extreme oas^ which also tinally di^iappear. At ihe same time, the wrong doue to an individual extenda beyond his own
I family; it is a wrong to the community uf which he is a member; and thus the wrunjE^-doer may he regarded as a public eacmy. Such eipressiQUs as 'outlaw against all the people' in this Anglo-Saxan laws preserve this point of view'. The ooaoeptioQ of an offence doue to the sti\te in its corporate penon, or (as in our own system) as represented by the king, ii *>f later ^^wth, Abbolute chronology has very little to do with the &tag€ ofTaHfluf growtJa or decay in which archaic institutions, and this one in SS^*" particular, may be found in diffyrtnt countries and times. The Homeric poems show us the blood-feud in full force in cases of C^»l maoslaying (thcro is little or nothing about wounding), tempered by mn«om or composition which appears to be settled by
^ agreement or arbitration in each case. In the classical period of Greek histor>' this has wholly disappeared. But in Iceland, M late as the time of the Norman Conquest of England, we find a state of society which takes ua back to Hntuor. Manalayin^ and blood-feuda are consttmt, and the Bemi-judicial arbitration- of wiae mea. though often invQked._is butimperfectly Hucccasfui jn RtA^-inr^ brearbe» of the penre and Tep.nnpilingr ftdgflfMJiefl.
A man's life haa its price, but otherwise there is not even any recognized scale of compositions. In the Qermanic laws both of England and of the mainland we find a much more settled rale some centuries earlier. Full scales of composition are established. A freeman's life has a regular value set upon it. called wergild, literally ' man's price ' or ' man-payment*/ or oftener in English documents wer simply ; moreover, for injuries to the person short of death there is an elaborate tariff. The modem practice of assessing damages, though familiar to Roman law in the later republican period, is unknown to early Qermanic law, nor were there in Qermanic procedure any means of applying the idea if it had existed. Composition must generally be accepted if offered; private war is lawful only when the adversary obstinately refuses to do right. In that case indeed, as we learn from a well-known ordinance of Alfred', the power
> Cp. arettU Sagft. e. 79.
■ Bmnoer, D. B. O. i. 86. An arofaaio synoaym U/id occurs £tbelb. 32, 38, cp. Orimm, 662, * £lf. 42.
48
Anfflo-Satxon Lcuo.
[UL I.
4
hdL
of th« ekldoimftn, and uf the kiuf; nl need, may hv culIM m if Um pUiatiff is nut aLraug eouugh by hinuMlf ; in mher word* th« ooDtanuciouB dimior of justice may be dc-AU with a» mti onetny of tho ctxnmoa wealth. At a Miin<*what )aU<r tiino «rc fib'l th(t aret'ptAoce and payment of ocnpotiltolM imftiiffad by putting the obligutiou bofcweeo ihu partiaa nndv Um fpedal mnciion of the king's peaoe\ But it was at Irwit theoretically pOMlble, down to the middle of the tenth cvntury, fur a mnn- ■layer tu vioct to bear the feud of the kindred*. Uta own kindrvd, howovpr. might avoid any aharv in the feud by dia* cUiniinj; him ; any of them who mnintaincd him aOT thi*. m well fu any nf tho avenging kinalblk who intMldlMi with any {p. but the actual wrong-doer, vaa deemed a foe lu the king<the stroDgetit fonn of exprecuiing outlawry) and fiivleited all hb _ property. ;m^' We 6nd the public and private aspect* of injurious ads pretty clearly distinguiKhod by the Anglo-Saxon terms. 1f«r, as we have mid, is the value set on a man'* life, inenwuig with his nmk. Fur many purpoaea it could be a burdm aa weU as a benefit ; the amount of a man's own wtr vm often the measure of the fine to be paid for hia ofleacea agaiatt public ordrr. Witt is the usoal word fur a penal fine payable Ui tbe kioi; or to Mmw other public suthuritj. Btk (the mudeni Ocnuan Burnt) is a men gttieral word, including oompemati^m of any kind. Some of tht^ grmvifit ufTerioea, especially against tbe king and his poaoo. ore said to bo Utfsdi; *bootIesi'; that is. tha oflfaoder ti not entitled to radeom himaslf at all, and ia at Um kiogV mPTcy. Tho dtstanetkia between hw and wA« most be very ancient ; it ouiivepuuds to what is UiU n* of Of nil— ^^ custom by Tacitus*. ^^M
The ((tily pnnishmeots. in the proper smiss, ganvrmUy appti- ^' cable to frx^men, were money fines, and deatli io th« axteeaw cassi whaiv redemption with a mousy fioa was oaC aUowed. k cTMliblo tnulition pnaerred in the prokigoe Io Alfred's law* tells us Uiat afler the eonvsaitA of the GmUab to Qmaliaiuty
> Urn. u. T. Md »• ir#rytu» (ftifc^lj A9p. ««.) 1 1.
• K4n. a 1. JtUwir. u. « | 1, ■^■■••balhafiQj ytw* As^i. baviag Am o^m wlUi Um tiun aiui't kitkJnrf sImm. Ihnngli mA U baU to kata Imm A» MUM nik Ml 1^ •oaUai t llfisair. D. BL O. L IIS.
• Tsc 0«ia. a. U. Ml ta al^dj iiwimr «lih -faaMw'i Ite Mm la •Mi.'
OH. n.] AngUhScoBon Law. 49
tin fai8ho])B'aiid wsBe-men ' for the mild-heartednees sake that ^rist tanj^t' flBActioiied the redemption by fine of offences Imb than that of treason against one's lord^ Mutilation and o&er oorpanX ponishments are prescribed (but vith the alter- native oi redanpti(ni by a heavy fine) for fidse accusers, ^r halvtoal criminals, and for persoas of evil repute who have filled in the oideal'.
Imfnaonment occurs in the AjagioSax<m laws only as a means (tf tasporaiy security. Saves were liable to caintal and oAsr cocpoml punishment, and generally without redemption. Hie detafls have no materiid bearing on the general histoiy of the law, and may be left to stud^ts of semi-barbarous mannere. Ootlawiy, at first a declaration of war by the oomnumwealth i^ainstAQ (rfEending member, became a r^fular^means of com- pdlii^ sabmisnon to the authority of the courts, as in form it oontinBed so to be down to modem times'. ,In criminal pro- lf.tt} oeedingA however, it was used as a substantive penalty for viident resisfcance to a l^fal process or persistent contempt of eoQft*. B^ve die Ctmquest, outlawry involved not only fatftitoie of goods to the king, but liability to be killed with inpomty. It was no offence to the king to kill his enemy, and the kindred might not claim the wergild*. It was thought, indeed, down to the latter part of the sixteenth century, that the same reason applied to persons under the penalties appointed by the statutes of praemunire, which expressly included being put out of the king's protection".
It would appear that great difficulty was found both in DiiBcoities obtaining specific evidence of offences, and in compelling accused lHj^m^ and suspected persons to submit themselves to justice, and pay ^'^" *** their fines if convicted. This may serve to explain the severe provisions of the later Anglo-Saxon period against a kind of
I £If. Prolog. 49 8 7.
> In. 18 ; M\t. 82 ; Cn. u. 16, 30. The ■ folk-leasing ' of Alfred's law must be h&bitoAl false aoousation in the folk-moot, not private slander.
> It was formally abolished in civil proceedings onl; in 1679, 42 & 43 Vict. c. 59, s. 3. In criminal matters it is still possible. But it has not been in ase for a generation or more.
* E. & O. 6 S 6; op. Edg. i. 3 ; £thelr. i. 1 § 9, and many later passages.
* E. ft 0. 6 S 7 : the oatlaw, if slain, shall lie Affytdt, the exact eqnivalent of the Homeric n^ouvt.
< Co. Litt. 130 a ; Blaokstone, Comm. iv, 118 ; 5 Eliz. o. 1.
P. H. 1. 4
Anglo-Saaoon Law^
[bx.
hull*.
pannnM dmaribiHl m ' frequrntly aoctued/ ' of do crodiiV Otw whu had bMn Mvsml tinwM ebargoU (with thffV. ii mtm% «« mu»t nndentaiid), mk! kopl amy from thrrc courta numtog. might bv pamutfd and vratod as a thief, And Irestod «« aa ouilnw if ha fulvd to givii MHrurily to answur his ttoeuaan*. A mail uf evil rupti(« in iilrt«dy half cuodL'iuuod. and if h« ovadaa jostiou it is nl) hut conoltunvv proof nf j^nlt. In cnmmunitica whero on huiuiat man'ii Dvl)chlH>uni kiirw pri'tt^' wetl what ho was doing overy day and miwt nf tht> iljiy, thix pnibnblv diil not wurk moch injoatieeL. Aud Kit^^liah cntmiuU pnxxiturc null hoM to this point of view two centuries after the Cnuc(UC8C It may be aaid lo liogw evoo now-a-daya in the theoratical power of gnad juries to proaont ofienoea uf their own kuuwludgak
Several panagcs, and thcae from a period of oompnrativaly saktk'd f^ivenuiieut, nhow that firval mi<n, wh(iM* fulUiwera had conunittcd crime*, oflcu harboured aud maiutaiticd tbeni in open dvBanoe uf ooBmum right*. If it was naedftil for Athebitan, the victor of Brunanbnrh. to make ordiiuuicmi againat Uwlna- oeaa of ibiji kind, we can ouly think that weaker princes kift it witboot remedy, nnt booause the evil was leas in their daya. bat becawe Ibey had ou |iower to amisHl it. The »me thing waa ciimmmi cuouji^h in tho Sc«ittt«h highUnds a« late as the early part of lh»! uighU'-uuth cuntury*.
Putting together theae indioatiooa of a feeble eMeafcira powBT. wo are apt tu think that the abeanee of ferial by bsUla from Anglo-Soxun prvMX-durc can beet be explained by the peraiateooe of extra-jndicial fighting. QoDdobad of Burgundy, and other Ctamanic rulera alter him. tempted their snb^ecAa into coort by a kind of oomproouao. It ia hardly pnadble lo sappoae that their ostensible raMon of avoiding perjury wae ||m real one. Rather it was undemtoiKl, ihnogh it ooold not be officiaUy cxprpaaid, that Burgujidiau ami Lombard'
I
< 1^. iai4y«<f , >Im m$tt\$mu Ul iMMMUfaL ns i^s !• As
wmmkf BolefUtyt «• flsaset Bod Is Iba tot, ■• mmm ■iHwi hsw 4a«», s tmtk)mi M (M«7 lo lb« ytiyli •• • fymmL ■gMr«<<s-
■ Bd(. 111. T i Cik n. tt : «p. a». St.
> AhdA. n. a. *pL 17} n. I. C^n. * ,- — y ■-' -« —
• a. BsUUi NiMi Jsrrii «e Ua MsM of iks Hlglihj^. Bsk Ssr. IL sk. II <ariifasi wIMMiU
• LMVBSDd arHAf np<rtM Oal Md Iqr ontel «aall aia h« Ue»r.s.lt»i'iawfU— — 4sta<rts*4.»4Ma«» ■aJJsi— y
a
CK il] Angh-ScuDon Law, 51
would sabmit to being forbidden to figbt out of court on tbe tenns of beii^ aUowed to fight under le^ sanction, thus OOmbming tiie j^ysical joy of battle with the intellectual hunrj of Btarictij finrnal joooedure. It Beema plausible to aappoBB that the mechanism of Anglo-Saxon govenunent was Bot comiiKiDly stnmg enough to acccnnpliflh ev^i so much. All tins, however, is oonjeotniaL There ia no reascm to doubt that among some Gennanio tribes battle was recognized as a form of ordeal from Toy ancient timee; we have no means <tf solving tiie oherior qnestioa why those tribes did not include the aneoatow of the ' Ai^jlo-Saxona
Oflbnoes qvecially dealt with in various parts of the An^o- ^M^ Saxon laws are treason, homunde, wounding and assault (which, tnuoD.' however, if eranmitted by free moi, are more wn»gB than flfuaea), and theft. IVeascm to <Hie's lord, especially to the idn^ is a oqpttal crime. And the essence of l^e crime ^ready eonasto in oompassiz^ or imagining the king's death, to use the later language of Edward IIL's Ftoliament^ The like appears in atiiet Qermanic documents'. It seems jvobabte. however, that tins does not reiweeent any (aiginal Gomanic tradition, bot is borrowed from the Roman law of nuMsbu, of which one main head wbq plotting against the lives of the chief magis- p. 29] tiates*. No part of the Roman law was more likely to be imitated by the conquerors of Roman territory and provinces ; and when an idea first appears in England in Alfred's time, there is no diflSculty whatever in supposing it imported from the continent. Not that rulers exercising undefined powers in
nne iiutitiB oaasmm Boam perdere: Bed propter conaaitDtiDem geotis nostrae UnjTobardomm legem ipsam aetare non possatnua'. Avitaa, bishop of Yienne, protested against Gaadobad's ordinance. At a later time Agobard of Lyons denonnoed it See Lea, Superstition and Force, ed. 4, p. 409. ' MU. 4.
* Ed. Both. 1 (L. Langob.) 'eontra snimam regis cogitaverit ant oon- liliaTerit ' ; L. Sax. 24, ' de morte ooQsiliatas faerit ' ; bo L. Baiow. ti. 1 ; L. Alam. 33: 'in mortem dnoiB oonailiatuB faerit'; op. Brnnaer, D. B. G. ii. 688.
* Tbe following words no doubt sabstantially represeat the text of the lex Julia: 'Caiaare opera eomilio dolo malo comiUum initum erit quo quia magis- tratos popali Bomani qoive imperium potestatemve habeat oocidatur.' Dig. 48. 4. ad 1. laliam maiestatie, 1 § 1. The coiuiliaverit, eowtiUatuM fuerit, of the Germanie laws can hardly be an accidental resemblance. In Glanv. xir. 1, the principal terms are mnekinatam fuiue vtl aliquid fecii'e, but coiuiliam dedu$e ia there too.
4—2
52
Angio-Saxon Law,
[bkTT
ft rude flrut« or wcwty tieeded the £m Julia to t«ftch Ihom thr impr^rUuiOf.- of putting down cuni>ipinirii.<N at thi' ivirlit^ pcmibUr aUkgn. W*) nrt' now ft|>t«king nf thu formal couttciatioii uf th« rale. On the oihrr h&tid, the oIomc wocfatiea of lUMnn i^aiiut the kinj; vrith treason ii^iiist onf'x {lenunal Utni who Ui not the kiug ia vminently Gormitnic. l*hiii wiu piw- aenred in the ' fw^)r trewon* of Mutlievu) mid modtmi crimiail Uw.
The crime nf trMUMm wun unatoiiaM<*', and tho chju;g« to bo rvpvllecl by mi i«itb iuliMpmt«< in nuntltrr of oftth-btlpan, aod perhapfi iii aolemnity, to the wcfgild of cho king or other lord an the oMe inij;hi U* If the MOtMod oooU Dot c\mr hinuiilf by oftth, aod was driven io otdeol, he had U> irobmit to the threefold ordoal*, that in, the hot iron was of thrve poundii* weight iiurtead of one jKiund. or the arm had U> bt* |tlaogt,'^ elbow-dc«p ituteod of wnst-doop into the boiling water*.
Homicide appean in the Atiglo-Saiou dixMna aa a inattar fiir comiKJAitiim in the ordinary owe of ulaying in opu qnarrat TbtiTv an: additional public pi*tialtiaa ta aggrarat«d omm. aa where a inan ia Alain in the king* plwiKti or otbenriM in breach of the king's pwoe. And « vpeml application uf the t^flf king's protcctiao is madt to fitvonr of fltmogon; a matter of aoroo importanoe when we renumber thai belbra tlw tine of Alfrvd a Mrrciau was a stmugtir in Kent, and a Wabbx mau iu Herein. Two-lhinJn uf n slain (ttrattgiTs atvr goua to (be king. We find a mdinirnt of thv ntmlfm distinctkia betwovn mtmier and tnanslaughter, but the line is drawn not between wiUbl and othor killing, but between killing tiptmly and tn secnt. It would KH'm indeed that ' morO' at oa« time meaat only killing by poison or witchciafL The o&tnoe of * norti * waa nnatnnehle^
1
• Jat4| ttlhdm a.4t JttlMfc.T.10CTt.iT; ce.o.w. TUiImI ia fta IttMBi Iwns. woaU aol kUow paiestian ky — ih Idifi at sB. kal «^ Ihi ■■wwl ilislthi In llw trisil Bo fwl a Am^ wt Ihs puifai Uw m» Manalj hsv* bws inlsnjrf. JCtbrfnl** ordbiaM*, n. S7. mq^na lk« '*■!— osUk* whslmw Iba <mHi Cp. Oodwtiw'i eatli ' cus KHIw M* JU«lfM prtsaly- Aoft m aialMri* AiKBioritHU,' Klor. W^tinu i. t9&. IVmiM} Huiab tea Hay kaM hiaa atoiaiw thsa Bi«Usk. W« bnr of m oaiit «( m Umbm acukMt tks «kM|s «l tehUatf » tttrmi B* wU*4f4. BakisU. Af^ it. In ■|i|MiwiHy ■< DuMi ntWHrtae i ms Bnaaar, P. IL O. ii tM. TU JUliMiU ra^ataw la sna qarial mm aa oaik al U or ifM n bm.
• Mg. L ti IMto *■ MHa fMM aarf aww*. Bi^ Ai*. s«L
'fwy-
QB. it] AngUhSaaoon Law. 58
Mid Ae moniterer, if aBoertuned, mig^t be delivered otw to the dead mn's kindied^
A&'oatbnr.iai£^,wweliave8eea,be&laui with impnaity ; {^^^^^ and it mi not only lawful but meritcttioas to kill, a thief flying from jQsfcijae*. An adulterer, taken fn ^agtxitUe delicto by the vomaa'fl lawfal htuaband, &tiier, Inother, or scm, might be killed wifcboat risk of blood-fead. In like mamier h^nieide wb9 CTCiHiaMft when the slayer was figfatii^ in defnkoeof his hnd^ or of a Buui whose lord he was, qr of his kinsman; bat a man muHi iu no cusa tight agaiuat hiH own loxd*. A man who slew a thief (or, it would seem, any one) was expected to declare the fact without dek^, otherww the dead man's Idmlred ttkight rdfe&r hiH fame by tht^ir <mth and raqnire tiie slayer to pay wergild ob for a true man*. We do not find any fimoalitiee presmb«d in th<? gonuino dooms. The safiest course would no doubt ha to report to the tirst credible peMcm met with, and to the tirst accessible person having any sent of aatiuuity*.
Injuria and tissaulta to the person were dealt with hy a ftwwal luinuto scale of fixed compensaticHi^ which appwn, though ■raeh afaiidged,a8 kite as the Anglo-Norman compihitions. Bat ^^ roles of tins kind ore not heard of in praotioe after the Con- qnesfc It is worth while to notice that the oontumelioas outrage of binding a free man, or shaving his head in derision, or shaTing off his beard, was visited with heavier fines than any but the gravest wounds'. In the modem common law p. SI] compensation for insult, as distinct from actual bodily hurt, is arrived at only in a somewhat indirect fashion, by giving juries a free hand in the measure of damages. Accidental injuries are provided for in a certain number of particular cases. A man canying a spear should carry it level on his shoulder in order to be free from blame if another runs upon the point. If the point is three fingers or more above the butt (so as to bring the point to the level of a man's face), he will be liable to pay wer in case of a fatal accident, and all the more if the point
1 Cn. n. 56 ; Hen. 71, 93. See Schmid, OIosb. b. v. morK, and cp. the old NoTBe »d«ge, 'Night-stayiog is marder' (Natt-vig er morH-vtg); also Lex Bib. 16.
* In. 85, op. 28; £thelBt. ti. (lud. Civ. Land.) 7 ; op. Ed. Conf. 36. > MIL 43. * la. 21.
* Hen. 88 g 6. The detailed iostraotioDB for laying oat the slain man with hifl arms, etc., are carioaa but nntrustworthy. The main object was to show that the killing was not leoret.
* MU. S6. For continental analogies, see Braoner, D. B. O. ii. 674.
54
Angh-Saapon Law.
[B«.L
were in front (m) that hv coald have w«n the othiT'n djingvr)'. TbtH ifl mticmal euoagh ; but iu the cam of bum ooaBtag av«D by paic AcrJdenl froni a dittinct volantary act, w« And that tW actor. hnwoTcr innocont his intention, in liable, and that Um qufBlion of negligrnre ia nut conaidend at all L^ffia mim Mf qm itiaciettter peecai, aciwttr tmtndt4, Mya tbo coraptlor of tbv ao-rnlled Iawh of Henry T., timnslatiog what waa doabUeM ao English proverb* Tbore ia no earlier EngiiJih authority, but such ia known to have been the principle of all old Ocimmue hkW9. It weini to have oxtended, or to have been thought hj some to f*xteud. even to ham done by a strnngtr with woapom which the ownrr hail left nn^uanlrcL Onut's laws oxpready dt-elajv. 00 if il won.' at leiut au iinitcttlod point, that only the actnal wrong-dttpr Nhall be liable if the owner coo clear bimaBlf of having any port or counaol in the minchief '. B4>rn>wing or »t<*aling another man's weapooi. or gvtting them by foire or fraud fri>m nn annoiirrr who had them in charge fur repair. •eem« to have been a ralhvr common wny of obecuring the evidence of manxlaying, »f making falae eviduDou; and it woi a thing that might well be done in oollusioci. One auw would bi< ix-ady to swear with hii iwtb-bulpcra, * I did not kill him/ the other, with equal oonfidenca, ' Ko weapon 4^ misfl kiUed him*.' And in cnbw«{aaDce, it would aevm. of the gOMra] aga- picion attaching to every one |MMtibly conoenwd, an artmiurer (p ma bound to anmrar to tbe own«r ae all haaarda <ualaa il wen agreed to the oontraiy) Cor tbe aafe custody and rvtoin of weapons cntnuted to him*, perhaps even for thoir rvtam free frnra any chaige of having been unhiwAilly ojied*. Sueh
i
> MU. M (pMhobfy mmmImI la itaw^iaoiii of -on* pvttnlw aw U lh« ktaS*! Boert. or m^annim •nU koowii): cp. Hm. b* ■ 1^ Tte pnMfan •• to boUlag Uw ipHT l*nl if aMOr awdwtoodM rdbiii^ to • t^mt »l mmitnt» kacdi. «M«fe wM oDl ba »«U tmrriU. Un lb* Umg l«lh-ITth «Ml. fihi, vUi Uw potal M M«b ap M to ki vhoUjr ooi «S httm^ wj. tW iitap at lU *pataHatp[k*' »M doHMi ft ipMial art vlMilta IbMHBih
■ B«.mA. W|U. tK] bntH m^tmtmbht IK* jisiiliii, la' W0r mmntUf grthmm MM wttlif mUm; «• 11 Mill, f SUM Ills ■!. U.
• Ca. u. Tl ; ep. fUa. «T 1 1.
* SmImM: Jtlt. Iff.
• .«u:mi: IIm.ST|l. A Aalkf wU - lo ohm ghna to|li»i ■■ k— th* tmm of k» ta II wiw m n : OpA» gtntt^ Aw Utm (t>. IHm iilH. 9mla UM, Ht.tTtw
* Tbe «wi fmari bhj mU pats> to a vsmalj «l iM* kItoL Fiiiikif . tm.
OH. xl] Angh-Scmm Law, . 55
»- oblige might have invdved the fbrfeitare of the wenpoa tnttil qute modem timeB.
Tbe eztoeme dificoltfr of gettii^ any proof of intentitni, or Arohiie of its abeenoeb in azehaio j^eoedttie is, pohape, the heet ez- nmMl* plenetioa of mlee of this kind. At all events, they not only ^SSiJL ■re dieneteristio of earfy German law, bat they have left thdr mark on the developed common law to a notable ejctent. In nodflm times tlw princqfkle of genexal nsponsibility fiir pare •eoidcnlB ariaiAg tnan one's lawftil act has been disdlowed in tiie United States, and m<ve lately in Enghuid. But, as regards tfae doty of sali^y keejrfng in oattie, and in the tiase of penosis eoUestfa^ or dealing with things deoned of a specially dan- gfKOQM kind, the <M Qermanio law is still the law of this land and of the greater part of Korth America.
Kte, whtdi English law has reganled for several oentories as a qwoaalty dai^eToas thing Hl titu sense, and which is dealt with in some of tiie early Qermanio dooms, is not mentioned for tfak pfflTpoee in oor documents^ Liability fi>r damage done by dogs is tm the otiiar hand ratiier eIab(Nrately dealt with by a aeafe of compansation inoreasing after the first bite'.
There are traces irf the idea which nnderlay the B<nnan noul actions, and which crops up in the medieval rale of deodand, that where a man is killed by accident, the immediate cause of death, be it animate or inanimate, is to be handed over to the avenger of blood as a guilty thing. When men were at work together in a forest, and by misadventure one let a tree &11 on another, which killed him, the tree belonged to the dead man's kinsfolk if they took it away within thirty days'. This kind of accident is still quite well known in the forest countries of Kurope, as witness the rude memorial pic- tures, entreating the passer's prayers, that may be seen in any Tyrolese valley. Also a man whose beast wounded another might surrender the beast as an alternative for money com- pensation*. [p. 38] Theft, especially of cattle and horses, appears to have been Theft. by far the commonest and most troublesome of oflfences. There is a solitary and obscure reference to ' stolen flesh ' in the laws of IneV Perhaps this is to meet the case of a thief driving
> Mil. 12 seemB to relate only to wilful trespasa in woods.
" ^If. 28. ' ^If. 13. * Mlf. 24. • In. 17.
50
AngioSitxion Law,
D
cattiv n fwrtain difttonei! nnd ihrn iiUugfaUTing thfrm, itnd hvhag the flwh •put from the hiHeti uid honis. which wtMild bo more eHoly identified. If wc are mrpriiKd b^ the MV«rity with which our auctwtora trealcd th«n., wu have ouly to look at the preTaloncc of hone-flteaUnf; in tho leas ■ettt<<d part* of the weMteru Aiii«ncau siatea and terhturifsa in oar owii tiiue. aud the revivaJ of archaic methods for ito abatement 0.4luiiii>ii with thieves on the part of weminf^ly honest folk nppmxn to have been thought quite ponible : Cnut n«quirvd overr man above twelve yearn to swear that he would be iieithtT a thkf nor on aocumpUcc with ttuoves'.and special jK'naJtiee for lettaag A thief caci^w, or failing to raiiie. or ftiltow, the hue and ay. ptJint in the Mune direction'. Rtuvurr waa a reoogniaed peuUtjr when the thief waa unable to nuke roatitutioo. This, if it stood niono, might 1m' regnrdt'fi nn hnndtiig over the dobCor'a pcraun bjr way uf cumpcnmlion mther than a puniehtDsnt in (he modem sense. But moreover the offender's whole liMiiily might lone thoir freedom iw nrt-omplin'M. The hanhnt'fii of | thia rule won Komewhnt rcUuvd if the thicrs wile ouuld dear hemelf by >Mith fmm having had any part in stolso oattJe whioli hail htHiti fuund in Win hnuM:*. But an lato as the early part of the eleventh oentur^*, WiiIlntAn's homily* oomploinn that ' cradle* ehildrai' are unjuvtly invulvixl in the slavery of their pamta. All this, howuver, belongs to social antiijuities rather than to ' legal history. Th< -> law of theft m wholly poat-Nofman.
Nor ia it netnlful > i uu the Anglo-Saxon UMtiDenl of
special and aggravated fionns of thefts such ss awrilege*. Steal- ing on SnndAy, in Ijent, nnd {in ChrisioMfl^ Boster, tir Asovnsiao Day, was punixhabli- with a duuble fine by the *AA Wmwi UwV
In a m(«d«^m ^ynUta of law we expect a Urge portion the whole Ui be oucioenu!ij with the miss of aojuiring, buldii^^l and tnmsforring property. We look lor dutinctioos betweeaj land and movables, between sole and gift, between the eompleled amcsig living persons and dispoMlkiiw lo take flAeli| by way of iaberitoooe. If the word pnptrtjf be eirtaadad to include ri^ts created by cuntracl. we may say that v«
'Ca.ii.tt > tk «. • ta* T. ST.
■ Id. IU|4ir. BMUs. ISM. p. UK
• Jat«|ft{ikspriailpk U iHflnM]. bat M Tt^^y ai ts > la i— bIIm. la Ca. n. •».
CH. il] Anglo-Saxon Law, 57
vxoAemfUMlbB under tiiis head by &r the greater and weightier part ef tike whole body of l^pal rules a£fectmg citizeDB in their prirate relaticmB. But if we came with such expectations to **Mwwi«> laws and customs so archaic as the Anglo-Saxon, we should be singalariy disajqiointed. Here the law of property ii cnrtcHnary aud unwritt«i, and no d^nite statement of it' is to be fixmd anywhere, while a law of contract can hardly be aaid to exist, and, so fiir as it does exist, iiB an inriignifi- eant i^pntt^uatoe to the law of pnq>erty. l^t we must re- member that even Hale and Blacketone, Icmg after that view bad ccanod to be aj^ropriate, r^parded contract only as a means of aoquiring ownership or poasesaion. Yet more than this; it is hardly correct to say that Anglo-Saxon customs or any Oenaanic customs, deal with ownership at aU. What raodon kwyms call . crwnership or jnoperly, the domtmum of fchd Boonan system, is not recognized in early Qezmanic ideasL Poasosaion, not owner^p, is the leading omoeption; it is pOBBoswon that has to be defended or recovered, and to poe- aesB witiioat dia|nite, or by judidal award after a dispute real or fci^piftd. is the only sure fonndaticHi of title and end of strife. A i^kt to poasese^ distinct from actual possession, must be admitted if tiiere is any role of judicial redress at all ; but it is only through the conception of that specific right that owner- ship finds any place in pure Germanic law. Those who have studied the modem learning of possessory rights and remedies are aware that our common law has never really abandoned this point of view. ^
Movable property, in Anglo-Saxon law, seems for all prac- Sale and tical purposes to be synon3rmous with cattle. Not that there contracts. was no other valuable property; but arms, jewels, and the like, must with rare exceptions have been in the constant personal custody of the owners or their immediate attendants. Our documents leave us in complete ignorance of whatever rules existed. We may assume that actual delivery was the only known mode of transfer between living persons ; that the acceptance of earnest-money and giving of faith and pledges were customary means of binding a bargain ; and that contracts in writing were not in use. There is no evidence of any regular j>.Mj process of enforcing contracts, but no doubt promises of any special importance were commonly made by oath, with the purpose and result of putting them under the sanction of the
(8
Anglc'Saxon Lam.
D
tkim
thtnc*; mmnuitiy.
charch. Then is gnmt roaaoo t*} bf>liovo that vvrtywben or almust ovcrywher? n rfli^ouM snitcti'ft) uf pnuniaM iuit pnondtd the secular une'. iinil tbut huuutirabli* ublij(atuni hiu bent nor* oflbotive than mif^^ht be (nippoacd in aidinf^ ur mppldiiiaiituig tht* imperfpctiotui of IrgiUity'. Apporeutly lh« «lrii««t form of civil obligaligo in Gtimiou law mw the duty uf ^ying «r«rfUd. Payinont, when it conic) not be nuule furthwith, wa« mcurvd fay pledges, who no doubt wer« origiiuilly hmttage*. Omdually (he givinff of Mectiritr nnka into tht> bKckgroand, and the de&iTvil duty uf payuiuui in tnuufbrmed into « promiie lo fajr. But our Anglo-SwEoo Mitborities are of ^e vcnj Mftoti(«t. W« find tbo oompontioa of m fcod aecnrDd by giving plc-dgw ud thL* paymoit hj instalmenU nguUtcd*: aimI iu Alfred^ )mn there in ountion of a Holcmn kind nf promiiw nallod ' gnd>boril *; if a suit w brought upoii it, th<> plaintiff niimt nuikr bin lbr»- oath iu four churchoa, and wh«n that hiu been don*, the d«- faodaat moat clear htmiielf in tmlvo, so thai Uaahood on dlher nd« would involvo manifold perjury and ooat«tnpt of tKa ohuroh Mkd th« lAiDt•^ Uera wi^ neem to have a mixture cf otoqIat and wiel—iartioal aanotiooa. rendered all thu rmmer by ihu bishop cuu5tAntIy being, ai we have •c«ti, the chief judicial officer of the ahire. But thia mnat haw bovti a wy atHeial procedure, and probably ofrnftood to pofaona of Ugh nnk. And it is hard to tell what the ttubji«t-matt4*r of theae nolomn undar- takings can have been, nnlcai it wen nuuriagM of Um prliat' chikimi and what we now HhmiUl caD iimily Mttlenwnla and. purhapn, rvcouciliation of ntanding fondn. Wi* may gnoa*. from what in known of the praciiee of loeal eouim in the twrtfth and thirteenth oeutttnaa, that before the Conqnott the houdrad oouru did to some sxtant do jusciee in maUcrs of bargain aad pponiw in tho ordinary aflUm of life. But we have no direct information whatever.
On the other hand, there mna peniMMitly throagli tbo Aiiglo'Saion laws a aerica of ordinaneea impreaag on bay
> MoiibHd. Plitato Law or Bonw. lit. lO. m (srida of ■Upofalkn).
• Tha Ra^ vncdft enJm, JUUs, tfvndtr*. tamlf* % wlMla liiiliij W *!■ kind. Vtaim. tuAw* L «C*: Cwchiovl. AMls n S>nsw. Mmi. UMi Jlliiiiijil/aiiHii^ la Owava fanaolM m IsM m IMi awL. mm XakAm, Wiiti ■ptsf* var 4mm 9arnm 4m JarifnAiu. LSM, typa.
• lUm. O. 7. taJ A* WtftOd*. BolUBid. App. ««.
• JQt U. Ca. th» wKMdiamB m to 'fcriapw' is ih* law of lleil fHifc tmmx.) op- HaUsa and BlaMw. fliisiinn. 1. Ml. ttX.
CB. n:] Anglo-Saxofi Law. 59
flf oiktde die need ttf buying before good witneaeee. But this baa notiung to do vith the yalidi^ of the sale between the partiea. The m^ pnipoae, judging by the tenns and context flf theae enacboents, is to protect the buyer againat the sub- aeqaent daims of any perscm who mi^t allege that the cattle had been stolen from him. Difficulties of this kind were es- pecially life whoi the sale had been made (in the earlier times) in another Epgliah kin^om, or up the country. Hlothter and Eadric laid down the precautions to be obsOTTed by a Kentish ui&n buying cattle in LoudoD^ then a Mercian town*. Evidently great suspicion attached to sales made anywhere out of open market. Some ordinancca require the presoice of the portreeve or other credible men at a&hs without the gates; others attempt to prohibit selling altogether except in towns. Afterwards witne£ise& are required in town and ooontey alike', aud ill the latest period we Hnd the number of four witnesses specified*. A buyer who neglected to take witness was liable to evictioD, if the cattle were claimed as EAolen, without even the chance of calling the seller to warrant him, and he might also incur a forfeiture to the lord of the plE»ce» and be called on bo cleAr himself by oath of any complicity in the theft. If he hftd duly taken witness, he still had to produce the seller, or, if the seller could not be found, to establish his own good faith by oath.
If the seller appeared, he had in turn to justify his posses- sion, and this process might be carried back to the fourth remove from the ultimate purchaser. These elaborate pro- visions for vouching to warranty (A.-S. tedm)* or the custom on which they were founded, persisted for some time after the Norman Conquest', and are interesting by their sinalogy to the doctrine of warranty in the law of real property, which afler- [p.s7] wards underwent a far more full and technical development, and remained, long after it had been forgotten in practice, at the foundation of many parts of modern conveyancing. The
> HI. A E. 16. The sapposed ' improbability of a Kentish king making a Uw for puohMM made in the Mercian city of London ' (Thorpe's note ad loc. ) it imaginary. The taw applies to a claim made in Kent by a Meraian professing to be the tme owner, and it is to be executed wholly in Kent.
• Edg. IT. 6 ; Cn. ii. 24. ' Leg. Will. i. 45.
• S«e £tbelr. n. 9, Be tedmum, and Sohmid's QloBsary s. tv. Kfiufe, Tedm.
• GUnT. X. 16-17.
CO
AngUhSaxoH Law.
['
iliKiRw of Infi QcmUin k curiotiM urchAic pniviMuin* for h bajrw cUiahn^ hitiiwlf bv mi uatli Uken ov«r the Molea pntpcftjr at tho m-IIlth >^vc\ in the own* ofthr iwll«r Havidj^ *i\M -inr^r* tho ptmriuiNLf of tb(^ hIuvo, ur ulht*r thing in cJittjmte.
With regard to ihu t«niire or Und we fa*T« • «twiiid«mbt* bulk «if infnrmntion, durired |jart]j fnim chuteni and wilh, {BUtly fmni Dcuuional paaaagva in tho Um. atxJ parti}* (rum other docuiD«nt«, v«p(»cially the tract kuown aa RKHbaiimm MHffwlantm ptntmantm. We have gone into the matter elto- where', and we may oonSne ouradvca here %o a short aUtemMi of what ix patiitivtOy known. ^BMk-knd. Ottr Ai^flo-Saxon charien or ieott are OKWtly graaia
eoMidenbte portiona of land made bj kioga to faubopa aad rrligiotu bfiumK, or to lay noblea. Land ao granted waa called UxA-Und, nnH the gnuil confonvd a buger dominion than waa known to the popular ciutoioaiy law. During Uw ninth oenlury nod the narly port of the tenth tho grant ujioally porportw to bu with the conMnt of the witan. Aio^mm (of which w« have no ICtiglifth form) in. in docum<Mtut of the Konaan ■ge, a rr^tlnr I^tin LnuiMlAtion of book'Uml. There aa gnsl reaaun to U'lievv that a grant of book-land uaually made no diffiaranoo at all to the actual uooopatkin of the aoiL It waa a grant of lordahip and rovenuea. and in aome oaaat of jarvaSetion and ita profitu The inhnbitaota rendered their ■citiuqa and rluM to uow lorda, pumbly imuugh to the aane bailiff eo behalf of the now Imd. and thingi wont uu otherwiae aa belbtw. The ri^^bt of alienating book-Uod depoudeil on the tenna of the original grant. They were often largo enough to oonlor powera equivalent to thuee of a modern tenant in fev ample. Aooonl- ingly book-land granted by imoh terma oould bo and waa diMpoaod of by will, though it in impoaRibla to ny that the bual dealt with in extant Angto-Saxou wUU wu alwftvv book-land. Liirdii of book-land might and aometinM-a <lid cmala amaller boUlingM of the mme kind by itiAking gratiu to dtrprndaou. It ia important to mnember that book -land waM a clerkly and esotse inatttotioo. and that granU of ii owe their eiiataoee directly or indirectly to roj'al fitruur. and ihiow tu light, mm inddenully, on the old cuitomary rulea of land-huldtng
I
* ImM.
• raOMh. The UtU Uva. fti4 «L LmL UM^ ilMf^ IL ud
B.CM4
CB. II.3 Anglo-Saxon Law. 61
When the day of ccmqneet was at hand, many of the tillers infBriw d the gsonnd were dependent on a lord to whom they owed ii^ju^ rents and servioee mbstantialiy like those of which we have ample and detailed eridenoe in later docamenta. A large pn^iortion (^ them were personally free men^ ; the homeeteadB wen aereral, and every free man was answerable for his own "* fence*. Ihere is little doubt that, except in the western counties, oommoii-fi^ agxienlture was general if not universal"; and pndiabl^ the scheme of distribation and 'the normal amount of hokHngs was vwy like that whidi we find after the Conquest Tree men scHuetimfls held considerable estates under a lord, but cor aaUuxitiee are too scanty to enable us to say on what tennsl In the later Anglo-Saxon period, land held of a superior, whether much or little, is called lAn^land. It is not dear whether tiiis term extended to customary tenures (those far example whidi would result from a grant of book-land as betwem the new lord and the occupiers) or was limited to interests created by an express agreement In the latter case it may be compared witii the Qallo-Frankish precaritan, from ^rioch indeed it was perhaps derived*.
FoUc-Umi is a term which occurs <nily in a few documents, PUk-Uad. and then without any decisive explanation. In the most authoritative of these, a law of Edward the Elder, it ia con- trasted with book-land as if it included all land that was not book-land. Spelman, so reading the passage, defined folk-land as land held by common, that is customary law, without written title. On this view an Englishman who was asked, ' What do you mean by folk-land ? ' would have answered, ' Land held by folk-right.' In 1830 John Allen put forth another view which prevailed for two generations. He said* that ' folk-land, as the word imports, was the land of the folk or people. It was the property of the community.' The proposed analogy to the Latin ager puhlicus was accepted as confidently as it was proposed, [p-S9] and with singularly little discussion, by Kemble and almost
1 Ine8§3; £lf. 4.1; Beet. S. P. 3. * Ine 40.
* Ine 42 is % good illostrfttion, thongh by itself oot conolnsive.
* Ine 63-67. We asaame that the hide here spoken of is not materisUy different ft^m the normal hide of the Domeflday period, i.e. 120 acres. Perhaps theae passages have to do with the settlement of a newly oonqnered district. Maitland, Domesday Book, 237-8.
* See Pastel do Coulanges, Le bSn^fioe et le patronat, oh. iv-vii. ■ Boyal Prerc^ative, ed. 1849, p. 135.
62
Anglo-Saxon Law,
[bk. t.
every oat who treated at Anglo-SiuaD land UnnrM down to 1H93. Difficaltiet ooeuired. boweter. in woririug out AUcn't thaorj, and were fouml to JncnjAw n* nm* hrhol&r nfUT nnotbcr entered fiuthttr upou detaila. In porliculur, ii wui bard lo oooonnt for the number of free men. which nuin have b«cn {NoDMidprablt' iu the time nf Edward thf KUltr ut all prvnt^ huldiitg \asui which wok not bcM>k-lAn«I. Variotui cunjfctunil names for that kind of hnldtng wrrr- {iniiMwfil by Komblr aud iithers, but fur nuuo of thciii wo^ thrrv nnv authority. If thomi> landi won* included in folk-land, and fatc-tand meant c^tr puhlieus. then erery one who had not book-land waa fai name anil in law a mere tvnatil from tho state. If nut, thurr wa« no evidence that land held by the moat geneiBl and prtolieattj important form of titlo had any proper name at all Kettker oooclusion could be deemK] utinfying. In 1K>3 Mr IVal Vinogradoff ' pointed out that Allen's theory' waa really grar tuitoOB, The documonta do not by any mtuuu rv-fpiiro it ; the analofQT of other ompounds in which the word Jhk oocnn ia againat it; and when it turns out to give rtae to mor« dtfficoltiaa than it removes, it is bett4*r Ut fn\\ back upon the older aitd ampler explanation. Folk-land, then, appears to hare beoi, aa Spelman laid. laiul held without written title nnder omrtonary law. We have no right to aaiiune that there wan mi wietiea of tenure within this general daaoriptioD. or that enitan ww uniform even in the mmi* kingdom. It ia pcobablo that the atienatinn of folk-land woh diiBcult, and we do not know to what extent, if l*t any r«>itMidi-ntbIe extent, power tit dupi«e t4 it by will had birtm introduced. The problem of rDaooBtmetinf { the old folk-right in detail bt'Iougs, however, rather to the history of Uermanic iucial antiquitira than to that of the lawa of EngUnd; and oor int^rpretJitiou uf the scanty evideoea available munt depend in gruil mcanure on the manner fai wbl the fnllar eridenoe of the twu oeotorie* after the Oooqoeal intcrpfwtad*.
After the Norman Oooqacat book4aad preaerred iU oaaw o^ for a time in some eaasa* bat waa flnaUj meiged in the iradal tanarca iu the oooive of the twelfth Dantoiy. The wjatifa of a grantee of book-laod to those who held under him weiw
t FoU-kail. K. B. It. vili. I-IT.
* tl b Mv fnteiintkMr iku saaaMij !•
CH. n.]
Anglo-Saxon Law.
doubtle^B tending for some considerable time before the Con- (juest to be practically very like those of a feudal superior; but Angto-Saxou law had not reached the point of expressing tbt; £kct in any formal way. The Anglo-Saxon and the contineutal modes of conveyance and classification of tenures must have coalesced sooner or later. But the Conquest suddenly bridged a gap which at tho time was still well-marked. After its work is done we find several new Hues of division introduced and some old ones obliterated, while alt those that are recognized are deeper and etrong-er than before. The king's lordship and the bands that gather the king's dues are everywhere ; and where they have come the king's law will soon follow.
CHAPTER HL
NORMAN LAW*.
Or the Uw iif Nommndy mt it was nn tho erv of William'it (r-*n' expedition, litUo ia known fur certain. Tu illtutntr tht> |H'riotl which htul ulfipM.<l niucc thu M>ttl«mcDt of tlit* Nurthnit-n in Netutriit. there nrv no written l»w». no bo»iV» «n Inw muI vrry few chartcra, whilH tho cfaronick'ni h&?c nut niUL-h Ut t«ll nbiMit tike legal Btructuro of the duchy, mid what they toll is not alwftys tnutworthy. Th'? KnftUnd uf ihr (•unv ptrriix) ttiippliM IV with the Uwn of Edward the Elder, ^^StbcbtAo. Cdmiuwi. Edgar, ^1<:thi>trt<l aiul Cnat; also with ft Urge nallertiott of land-buuka and writ*. Even in later dayA. aiUsr the dukv of the Niinnann bad beamie king of the Engliah, the duchy wafl hIow t«i fulluw the kin^^om in the produciioa of abiding muDoriaU of its law. It Iwi nothing to set ag^ai* Dumssdiy
1 Th* toUovimt tvM •lMt4b to bMtd pM«|y mi Ibt flro^hud HihortiiM tm MonMB liiiiar7. futiy on Uw opinkwa ■naiMirt bjr Fkl^mw, OmM, StoMa. n 111! II fan thw nU-knovn Iwoto. Uliphlni^ alUkHW of ifaa lCiv«ni Bsabaqocr KeUi. — Bnmn«r*» aeeooDl of tlH •oanai of HonDaa U* fli«iii m Ub
Aad^HgnMBldMihM Kitifcilnwyrt bU Knbtahoiii d« ftali»aiv«Wdi^ a^
hte Mttoto o^ea ikto iab^ ia HotMD4orir*« KujthifMto Walla. Uikw «■
QimUh rar flMililihli ^r Ikgitatei« im Kor Ink ■ miiiifcift la
Fnakntoh, KedntaktaD «oo 4v Owithriiih te Wti >ift ii. nmto^. INM. pp. W-<6w W— l■ll^^ laMaiiv i MsnnanairriJiii. Oi|i ihnii. UMl ol -hiek Uw antbor |»«i a r»Mli twnahHna la dia IMlMla 4s b BaeUH «m Mtttgalm dt KonwadK «eL a. p. lU. aate lb* iMk tlmim priiwlwiliw poor arrir A l*lu«tau« 4m NormiuMte.— nm Asim. Dk fcaftap 4m Her- animfciikiii Itatok^ HMorii^ Z4lMbrifl, Km* Pol**. m1. iU. p. Ml.— Itittila. ^MriM wr U eoalHtoa 4t hi alMiw ■tfrtoofei «i NorHanJw. ^twi. U». sal Iki MM* wrflM** SMay* oa Nofaaa laaaa la ifaa BiWiali^at 4a l'iBato4M^wiaa,MK.tt.vaLft:Mt.m.«oto. 1. 1.-TW ■JMIiii «f Uw wBi aad Ii latent Id katew^-Laikaba. UalttaUav ■■■i^Ja— 4i la
Er-«S] Book or against those law-books which we know as tho Le<fes
Pof the Confessor, the Conqueror and Hetiiy the First. The oldiest financiul records', the oldest judicial rccorda' that it has tansmittod to m^ an of much later date than the parallel Ka^tish dociimentB, Its oldest law-booka, two small treatises now fused together and published under Uie title £e tria anden Coutmnier', are younger and slighter than our QlanriU, and the Oramd Coutrnmer, if not yoonger, is slighter than our Bracton*. Doabtteas we have be«i more fcMtunate than our ndghbours in the pieecniation of documents ; still we have erery reason to faelieTe that tiie oonquocors of England had little, if any, written law to Iving with them. Hrolf, it is true, had gained the TspataticHi of lawgiver; but our own history will show us that ■odi » R|iaftatioii might he easily gained by one who was negnded as the foondw of a state or the re{««sentatiTe of a nee : Alfi«d was becoming, Edward the Confessor was to be- come die heio of »l^|al myth. J^rolf may have published laws, in partSealar laws sbout theft, but what we h«u- of them will baldly diipose us to think that they would remain in force for long*. Bttfc not coily had the Nwmans no written law of their own irniliTng ; thoe was none tiiat they could readily borrow from th^ French neighbonrB. Their invasions occurred in the very midnight of the legal history of France ; indeed they brought the midnight with them. The stream of capitularies ceases to flow ; no one attempts to legislate ; and when the worst days are over, the whole structure of society has been so much changed, that the old written laws, the Lex Salica, the
1 Hagni Botali Scaooarii Nonnanniae sab Begibns Angliae, pablished by Stapleton, and reprinted in M^moires de la Sooiit^ dee antiqaaires de Nor- mandie, Tol. xt. A fragment of the roll of 11S4 waa pablisbed by Delisle, Caen, I86L
' Tbeee are moet aoeestible in Deliele's Beoneil de jagemeDtB de I'^chiqaier de Normandie aa xiii'~ ndcle, Paris, 1864. A collection of jodgmenta delivered in the aMixes between 1234 and 13S7 will be found in WamkSnig'a FranzOsiache Staata- nod Beohtsgesohichte, vol. ii. Urkandenbach, pp. 48-69.
> Edited bj E. J. Tardif, Ronen, 1881.
* This haa been frequently printed. A recent edition by W. L. De Oruchy, Jeney, 1861, gives both the Latin and the French teit. The Latin text haa of late been admirably edited by E. J. Tardif nnder the title Somma de Legibna Normannie, 1896. He takes the Latin text to be the older and ia inclined to date tt in 1254-8.
■ Dodo, Dueheme, p. 85. The story of HrolTs legislation has been rejected as f^oloos, bot is defended by Steenstrup, Etudes pr^liminaires, pp. 851-391.
P. M. I. 6
66
Normati Law,
[mLi.
ordhumoeii of Murovingun nod Karlunn^uui kiof^, will no r> longer nwet the UfM. When an Engliihoion of lb« twttlfUi c«Qiiii7. tiie oomiitlar of the Ltgn Hgnrici, >lriv«i to eke oal the uld Kuxtwh dootofl with foreign text* uid gom at fikr faork u the Xev SaUca, which wkh centurioA old before Hrolf UiitM in Normandy, we know that he ha« no furvign tezta at hta command that aro 1cm ob«ol«to,
The yot debated qaestion, whrlhcr fi>r a c«ntar}* nr theiv- aboniB afU*T thotr twtUom^nt in NeuNtria. thv Uv of the Northmen or Nonnaiu wtu* tnaiiilv Krunki»Ii ur mninlv .Scandi- navian, wo are not called upon to diKuaa. It ia duw gi*D«irmlly admitted that for at luaat half a O'ntury bt^forv thi; battle at Haatittga. the Normans were Freiichineu, Kn^och in tbair la&guago, Krencb in llwir law, proud indeed of thvir pMt htMUir}', very ready tu fight agaimit other Frvnchmun if Normaa hoDie-nilc waa endangered, but still Pivnchmou, wbo regaided Normandy aa a member uf the Htaia or oongeiitM of at«l«a tliat owed MTvioe. we can hardly my obedience, to the king at Parvt Their i^»ken language was French, their written langoage waa LAtin, but the Latin of Fimnee; the style f>f their legal dixnimenta woe the style of the French nhanuery ; very UfW of the tecbaioal t«rms of their taw were of Scandinavian grigin. Wbeo at length the ' costom ' of Noraaudy appoara in wriiii^p it takes ita place among other French oqatocns, and this altboogh for a loog time paat Nunnaudy has fonnod ooe of the dominiooe of a prinoe. between wh<>m and the king ol tbe Freuch there has bean little luve and frvi|uent w»r ; and tiM pucuUar chxmu^tenstios which mark off the onstom uf Nomiandy fr(»m other French customs seem dne much rather to the Isgialation of Ucnr}* of Anjon than to any Seandinarian tiadi-
To aay that the law of Normandy waa mainly Frrnch M to ssy that it waa feudal But /vtidaliMm is an unfiirtuaate wucd. In the fixvt place it draws oar attention to but unc alemeot M a complex sute of society aad tbai adement is not the nwi4 distinctivi*: it draws oar attention only to the piwvnkaee «f
« no* U rtanUr SilmttM tgr HtwmliWf. rthiitui ftiimiimtim, p. 171 1 'Im SMlBBSi Wa plsa inslisBW ^ b MiibiiiIi *um» tm tH^ iIMk. m 1* dMM o^iUM ■«>• pifcwumil Hi ftiimlt. fMlfall y sN <— t|i i«bKot4. D mnII laMs AtHMiiMnr an MWMi 4aM te • I tUm miilliBBiisI A aaa Mfhlillfls ulilili. 4 Is
I
dependent and derivative land tenure'. This however may well aatisl in an age which ean not be called feudal in any tolerable wnse. What in characteristic of ' the feudal period ' is not the reUlioriship between letter and hirer, or lender and borrower of Uud. but the reiationahip between lord and vasi^al, or mther it in the union of these two relationships. Were we free to invent new terms, we might find feudo-vassalism more serviceable than /eudalism. But the difficulty is not one which could be solved by any roerelj verbal devices. The impossible taak that has been set before the ward feudalism is that of making a single idea represent a very large piece of the world's history, re- present the Fmnce, Italy, Germany, England, of every century hotn the eighth or ninth to the fourteenth or fifteenth. Shall we say that French feudalism reached ita zenith under Louis d'Outre-Mer or under Saint Louis, that Willian) of Nonnandy introduced feudalism into England or saved England from feudalism, that Bractou is the greatest of English feudists or that he never mitses an opportunity of showing a strong anti- feudal bias ? It would be possible to maintain all or any of ihi-ae opinions, so vague is our use of the term in question. What would be the features of an ideally feudal state ? What pt>wvr!*j for example, would the kin;^ have : in particular, what powers over the vassals of his vassals ? Such a question has no answer, for the ideal does not remain the same from century to century, and in one and the same land at one and the same time different men have different ideals: the king has his opinion of what a king should be ; his vassals have another opinion. The history of feudal law is the history of a series of changes which leave unchanged little that is of any real importance.
This, if true of the whole, is true of every element of feudal- Feudalism ism, and true in the first place of that element whence it takes mani^. its name. In England from almost, if not quite, the earliest moment of its appearance, the word feodum seems not merely to imply, bat to denote, a heritable, though a dependent right. But if on the continent we trace back the use of this word, we find it becoming interchangeable with beneficium, and if we go |>.«j back further we find benefcium interchangeable with precartum. A tenancy at will has, we may say, become a tenancy in fee ; but we cannot speak of a tenancy at will and a tenancy in > Waite, D. V. O. «. 1.
5—3
A
68
N<mna% Lam.
[b^u
I
fee in one breath*. The Nomuui cuoquuit of Guglaiu] occurs At a paiticular moment in the hUtonr of this proccw. U hoJi alreadjr gone far; Lhe ^ov\Bfmim.fgudum,f9odtim are fiwl aupplauting bentficium ; Lhu j'eodam ifl hereditary ; men oow •«« little differenoe between the /eodutn and the aiodm or alodium, the fiilleat ovnervhip thAt thc^ra can be. And jei ft trait of prfcauiouanem clingM to th»! fi-e ; tl in tsaaily fbrCeitable, and the lord's right* in the Und appi-ar in th« «hape of relieh and wardahipa. So aU» with vaMalii^rn. Time wa« when ib* iOMiw WM an nnfttie man. though thut time haa loog inwe passed away, and aome vaanla nf tht> king of thu Fmnch ar» apt to bohavi? a« Kivereigu prioeea So again with that maafc
iwiiUil tiDfp"**' "^f fr-t-i*'-""' j"''iiti ill II '■■ |"^"-»* haaj^"
*V IffriV eourL \u gttiwth, whether wo huvi' regard to England or to the OQUtinont, eeem* the obecnreet of all ptvb- lemi. for the law in rapidly ahifUng and rhithging joet at th« time when it ih having the feweat explicit uHimoriah of ita shift* and changes. And it in to pre>eminontly with the poUtioal character of feudalinm. In the feodal tie tba looet bond — liardly other than an alliance between two eoTereigBa— whii:h bimls the dake of the Normans to the king of the FrBDch i Does the dake conrvivc that it is bat a ■mUar tie ihat binds his visoounta and barona to him f Often wxhi^ ouch cjueationa most bo soWcd by the sword; there is nd impartial tribunal for their Aulutiun. It is chararteriskie of th(* time thai rights of sovereignty shade ifS* into rightu of pn>port) : thu same tenua and formolas cover them btith : the line between them is drawn by force rather than by thcorj. Thia had bean so in Normaady. Every mocneut nt which the duke was weak had been marked by robelliooa Dnkr William bad been stem and victorioos and had redneed bis vaaab W ■nbmisaion ; but so suon as he was dead therw was aaocbar en of anarchy and private war. Indeed a ftnt glaaoe al ibe r>4 Nurman chronidca might induce us \u nay that the Normaiia had little law bovond 'thu guod oM nite, the nmpJe plan.' But
• It wni lo W ow f*n«rUI; •tetlM Ihat Um Hiwai pitmftum U om at tiM ■«■■ »r fewUlimn. W«itc. D. T. A. ILOi; Braaav. D. R. O. 1. Ill; rivM 4i QpnlM^r". 1« Ii*iiHm «t U p«4nn»t ma la Mm H^fwl, O. M. It (FMlm> Ite •*<> •n biaaidtifBioaMitaaii *m»t^ mim aj JtmtMinm t tA iw«utU aMUMti ijiimi |*«auU taUUAoJ' YW WtUT iM IW / 1 li ii ■ \m •aj wm; anaawliJ «Ui tmfhfU^uiB !*• Vea^ hmn gyliJi^.
r
i
CK IIl] Nofman Law. 69
I u <rfton a mperficial phenomenon and whenever the AdfiB was sfareog enoo^^ to keep the peace then law revived. We hear the aame <tf England: times of 'nnlaw' alternate with tiiBes of law. At one moment prudent travellers journey in partus <tf tiraniT; at tiie next a girl may go from end to end of the rsalm and fear no harm. All depends upon the ruling man. Th ^\v thou ul tiiL- Narman law of William's day that it was feudal, k to say little ; but it would be difficult fiar us to say more without going beyond the direct and oontempwaiy evrdeace or rcpeiitiiig what has elsewhere been admirably said of the htstury of feudati^^m in general. Bat a few traits may K- noted.
To the grt^at g:eneralizatioQ which governs tiie whole scheme PiwwmImi* of DumeHilay Book, the theray that every acre of land istanv* Immediately or mediately 'held of the sovereign lord, the Nurroaii5 iu their own couu&iy may not have arrived. But Domesday Bouk by itself woidd suffice to show that it was not far from bheii* miuds, aad in the Norman charters we £nrqaeatLy discover the pbeuumfflia of dependent tenure. The ' rich man who wishes to endow a religious house endows it with laud ; but in many cases we see tiiat he is not an absolute owner of the land that he gives, or at all events is not the only person interested in it. The land is held by tenants of divers classes, milites^ vavassoree, hospites, coloni, conditionarii, villani, rusUci, and these tenants (that is to say, bis rights over these tenants) he gives to the church'. But further, if he has subordinates who have rights in the land, he has also superiors with rights in the land ; he makes the gift with the consent of his lord ; that lord's confirmation is confirmed by the duke of the Normans, perhaps it is even confirmed once more by the duke or king of the French'. Of the alodium we often read,
' TbfB tann which oeonrs most often is hotpittt, a term which did not obtain ft pennuMnt home in England, though it appears occasionally in Domeiiday, t.g. D. B. L 359 b. The Conqaeror gives certain viUs to the Abbey of Caen * earn oolonia et oonditionariis sea liberie hominibas ' ; Gall. Christ, zi. Instrnm. p. OG ; Neostria Pia, p. 626. In another charter he confirms ' dominium cam militibos qood dedit Olilia'; Oall. Christ, xi. Instrum. p. 208.
■ In 968 Dake Hichard the Fearless grants Bretteville to Saint Denis with the asKOt of his lofd Hugh Duke of the French, 'com aesenan senioris mei Hogonis Franoonim Prineipis ' ; Boaqnet, iz. 731. In 1006 King Robert confirmed a gift made by Dnke Bichard the Good to Fecamp ; GaR Christ, xi. Instrum. p, 7. Sodi transactions as these were probably exceptional ; bat instances in which Norman lords eonflrm gifts made by their subordinates and in wbioh the dake
70
Norman Law.
fnct
ud oooMODftlly it is oontnuted with th* Amnp^c^vm* th« on* still meaning full onuerahtp, tb** utber depandenc, nnd in kmm dtfiwii praoaricma, tenure'. But the two w« being fined togelher. Sometimea tbe alodium i« held of a lord and tha alodial owner does not diitpoM of it, without his loid's coo* •ent; nay, the lord has righUi over hitn and over it. and thoa* right* can be oonvaTed to a third pcn«on\ C>n tbt* othvr hand, the hm^iomm hnji goni? half-way to meet tho alodium. Tbo riivoiinU and barons of Nnmiandy held b«nrjidft,/mda, hanorm of the duke; iu return th«y owed hitn uiihlary ternoc. though the preoM' amount of the aenricc may not hare been fixed*. We need not suppose that this bad bt>en so from tbi* 6iat, frnm the day when, according to Norman troditiou. Urulf roped
c^mBnni tb<N enoflnBAtluna «r« abnniUnt. Rm fur rasmpb iMwie'a ■««aaal erf llM ittfti to Ssial Kvnmli «>1. )■ Piwnt, «nl. ii. p. JA tl. lUlfb T»t—. whan MHknriiig ua tlbbmf, forUdj may of hii baroo« or othar mtm lo lita <u all »ny nf titU powitiiiniu lo ^07 olbar oharflfa ; (Ml. Chriat. u. Ifuaraan. p, 6a.
> N«uth* ru, 311 : 'Kgo AbbM AlbwtM AbhutM SH. Swphaol Praabo-
iii«ft7ili at Oirirti Ooahooru Uuiinlai Mil mlhl ifaldan alailiM n
auMnu iHradUsla. aoa •■ atbolai (MMiAiio^ qwoi B^ iMio la OmamMm ■oaaafJP-Wl. ln aofi ij/m sIoJm ta imo lliH—rf ' IM. UTtaa ohirtv far P4awv, BUanl II. «7i that b* U pit— J lo «uaArm •« i|iiM fliriilsr waainsat aoalro (?) Mil pnevio *•! b»o«ilcti« i|aa» Dortri Inh* «na« Tal dt hmllUUbiu t«M piUnio lai« po^iJwbial uuuiwimi.' n> ilM worda of Uiia p»— a* amm ourrupl, bat Uw AnvjIrtaM )■ Iwaiai m Uwl U aoi • krrtdiuu and m brouitbi mui aooMaloa vllk pi Marital BauMt ChrtttUrr (cd. UmOI*). Ul : • d«dii B. TrtiUMl ooukM !■<<■■■ 1 naa la alodlo qauo damlnJ «ii BodolA H» Wtnnaa iHMbst bMH WwiWrii na. «M: Um kbboi of Cmb •«aii« sUodMm' sad »ftosM<i • la liMdo.'
> Xvnrtria Ma, 697: WUUw U« Oooqanvr gnaU lo ilia Ab^ of 'lotaa alodiom qood taoasl Q— enJm. Aaol«u«, lUobardw •! lafifia* ta bimtorin Calvl Uootb aaptt Dtvam ; •! wtlua lutnm lUiU qsod In ml f <iv aUodlani iafm lM|pua t^oaib Dlva^' IML Mtt tMBdUU OfibhMin Ahhsii (i* OMom] inaiiliH KonMalaa XV Ifb. MaMa, alledhini isam kotsm ^aad hahahal la BbmI. laH ■aw <■ Hmam ftopbanol tao-at pv late httM^ «aya Mtaa aa aa C«^tt nddthaL* la ihte mm Iba aloAary 4o« larTte* lor U> loal.
• U it tiio% far awwapte. ihal WUlk» af Jiinllgw <Paih imi. Mtt) ^M>to al lbs rabnoB baivMa Daka BIAaitf U. lad hte Isitad toMlOT WUHaa t— • b nbi (Wniibsail fraamo asaWbwato OriMMaa ak IpH pMarii) — aapwUal— ■ltoa>MlrihwalaiatQttia»«>alala.-liila[awiia inOkfli lbs Ooa^tMcat gf fM la iba «lnt«li of LWaa • lOTaa 4* ■willhw ■nHii«...lMlalaM !■■ lyilittM taad Ai4li OlMa'i Kianrti Wa. nttOOLCMAil Iafltn«.pi.aiMk Wiliinl aoa al Atp. ■oUri aC Bukn a flft lo l^at laavav In Umb I«imi *apad A dirii deodala liili^si iiiiiU bo4e nUUaai': Oall. Ckrta. at lailiMi p. Ut.
(^«n
1
m.} Norman Lom, 71
Ottt tiM bold and dirtributed it among his foUowen\ Wbai- •ver JOKg have beoi the tenoB npon wfaidi Hrc^ received Ndtmaady fteot Gbailes the Simple — and the Nraman tale vas tbai faa recMivod it aa the most absolute oMtum*— his suc- tttinw wefe oonoemd as holding a fief of the kings of the Fiteneb is Mtom for homage and serviee; and so, whatever may have baeo the terms on which ffiolf s followeiB acqoiied Ai^ iMds, ftlkdr soooesson were oonceiTed as holding benefices or ftefli of tiie dokss of the Nonnans in letam £» homage and . ■uiriatk Fnm the fint the ri|^ of the Norman nobles seem to havct bem hereditary. It mi^ well be, however, that there WHi aa atoinant of pteearionsness in tiieir tenure, an element wfaiflh apyiam in lator days in tiie sh^ of the dake's right to reliafc Md ««idiftii», and oertamly tiieir hold on the land was ■Qt tmlBflintlj aaenre to prerent him from habitaally having iplan^ fiefr to give away to his kinsfidk '. On the eve
I 1 Dodo, Dfldbem?, 8S ; ■ Illam toram sutn fi.d«lIbiiB tonienlo cttvlilt.' I > Aecordinft to Dndo, DaDhe&ne ^S-44. the gruit WM made * in aBmpHOTnMD per praiiEenii» pnjgeuierurn poa.H^tiLoiieQi.,,qimsi flmdani at AlocUtta in Mmj^- lEmuiQ.. in nlotlio et in rumiu/
' As re^rdfl the 'rc-Uef' the moio proof b to be foand in Doouediijr Book ; «.fl. tm the Urst pa.(re of il we read! that wb«D ft KaHtlih alpiUiiriiif dlee 'MX inde liftbat nlarvtionem tetracL* WiUiftm of JamiAgee, DaehsBoe, 2ff0, Myt th&t Biehftrd the Good gave to his brother William the coanty of Eu and a beaotifal ^A called Leeoelina, the daaghter of one Tharkill, a man of noble birth. The doke seema to be disposing of the band of a vasMl's daughter. So again Orderio <ed. le PrevoBt), ii. 409, speaking of the days of William the Conqaeror, sayi : * OoillelmaB Gnalterii de Falesia filius fait et in militia niminm Tignit, onde Gnillehniu Prinoepa flliam Guidmnndi com toto ei honore MoUnenai oootnlit.' It la not imposaible that the king of the French had twice asserted a right to the wardnhip of an infant dake of the Nomuuu. Ab to the ease of Loois d'Ontre-Mer and Biohard the Fearless, see Falgrave, Hist, Normandy, ii. oha. 8, 4 ; Freeman, Norman Conqneet, ch. iv. g 4 ; Kalckstein, Geechicbte dee franifisiaohen KQoigthams, i, 288-y. Dado's romantic tale may be falae enough, hot the important point is, that not Tery long after the erenta the Normans believed that the king bad asserted and abased a right of wardship. Then as to the minority of the Conqaeror himself: — Henry of Hontingdtm, p. 189, tells as that Harold son of Cnat banished his father's widow, the Norman Emma, and that ahe went to Flanders instead of to Normandy, 'Willelmo nsmqae domino Normaonoram adhnc in aetate paerili enm rege Francomm manente, Normannia fiacas regalis erat.' It is difflcalt to square this story with the known facta ; still there seems to be a great deal in the behaviour of the king towards Normandy and its yonng doke that is best explained as an attempt of a lord to exercise rights over the land of an in&mt vassal. See the account of William's minority in Freeman, Norman Conqnest, voL iL and see Lnchaire, Institutions monarchiques sous les premiers Cap^tiens, i. ll»-4 ; iL 15.
72
?lomtan Law,
[be. I.
laET
of the Mnquftit of EngUikd numy uf th* grnat bouMK ow«d their i^ialDeM to aome more or lea IcfpUmatc reliiUotiBhi|>^ l<igitimacy whm n tiuttUv of dflgrwi — beiweea them And lh« dooal Cunily. Still iho /M(h wero hervditAiy. aod Memiagljr even women might inherit tht-ro. The o/or/ium uxnd tk» bm^ioimn wtTf mooting in thr jnAum. A new ncfavme of pfoprietAiy riKhtit, of dofvmK'Ut imtiirieuu*)- rij^hu. w»« being £uhionod, and int'i that ichemo trvvn* mart of a coaqtMned kii^om might bi^ brought'.
Soow Kich Hrhome uf d<«piMidrnt owncrahip \m ntomauj if Among the enbjccu uf pniprielAry righu are to be roekooed juKtioe and ofioo. It can never be vuffen-d that one who ia not a aovereifni piince Hhould own a jiiriwiiclion in the afaaalnt* ■anw in which h(< uwiib hi» riucknmnd ht'rJH. That in Nonnaadjf the right of doing juslioo and rooeivtng the profiu th«i«of iMd beocMpe heritable ts pUin. The honor§9 of the Xonnan oobloi conpriind right* of juhHliclion ; the viaoounta wem in nanw the ■ncoeewnn of royal officiaU. of Frmnkith wicteotmU» wboae officcK had Wromr hrrvditaiy', Alw* the Undu of the churchc* were defended by ducal gnuita of ' immunity,' granta igJ/i iBodelUd Ob Krankijib preeedenta'. But the prinoiplm which ^^M rt^latod the oxiatenoe and the oocnpetenot eC oaigaoffial omiita *
* About the Ubm of the Coogawt th* wmJ ffudmm Id lb» Nonua ciktftani bat bng^Mmm «bB i^ptan. WDtaa of DoifaMM. SW, Irib bvw WUliav of JMIta* Md dw tmth tt 'bwnadi Ian* wai ttwJ to abab* oC 'a^viaduiM mgnm.* L«feato«. laiit- tutiotm moMmkbidM WHM IM pTMUan Ck|iAtent, 1. a7. wifli Ibal bi Ibe ahMtan of Um rnoob hi^il Wik^Mmm im Mil) Manoa Miidn- tl««b Otfrt ud Bobart XL wfaOo /aOmi hMOOiM uiul UMbr Bfluy L Mkd MaUf L Ha ftUo, b, 17, BtM tb* Tir7 naaMBt of tlw Nonnu «aaqoaM ol KaelMJ m IbM ■1 vbiab Uw fctofi u« fimll; btoal lo Mlmit thai tb> (pmk %tU tmim hmamt bwadhafy. Ihoofh jBBOtiimlljr Ibvy bvl been bvmiituy far ■ !>■( ton* |art. Aa lo kb« inbcrttuM of Sris bj fanalm, lb« («m of Uabil o( Mlimm U • Mftel Utataaao. Womaa w* iobadtint AafU in frmttm fhtm lb> old wt ite iMlk •uUm7 oavahh ; Laabain^ Maaaal im taaHlaiiaaa haa^abM^ MT-
« Ovd. Vit.. VOL U. p. 470: •Bt«o NfMaa OnaM liagw <« Afaaa mam aiw ■iqaa UaUo lUitn aonioi lonawwntal B. BbnUb vtaiaialMVB. M Ml ilariaM. <)BMilasi bababant in Vdlani» TartaHa.*
■ Tba m*\f abarta* \iy «Uab Rl«bar< thm fwrntimm ggtM* BWMi»aii to Syat DMibaaalainaalttU'tnmaaltr't ttoai|Mt,lt*TU. Uaa aaHM dtolMa a« dM Hna ktad an Ibu4 U ibo ^btfttn of Blibai4 iba OooA far Nm^ and hv taial MAail of iba Maaait Kawttk na, tU-T. MT-A Aa««h« ^— r- to atoi4ad k7 *■ atertv ol WIDka wl BtOtma foe LotOai; Xiraavto PU. «SL
IwOliWi Xmivb Pta. ai.
are very dark to us. ^yhfthor-^h-n righti t" ^"^^ fli finitrtr ^"" only be conferred by the sovereign's ffl^ant, or whet^i^T jt ftrj^'^'' frQBQ the mere reTatribn^between lord and meUj or between lord .
Pand tenants, la a gallon to which we pet jn,"i r.Rrt&iT3 atiawer Tor a longTim^aJteTthg^ conquest of Epglapd. whether we ask it of England or of Nonnandy. In good times, however, the duke's justice was powerful throughout his Jiichy. It is as sapneme judge hearing and deciding the causes of all hig sabjects, the guardian of the weak against the mighty, the stem punisher of all violence, that his courtly chroniclers love to paint him', and we may doubt whether in his owu country the Conqueror had ever admitted that feudal amuigements made by hia men oouM set limits to his jurisdiction*.
■ Aa to any constitutional restraints on the duL-al power, the J;""^*" '«
■ ■ • I 1 rm 1 1 1 Hie rtnc-ftl
raoet opposite opinions have prevailed. The diike of the jHiwer.
earlieat period ha* been everything, from the most absolute of monarchic t« a mere first among ei^uals'. What we know is that when the time for the conque&t of England ia approaching, the duke consults, or profeasea to consult the great men of his realm, lay and spiritual, the uptimates, the procerm of Nor- mandy. He holds a court ; we date hardly a^ yet call it a court of hifl tenanta in chief; but it ia an assembly of the great men, and the great men are his vassals. Seemingly it is for them to make the judgments of the court*, and just as the English [p-51] wUan attest or confirm the king's grants, so the Norman proceres attest or confirm the charters of the duke". In the lower courts also, so it would seem, the lord of the court is not the only judge; he is surrounded by doomsmen*.
' See in Dado, Daehesne, 136-140, the paoegyric on Richard the Fearless, also what William the Arohdeaoon of Lisieax, Daoheene, 193, says of the Conqueror.
* An aignment to prore that the fendalization of jostioe had gooe farther in En^and than in Normandy, might be founded on the faot that the Normans in England when they wished to describe the rights of private joriBdiotioo, almost iuTanably employed the English terms take, tokt etc.
* The one extreme is marked by Falgrave, the other by Steenstrup.
* Thas in or about 1077 a suit oame before William's ooort; he orders the Archbishop of Booen, Roger de Beaumont *aad many other barons' to make a jodgmeut 'nt faeeient inde indicium'; Mimoires de la &oci£t6 des antiquaires de Normandie, vol. xr. pp. 196-7.
■ See t.g. iUohard II.'s grant to St Wandrille, his grant to St Michael of the Uoont, the Conqueror's charter for Fecamp; Neustria Pia, 165-6, 377-9,
338-4.
' In 1068 a suit is heard in the oonit of Robert of Bellfime ; he preaidee, bat
74
Xorman Law.
[bk. I.
««ltaw.
Pnibablj the ordinary proewfaim of tbe cuarta was mach *' tb« lune iQ NormAodjr uxl in Enf^luid. la neither eoaatrv IukI men pawrd the stage mX which Uiey look to the tupenMlanl (or [ntxif of donbtful fkcta. The moftos of prckof an aalaaM fannal uetha und cirdenlp deeigned to elicit the Jud)(miiut of Gnd'. <>no ordeal the Normaos reoogniied which ha<l no place in Eiigliah law, namely, the ordeal of battle'. Whtm immediaSoly after the Conqoeet wo And thia mode of proof in KnylMiH, «• may say with wniM certainty tlial horo wc bavo a Nomoa inntitiition. The wiroe may bo said with f^rcat probability of a far luurv impurtoiil institution, uf which wo most qwok at length h«mAer, nuntly the sworn inqoedt. the gwn of Um jnry.
PiThapM criniiiiol law, or what aenred aa auch. had reaebad a later Rtage of development in N<mnandy than in EnglasKL The great need uf tbe time was that tbe ancient ayatan of money compooitions. of Mt and vw and wtiM^ iboald give way b('ri»re a ayatem of true piinishmi>nui, and in Nomiaody tb** altemationa of n>ugli anarchy and iteni rupreaiiiigi may haw baatenw) this dcximbli* prooern. At any rate fttm Nomoody we hear little or nothing of the old nioiwy paymrata^ tboogh at one time they had been fiuniliar enough both ti> the FVmalui and U> the Notaemen* and in Kogbuid tbe writers of tb* twwlAb eentary. who still know all about the w«r of the West Saiim. the Uercian, the Dane, ny no woid of the Norman'* wwr and show no aoquaintanoe with any Norman ur Prankiali criminal tariff*, t^ We may be mure oertnin that in onolhar direction Nonnan
^w.
I
I
tbrw •Uk'U. ninv luunsd kjOMS. aad maaj ittwii an Um fiUatU': Nvuatta Pirn, 111.
) HwomImI ot An ooeun ia Um l^pad irf BaU«: Dado. DdoHmm, WUUwn Fukiotf pmirtd hiauaU of Uw mnnW al lUM M IMUm* hy Um ho« iroa : CM. Vii. («L 1* [t*«(M*» u. 4*1 Th« o«fc«l ta ate Id Um ■utatMofUwOoaBiafllUIhkauMilkU.nl.
> Hrc WillUM*a«bar«Hfcvai WaaMlb. Will la PK Wt tfai WHl tmAj %m haUW WOUun latefcMi wU bm^m fmm, T1»b U tartiBBi til a 'aa—afaa im- iaiM ium.'
* la iha WwiB flfcinaldM lb* t^mm Ifaal *• hbJ «C nMUoM flf vial mtB, aad, rnhm lb* nM U bnaghi to |inlii. te ■M* to JMpriwiaiMt Qt oito and dUlwnMa. Tba laavifnt paaaM paaUbfll kj Mlfliriii. la B^Ub4 Um kiiufalh oT Um 4»la 5anMa • «RUlfl |Mrt of lb> aordM fltt* wbldi thIU oa Um imMdtwA it lU stayM krMght lo jaMlfl* I llMf nnJtv «ii MSito oat a< hrt^Ms ; iW tMl fn ktafl l'N(-BaaMfll,M|l; Mw. OoatUIC
kaaai
Law had ontetripped English law along wh£it must seem to us a destined path of progress. It had come in sight of an ecclesi- astical jurisprudence, of conllicta and compacts between church and state. Within our islaod chm'ch and statt might still appear as bat two phaseg of one organization ; on the contiuent this could not be so. Long ago the claim of a ' supemational ' church to jurisdiction had raised difficuH problems and been tAtiflfied for a while by complicated compromises — but ouly for a while, for the church was not easily satiable'. By the Couquest England was <:|rawn into the rnid-Btream of a contro- Terei&l torrent. Whatever else he might leave for the future, the Coaqueror would have to defioe in precise terms hifi relation to the spiritual power in his new kingdom, and his definition would, if this were poasible, be that which had come flown to him from Norman dukea and Frankiah kings. On the one hand, he would coticede an ample room to ' the canons and episcopal laws;' on the other he would insist that the spiritual power ohoold aasumg no right in England that it had not exercised in Normandy'.
One ecclesiastical institution there was in Nomiandy, which, Tiip tmc» ino William might hope, would hai-dly be necessary in England : ** the truce of God. In England the old family blood-fend was not dead, but it had not as yet developed into the feudal right of private warfare. In France a religious movement, which had its origin in the south, had been setting limits to this {p,ss} anarchical right by putting certain places and persons and seasons under the protection of the church and outside the limits of fair fighting. The truce of God had been received in Normandy; it reigned there after England had been conquered ; but we only find very faint and uncertain traces in England either of it or of that tolerated private warfare which it presupposed*.
I HinMhias, Kirohenreoht, iv. 797 ff ; v. 402 ; Branner, O. B. O., ii. SIl ff.
s Eadmer, Hiat. Not. p. 9, just before he makes hia well-known statement aboDt William's dealings with eocleaiastical matters, has said of him ' osus ergo atqae leges qoos patres sai et ipse in Normannia habere solebant in Anglia servare Tolens,' His edict (Iieg. Will, it.) establishing the ecclesiastical courts soppoees that their proper proTinee is known ; it ia that allowed to them in Nonnandj; it is that which will be made more definite by the Cooncil of UUebonne; see Ord. Tit. (ed. le PreTOst) ii. 816.
* Aa to the treuga Dei in Normand; see Ord. Vit. (ed. le Prerost) ii. 816 and the editor's note ; as to the trace generally see Hioschios, Kirchenreoht, ▼. 806. In the ■0'<saUed Leges Edwardi Confessoris, o. 2, we read that the peaoe of Ood
76
Xorman Law,
[WL. L
aflA»
Of tbn condilioD uf iho greftt maiw of the inhsbiteato of
NunuAody, tht> tillors of the aoil. we know nnguUrlv litUe ; the obroniclm buve hA.ttlly a wurd U) m}* about ibcm, tbo ehiuter* do little fflorc ihaii mi'ntiuii (huir rxi»t«Dc«. This we know. that in tho early yew of Richard the Oood tbvre mw ft fonnidable revolt of the Nornuiu (K-awuita, which wu fivrottjr ffuppreaaed. Aooordinf; co the chrutiicler. th« in«irgentaabow«d a high degne of organinlioD ; they eenl repnwentittinn to a oentnU uaembly'. Thin fiu>ry, ivinark«ble if tnie, ia nearosly \em remorkablti if Udt*e, but the muru relKlliuo will tmke M beUerc thai the Norman pcoMut wait iwMoni a nUvc. It baa been wd by high authority that ihtr*^ are few traoea uf, any icrihge in Normaudy oven in the i'lt!vrnth century, nooa in the twelfth'. Tho chJl^^•rt of the Conijucmr'* day f»- quentty vpcak of ho»piU*, cotont, ruttiei, nitnni, rardy *4 tboDgh now and again we have hintu thaX soma men aiaii Unds are not deemed '&««'■. In biuu* Cimei Nonnandy
indy «|^^
TbU«lal»^|
prtToQa during ncrtein bnlr M««ma, t.g, tnm Booa OD SotonUy ttmdqy. taui Uial if anrimK brvak* Uiut, lb« btebop bos JarMkUoa. or JoriBdictioa prob^U; Iwtnija Pmucb infloMiM. Tb« U«« of JEtMni «. ll-19c VI. lU-Xft. ood uf Cottt I. 1^-17. Ir«t>lil »orli kod Ut^tfaui dBtat awtola Mj ■■■■fiei and vafiMly sdH thM duriiiit Umm ■■■■phi pM« oad •atuocd •booU pnvoll. Evni thii nuijr b*uv ^1^ IoAomms on MntJ—d of the RTMt wirUrixrtifliI movcBAt «bleh ■rtiMIAnl tlM fmgm IM. kot mUI «• hav« DO Ki^Ui «*1Amim of Uw Uomi HnU prior to lUMi norov of M olUe Ifart data, wi ia Uh Btartvorthr L^H Uwlt. An oUtprtiaa af ■ kna* ol Iha pnea of Oud Uksim a comaiaB ram in Uw pi— diogi gl lb* tIArfmtIk OMilurjr, bat cmlv m ma uolnnnabb otnMOMii. Tb* pM«« of Had ««■ IbM •a»Ml««d M laiMibK alvKjv Mid cwtpibMv. (W prtnU* w«Hkni «• aImI) tpmk hinafte.
I TIm oaljr Rood aathorliy i» WUUtm of JoaU^i (Dnihiwi, M*|: mU W «7i ««f7 Uuto: lb* povOM of a lalav ««■ oaaDol Iw tiaaliJ akwM ■attar. Bm D^ld«. £(<>dca Mir la ODiidltb«i 4* U daw ■crhrii^ 111 ( PrvMBU, Ntmnaa Conqonl. I. tfi? (irf. S): fftlnniw. KM. NanBAttdj, ui. 41 1 8lM>iiatrup, feladM prMiKltuuTM, p. 144. Thvaa pna»ato Imi* nip^tiJ la tnrnj ■hai— NT. tnai Ittat of Oallo-Bmnaiw rHloteiag B— la liltiM la Mm* •raaluwADiMa.
> l>ikM■,o^«it 17-19E La>Mi«.IU«wl4»tBilMaiiow^»k.
* Tboi ia a ahaito ol Um Oumawm (WTrialar AMa^at Oamt 'Mm tai tawda iBOmaok oaaai aialwiJIwin at iMvam daoram Craaawma I— aiani'^ HMHlrte Pta, «M. So ki a ^Mf«« of Um dNi^amr fw ft. Ha^pfcw'i Al*^ at C*^ VMMria Pla. CMi 'Tndo iiliar..fiUM iaiM laai •o^utoaMlto MO Ukari* hoaiAattai .Kt h— iai* tnifaa datM vB1h«b vtdtlkol O. «l B. qai baatain Unaai aoa 111 ai ■oWi— oHlarfi
4
*v*<iB Iba
Oall^ av^ ad. 17. Mw ttifm a Iba
OB. m.] Norman Law. 77
disti^tiidied among the proTinces of France by a singular ■hwDoe ci serfiige, and sach evidence as we have tends to show that the GonqiieatHr left a land where there were few slaves for ooe ED whicb there were many, for one in which the slave was still treated as a vendible chattel, and the slave-trade was fiagnuitb
Tlie Normans then had no written law to bring with them JvOm- to Englaiid, and we may safely acquit them of much that could be called jiiriq)nidenc& Not but that there wer6 among them aen distii^iuidied above others for their knowledge of the law. The iuDOOB ibimder of the Abbey of Bec> Herlwin, who had spent meet of his life as layman and knight, was deeply learned in the bur of the land, and when he bad become an abbot he ■tOl gwre i^pimims in temporal causes; but not until he was near fcr^ yean of a^ did he learn the first rudiments of lettem^. Hts legal knowledge was probably the same in kind ae that attributed, as we shall read hereaftOT, to the English biahop .£thdric and the monks of Abingdon, a knowledge of the law to be evoked by omcrete cases, not a body of doctrine to be taught oar written in a book. But the mention of Herlwin Lh^«m most fMnind ns of Herlwin's ptic»r, of lAnfraoc the lawyer of uwyw. Pavia, of Lanfranc the Conqueror's right-hand man. Those who tell us of the great theologian, of the great disciplinarian, never forget to add that he was a lawyer of world-wide fame, the most accomplished of pleaders. Now, as we have already said, the Lombard lawyers, especially the lawyers of Pavia, had been [p. 56] engaged in a task well fitted to be an education for one who was to be William's prime minister. They had been har- monizing, digesting and modernizing the ancient statutes of the Lombard kings, a body of law very similar to our own old English dooms'. Some Roman law they knew, and unless Pavian tradition deceives us, we may still read the ingenious arguments by which the youthful Lanfranc puzzled and abashed his conservative opponents, arguments which derive their force from the supposition that the dooms of King Liutprand and the institutes of Justinian are or ought to be harmonious^
* ViU Herluini, Lanfranci Opera, ed. Giles, i. 270: 'Abbas perituB erat in dirimendis csaaamm BaecnlariDm controTer8iiB...Leguii) patriae BcieatiBsimaB praesidiam Bois erat coDtra iniqaos exactores.' Ibid. 265: 'Prima litteraruni elenwDta didicit cnm iam existeret annoram prope qoadraginta.'
* See aboTe, p. 22.
* Lanfrano'a jorisUc exploits are obronioled in the Liber PapiensiB, M. O.
78
NormoH Law*
\>
I
(Anfimoc, yet a laymAD, left luly for NomuDdy and opened a Hchijol. a seouUr kHuoI. at Avnncboa. What ht- tAU(;ht ibaiv tiv ani not told; but ho may havo taught law oji wvll m gr&innuir and rhetoric He waa remembered in Normanify aa one uf the duoDven'ni of Roman law*. If he tangbt Inw at Avnuiche* or at Bcc*, then we may my that the NurmauK wufv being edaoated for their great expluit: when the time for Hubduing England iihould cume. thi* man at anna would hava the lawyer behind hiui. But, b« thin aa it may. the nry oxiatcneo uf I^uifrvnc, who knew Lombard law and Koman law and Canon law — when be won Archbishop the decrwta and ca.nt}ttM were ever in hia mouth' — who nuiatered Eogliab law so thoroughly that hu carried all before htm cvan when the talk [ft.«i WW of take and sokt*, most oomplicste the problem of any ooa who would trace to ita aourcea the EngUab law of the iwcUlh cvulury. Who ahall aay that then is not in it an luban ulement ? The Norman Cooqaeat take*! place just at a moment when in the gi'ueml history of law in Enro|w new ibros arc conuug into play. Roman Uw is being ttudied, for men are maatering the Inatitutea at Pavia and will aoon be eipouuding the Digest at bologna ; Conuii Uw ia b<Ting evolved, and both claim a ccamc^lilan dominion.
U«M, fv. pp. uvl.. 40t. 404. Me. Bm dM FMur, VonahiiBCM tv n i tniil luSm, Ut «7, 4M. U ifl Dol kbMloMtjr owtebi UmI lU* Xaabaaa k am Unfnuie, bnl Om part 1m» i-'ri'l ta Uk. Ifaal •< —al^liat Ui ^tea. ^^tm «cU wiUi what u Mid t7 Hilo Criif4B. Opwa laaftand. mL Ollim m : 'A^ iMBtai onaor *«c«fmaai mkHamn%m la BOitooft— wMura ft>^K«Kr nvML lanaaW fannmlji* aoconii diModOk '
• Bobwtm lU Mflata, aaa. lOM. ad. BovMI. ^ Mi *U^»mmm T%%\miii n Uannnw HMte rfo* rqaatk iped Baanaiiai It^ftai Biaaaii, qaw tuUalwin imftaMot lloaMaonua ..laivadatvnt, kte tafaiB nfMtt^ ofai^ dadmnt tmm taiv* tl alH* npnow*.' Hftvlc^r, QmA. tm liM. BiAK vfk tsvil. I a. poiali out U»l Um rtorjr outttnt ha tra*; taahaa* omM hna Ml Ilktjr Man Uw d»y« ol IrMru*.
• Hm flavitB5. op. dL, <a^ vt. I Ufc Bob« «( Tonpi; tBokmw «i Haoto). uia. HIT. ad. BovUtt, p. 100, telb b«« Ivv of OMrtmii, tte f labt. bad «heu ft ^Doth lM»nl Lkufnae ta the aekeal a l« •! dlvlak Uitacia tonnoiw.'
> BMtaafraae'alMm.MpatfaOrXo.a^aA.Oaa^iairtfafcWti Biikap Hvtot to mad Iris v^a asd nad thawanait ■alofla laa>ini. lodlifni ■wwhriboi foltai pK lalaM dhrloM bu«n« l«a«^ tlMr>fU»(|Bt fmmkfu* rtadini impwMfe.'
• 8m Mm, p. n.
IFE* 'T-'"^" -
CHAPTER ly.
aHOLAND 1T2n>ER THE NOBMAN KIN08.
f^o] The Norman Coaquest ^
ihe whule future history of r. i but
the vague^st guesses as to 1 ■ und ~~*
prevailed in the £agland ol ^ » i rr of the
nineteenth had Harold re] in a i fiw
example ask, but we nhall hi f t ^t > w
the histoi^ Qf law ia Euglaoi Id e - 1
ihe history of law in Germai f, a tii t
come when Eoglish law ^ot Id e 1 id le n '
for Roman jurisprudence. But it is slowly that the con- sequences of the great event unfold themselves, and they are not to be deduced from the bare fact that Frenchmen subjugated England. Indeed if we read our history year by year onwards from 1066, it will for a long time seem doubtful whether in the sphere of law the Conquest is going to produce any large changes. The Normans in England are not numerous. King William shows no desire to impose upon his new subjects any foreign code. There is no Norman code. Norman law does not exist in a portable, transplantable shape. English law will have this advantage in the struggle : — a good deal of it is in writing.
But then, the problem to which the historian must address No mere himself should not be stated as though it were a simple ^'^^ ethnical question between what is English and what is French, tionaiuwg.
[p.M] The picture of two rivulets of law meeting to form one river would deceive us, even could we measure the volume and analyze the waters of each of these fancied streams. The law which prevails in the England of the twelfth century — this
80
Ejtfftand under the Norman Kinffg, [bk. i.
one thing we may ny with m>va» orrtAinlv^-dLii not U* nalM a mixture of tbu U« which preruled in Eogtand on thr day when the ConfeOTor wm alive luid dead, with the law which prevoilef] in N'^rmandy on th« flay whHi William set wil frum Saint Valery. Nur c-jui wt* liki*4i it Lo a chunii»l rompfiind which itf the* imuU or u oiiiibinutiuu of two ulcmeuu. OthiT elemcntit, which aru not racial, have gono to ita makiajf. Hnnlly have Norraanit ami Englishmen boon broaght inti> contact, Iwfon* Noniion baron« rebel agaimt their Nonnoa lord, and Iht' diwrguncv betwcvn the intervale of the king and the intcn-stH of thu oobloa become* oa potrnl a chum.* of legal pbonomcua as any old Ettglish or old Fmnkiith troditiooa oan be. Nor dare we neglect, if we are tu be tnie Ut our fiuiti, tli« potaoual cKiLracU-nt of tho great men who accumpli»hcd the sub- jeetiou of England, the chamotcrs of William awl Lanbmoe. He effbcta, even the logal eflecta, of a Norman ooequeat of England would aworodly have been very different fium what tbey were, bad the invading hoet been led by a Bobert Cwthaae And in order to notioe juat one more of the bnodred Ibnca which pluy upon our legal history, we have but to »oppaae that ihi* Cunquvntr, instead of leaving three booa, hml left one otily, and to aak whutbcr in that caae a charter of liU^rtiea woukl evvr have been granted in England. We have not to apMik betv of all tbeee caoaea : they do not come within thu hiaUiry of law; onl}' we must protest ogoiust the loo cunimou a.viunipti<*fi that thti Eugliiih law of later tiroes ronst in some sort br just a mixture, or a oompound* of two old national Uwi.
If fiir a maroi>nl we turn from thv sofaetaDoe to tlt*^ Unguagt* of the law. wc may voe how slowly what we ar« apt %o tliink the most natural oonaeipicnoea of thit Conqocst manilest themwIvHA. Oni' indelible mark it has stamped br ever <m the wholu body of our law. It would be hanlly loo moeb to aay that at thiD praaent day almoet all oor words that have a deSnitv legal lm|Jort are in a eertoin seoae Freocb worda. The Utrman jurist is able to expound the doctxinea of Reoun law in gL'nuincly Gi>rnian wunlt. On many a theme on Boglisk moil of letteia may. by way of exploit, write a paragraph or a pafB and nae no wmi that is not in evecy aeose a gMnRwdy BnglHr word; but an English or Aroetioan lawyer who aU Irmpt^d this poritonical fut would find himself dooned la silencv. It is true, and it is worthy of remark. Uwt within tho
ft-tHV*] Enfjland under the. NofTtutn Kings. HI
sp^bere of public law we have some dM terms which have tioinc down to US from uncouquered England. Earl was not diaplaccjd by count, sheriff was not displaced bj viscount ; our king, our qo^n, our lords, our knightft of the shire are English ; our aldermen are English if our tnayors are French ; but our parliament and its statutes, our privy council and ita ordinances, Wkt peers, our barons, the commons of the realm, the sovereign, jm the state, the nation, the people are French ; our citizens are French and our burgesses more French than English. So too a few of the common transactions of daily life oan be de- fteribed by English verba. A man may give, Bell, buy, lot, hire, borrow, beqaeath, make a deed, a will, a band, and even be gtiilty of manslaughter or oi' theft, and all this in English. But ihtH is a email matter. We will aay nothing of the terms in which our land law is expres&ed, estate, tenement, manor, mort- gage, lease and the like, for though we have English freeholds and half-Engliii^h copyholds, thiii is a region in which we Hhould naturally iook for many foreign terms. But let us look else- where and observe how widely and deeply the French influence has worked. Contract, agreement, covenant, obligation, debt, oondition, bill, note, master, servant, partner, gnarantee, tort, tfieqwH, ftseault. battery, slander, damage, crime, treason, felony, mifidemeanour, arson, robbery, burglary, larceny, property, pos- session, pledge, lien, payment, money, grant, purchase, devise, descent, heir, easement, marriage, guardian, in&nt, ward, all are French. We enter a court of justice: court, justices, judges, jurors, counsel, attorneys, clerks, parties, plaintiff, defendant, action, soit, claim, demand, indictment, count, declaration, pleadings, evidence, verdict, conviction, judgment, sentence, appeal, reprieve, pardon, execution, every one and every thing, save the witnesses, writs and oaths, have French names. In the province of justice and police with its fines, its gaols and its prisons, its constables, its arrests, we must, now that outlawry is a thing of the past, go as far as the gallows if we would find an English institution. Right and wrong we have kept, and, though we have received toH, we have rejected droit : but even law [pco] probably owes its salvation to its remote cousin the French lei\
> The conoezion between our law and the French lei or lot (Ijat. legem) is for the etymologiat % remote one, and Heniy I. knew what he was aboat when he rwtored to tu the lagam (not legem) Eadwardi. Bat the two words attracted each other. We pro—rre the French droit in oar 'droits of admiralty.*
P. M. I. 6
62
England undrr the Normati Kings. [lUL u^
But all thiii M the outcome of a gradual proceas; we can not say ihai it '\b tb« Beoeaury result uf the oonquest of Kngiand ' b}' French -itpeaking mem. Indcwi fur some time after ihc conqu«wt the KiigliMh language aeonw to have a fikir ehanee holding ita own in legnl afToini. In the iirat plncc, tho combat between English and French, if it muAt begin iiw^ucr or Uu*r, can fur a while be portpoiMd or concealed, for there ia a third and a powcrfiil rival in ihp field lAtin beoomea the writlcn language of the law. It waa a laugnage ondentood and written by thu ImruiKl men of both raooa : it waa the langnago of Huch legal documcsits aa the Normans knew. and. tlkough it was not the fanguagu of the £ngliah dooms or the Knglinh ooorta, still it was the laqgoage of the English chartem ur Und-booka. In the eoooiul place, English had long baan • written longnage, and a written Inngimgi' which oould be oaed for legnl and goreraraenLal porpoet^fl, while French waa as yet hardly better than a vulgar dialect c^ Latin : — French wrnild become Ditin if you tried to write it at itn beet, And m the two languages which William used for his Uwb, hi> ohait«rs aud hia writs were Latin and English'. Again, theie wo* good reasons why the technical terms of the old English law sfaookl be preserved if the king could pivaenre them. They wtn the terms that defined hia royal righta. On the whole be was well wtisfii<d with the goodly heritage which had eome to him from his counin King Edwanl. If only be ounld inaantaia against his folluwen the rights of the old Eiigtisb kiagilup, be Wuuld hare done almost as much as he oould hope to ila And •40 hifl rightA and their rights must be trgistervd in the old Kugliah terms. His clurks must still write, if not of sani amd aocfu; still of moa tt soon. Uany foreign worda have asaik thtir way into Domeslay Book, bot many old English wocdi which had definite legal roeaninga werr pmerred'.
During the century that foljowji. l^tio keeps its pt»> [^«a emineDoe, and when, ondv Heniy II. and his scas, the time eomes for the* regular eorolmeat of all tbe knga acta and uf all the judgmeota of his ooari« Luio beconiw tiM laagoanv of ottr
I
■ Tb« Trwotb mk of t^§m WOMmt wfU ba Mllaeii bslww ; u w pnvMi work. — - -" ■ I J- -■— ' -- *-,-i-»- —'■ ■- y-j-ij ■, n,
woaM-hi tninir* HiMory '" j'l iT I'Mttt rf r^ai I IHHH 'si W thai tarmt'* «laaatort >liAiiili > MahkwJ. niiBiii lay Booh, fc
CH. IV.] England under the Norman Kings,
8S
volutuinoits official and judicial records. From this poaition it is not dislodged until the year 1731, when it pivf-s plar-R to ES^gliiih'. It were iieedU«s t<j say that long before that date buih French ami [English had been used for some very solemn, perhaps the solcmncst legal purposCi>; but seemingly we may lay tloMm some such rule tm this, namely, that if a series of records goes back as far as the twelfth or the firsL half of the thirteeDth centuiy, it will until the reign of George U. be a series of Latin records. It is only in the newer classes of anthohtative documents that either English or French has an opportunity of asserting its claims. French becomes the bagoagc of the privy seal, while Latiu remains the language of the great seal. French expels Latin and English expels French fjrum the parliament rolls and the statute rolls, but these rolls are Dew in Edward I.'s day'. In pftiffi^iilftr, Tjatjp, fy- tnains the language in which judicial proct-edint;'^ are formally reeorded, even thou^^h they be the procecding-s of petty courla. la Charles L's day the fact that the Star Chamber has no proper Latin roll can l>e use<l as a proof that it is an upstart'.
But, though thnnighout the middle ages snmu Latin could Su-oegla bo written by most men who could write at all, and the lord of p'JIIJ^nd tk manor would still have his accounts as well as his court rolls •"-"Jji'si"- mode np in Latin, still only the learned could speak Latin rvndtly, and it could not bea^me the language of oral pleading or of debate. Here was a field in which Freuch and English might dtrive for the mastery. There could for a long while bo no doubt its to which of these two tongues would be spokeu in and about the king's court. The king spoke French, his barons PrvDob. his prelates French, and even when barons and prelates wen beginning to think of themselves as Englishmen, some new «»ra of foreign inHnence would break over the court ; the new Kr- '■' ■■'•n brings with her a new »warm of Frenchmen. And ' ti ^ <:ourt' was not theu a term with several meanings ;
> Stouiie I Qto. U. 0. 21,
« Our fint parliMiwat roll comM from 1390 Rod thara ia nome French on Uic na of 1993; ilot. Pftrl. i. 101. Tb« viuy first entry on oar Btatiit« roll um it Dim vxiclP* tbe 8t«liile of tiloiic««ter 1378. is in French, and if. u mmhu pnhaU*, % meinbrmiie[oont*inm9 the Statute of WMtmiostcr ISTo hu bMD lart, Uita ftlao wu ooTeroJ wiili FrMioli writing.
■ KlAl. 16 Oar. L c 10, ftboliftliing the Star Chamhcr, Bolcmnly recites the Sutnl* 98 Bd«. 111. Stat i. e. 15, wliioh aay* tliat (dwipita the um of Bofjliab M ft Bsdiam for oral pleadin^t) all pleas are to b« enrolled Id Latin.
6-2
the language uf oourliert and oourtlinen wm of oeo— ily ihm language of buaiaeMi, diacuaaion, plvwiing. All thin might vpII hare happened, howerer, ami vtt tho Kiigliah languag*, which M-oti ill iho fulunt to be thv Ijtuguagc cvt>n of eomiien. might have retainctl ita utock of old and il* powirr of «ng«ndor- ing o«w |«gal tonna. A FivDch-Hpoaking royal tribunal might bsTC bven merely niperinipoeed upon an English HuUtructurv. But hvm what in pTlinpit the main theme of uur legal hutoiy (Ii-ckIi* the faU) »>(■ wonln. ^lowly but ttun-ly jmiticp dynt m lijckingB nmnc by men who are t-he kinjtf* genranla
the moet important kind of juwtice, reachei into ri ^tiere of thi iitod. ywi^ Uw MUllf iBmf «' """Jlfolk aa wdl M the great affiriw of earia and Wom. Thia ia no immcNliale and no uecetaaiy effect of the Nomiaa Ctmqveet It wo«U ncvrr havo como abont if tho noblcH who holptxi William to conquer England could have had their way ; William hinualf can hardly have dared to hope for it. Thv dottiny or our legU lai^uago was not irrevocably det^^rminod until Henry of Anjou wan king. Vten of If wo must obooee one moaent of time ■• btal. «• oaghi lo chooee U66 mtber than lOtiti, the year of the aanae at noral diMeivin rather than the- year of the battle of Heitiiligl. Then it waa that the dt-creu went forth which gave In erety auui dw- liainwiid of hw hwBOM a u'umly Ut tJP ■tfUtfi m a niyal court, a French -wpeaking eouru ipeneelbrwaid the ultimate triumph of French laW Uf^fwaa eeeora. In all legal mattrr« the FrMch element, the royal aleswmt, was the mad<!m, th» enlightened, the improving element. The Kn^iah aloek of worda ia stricken with banroneM. the French elodc can grow. The thinga of the law which havi! Kngliiib MUDea are thinp that ar« ofaeolete or otaoUmcent, mk$ and aali*, hw- and wi$9i~^ already men hardly know what iheee wofda nean*. lLi»4i^ "^t f* "^ tit **"*'"vc that iri thr '^^^LjiiutU. tho anilore, who _
p'-"''H Ihnir r""w_t£*""^ ftgoch^>UII frucn the thirtwmth century we get booica of ptvoadenta for pleaduiga in maouriaj oauru whieh are written in Fnioob. wbilo we look in vain Cor
I'MafatevM, fWM* lM« ifftwirmm. Am le «< Uw Bs(twii«M. *«L Ui. iatfoAaMieo.
CH. rv.] England under the N^omnan Kings.
85
any similiur bixtks wrilten li) EngUi^h^ We may suspect that if the Tillages themselves did uot use French when they assailed ^ach other in the village courts, ihnir pleaders uaed it for them, and before the end of the fcliirteeuth century the pro- f&«ionul pleader might already be found practijsing before & petty tribuual Had speaking the langujige of VVestminster Hall*. Then in j-^fi2 a statute, itsf>Jf wriH.fui in Fipprh, d^^'^^^^'^-^-t-it"^ as the French tongue was but little Mi^'loir^t"^! all j^]pQa jhould be 'pleaded, shown, defended, answered, dehfl*-^^ a^H judjyed ' in the English tongue". But thia came too late. It D(»uld not break ine Westmmater lawyers of their settled habit T>f thinking tvbaut law and writing about law in French, and when slowly French gave way before English even as the language of Iftw reports and legal text-books, the English to which it yielded was an English in which every cardinal word wae of French origin. How far this process hnd gone at the t-nd of the thirteenth century we may learn from Robert of Gloucester's hia1:4>rical pj^m. He sets himself to translate into English verse the Constitutions of Clarendon, and in so doing' he uses the terms which we now write as cufit&m, grunt, kvj fee, service, phadmg, assise, judgment, traitor^ cftatteh. felon, patr'trt. advmuamt, couH, plea, purchase, amendmeitt. hold in- chief, bailiff, homage, confirm, appeal, debt*. Down to the end of the middle ages a few old English terms perdured which, at least as technical terms, we have since lost : English ' domes- men ' might still ' deem dooms in a moot hall' ; but the number of snch terms was small and the blight of archaism was on tbem*.
Meanwhile men had begun to write French and to write French it for legal purposes. Legal instruments in French come to [p.M] us but very rarely, if at all, from the twelfth century*; they
' 86 Edw. lU. Stat. i. o. 15.
) The Court Bftron (Seld. Society).
■ The Coart Baton, pp. 88, 43. * Robert of Glouceiter, lines 9650-9780.
■ WTcliffit* Trsntlmtion of the Bible ; Matth. vii. 1 ' for in what dome je doneo, je tcolen ben demed'; Matth. xzvii. 19 'and while he [Pilat] sat for domeaman'; Mark xt, 16 'the porohe of the mote hatle.'
' The ▼olome of Sanim Charters (Bolls Series), p. 6, oontains what at first looks like an early example, a French doonment execated by a bishop of Saliaboiy and apparently ascribed by a oopyist of the fourteenth centary to the year 1190. But there is some mistake here. A French charter of Stephen I^uogton entered on the Charter Boll of 10 John is given in facsimile by Hardy, Bot. Cart. p. xli.
86
England under the Norman Kin^ [bx. i.
berome commoner in the* thirtceuth and yet commancr in th» fourUH-uth, bul on th« whole lAtin holds iu own in this region until it fitowly yielda to Eiigli»h, and iho initrumcntit th«t are written in French neldom Ih'Iodj^ to whnt we may call the moat formal claswa : thtsy are wills rather than dooda. agrvemento rather than charters of feoffment, writs under the privy aeal. not writA under the great aeal.
From the royal chancery LAtiu \» not io be driven. The \im. example aet by the Coni{Uf!rur when he isaued laws in Kngliih
as well as iu Latin woh not followed ; Latin is the language for laws and ordinanoea until the middle of the thirt4vnth cootviy. Thi'u fur onr brii'F niDnii-nt the two vulti;ar ton^ca appear in an e({imlity; in 12o8 Henry III. dfclartti b<ith lu French and ia Giif{liMh hijt acceptance! of thf proviHimtH which ware Coroed npon him in the |iariiament at Oxfonl*. But while this Kngli»h prodamatiou long remains uni(|ue, French forces it* way to tht) front It wresilM wHh Uitin for the powwdop of the nutate roll and the ptu-liamrnt rnlU. By the end of Edwnnl Il.'a reign it ha» fiurly won the atatntca roll*, and is fast gaining a nuMCay over the porliamcDt rolLh For about two centvrica^ frooi the reign of Edwaid L to the reign of Richard IIL. it ia th« nsiial lanf^ftgp of the enacted law, Uite in the fourtefnth rrn- tur}- EugliHh begina to make an insidious attack. IVtiLiiJOs ta pnrlijuucut are aumetimca preaeatod in English, and the Ktigtiah petition is sometiraeN put upon the roll without being tmna- latod. HowevOT^iha middle agea are Just at an end befegw tka
— «».j»„Mj!thi> pi^lilfi iMbUUie Iff ww^^ inf'"V '" Knglr^ and-to IliN dsy. ae all lirMi»» xbat. ■ ^1l^yt:^ *""** "f"' i li^ moat aolemn of all oar formolaa ia Frencfa — £a fwiae U M«i^
I
< Tbs pradsBullaaa vUl ht fcmul la dM SsImi
■ Tb« owptkiafl u« rsllMr ayjamt Ihaa nal ; c#. Ihs Dnltaaaaa Inknd or SI Edv. lU^ ftiii|h oo tha cIMote fsO. b la tfea psimi. *ntl t* ftW on tb* pUnt roU.
•TlM traMMoa fr«v twmiA le Ka«Usli iHW mmm to ftt tht iriiMiliie oTBldMrd m. and to bi Ibt aMihad cl lanlaMat Wa fMS si Ihte 4ato boa tlM fiMM iH ■! tht Tg— to 'Ml iilaiiiil I ol JUto <f fsrito— t' kmwni^mXwm^ Mwl n wig bi TJig-lor brt iwr aUlM wtoat | ililli ■■ — fiisli J ar U\U » pvUnoB to piflliBiMii ml^iA U I iUlM la Ki^ttik (tu*. hrl, OL HI). aaA IfasB^tflihvwdawhlilitlsaiyrV. •fakawlMahaaMt lUa AM faitliwwi aw MialM (iU. 4at): Utn ylJHiaw to Badkh a^^sr oa ite nil i kai aa lb* abate Is U not bdUI 14S6 at ikmmhmam Ihal Ik* ^aMammk na ha* Maih X^lkh Ml IL To tbt W7 hrt (1«0I) Ow kxmtX pww of lh» r«U ■>« vMtoa dtbw to risoah or ia Laiia.
en. IV.3 Englaiid under the Not'Tnan Kings. 87
^•»1 Again, in the thirteenth century French slowly supplanted f'^^L Latin as the literary language of the law. It is ver}' possible that the learned Bnicton thought about law in Latin ; he wrote ixi Latin, and the mntti?r that lie wa^ using, whether he took it from the Summa Azonis or from the plea rolls of the king'ii ramrt, wjis written in T^tin. But the need for French Icxt-books was already felt, and before the end of the century tiuB need was being met by the book that we call Britton, by ^H other tracts*, and by those reporti^ of decided cases which we ^™ know as the Year Books. Thenceforward French reigna supreme over such legal literature as there ia ^Vfl «""«*■ w»it for the last half of the fifWenth century if wc would see English law written about in the English tongue, for the ajjEteenth if we wmilH ^lMft^^ {^ ffrhniff^] Ifliy-book that waa written in Knglabg. '
This digretwion, which has Uken us far away from the days of ijie Norman Contjuest, may be pardoned. Among the most momentous and permanent effects of that great event xisi effect on the language of English lawyers, for language Ho mere instrument which we can control at will ; it controls u& It is not a small thing that a law-book produced in the England of the thirteenth century will look very tike some statement of a French conturne and utterly unlike the SacHseti- apitgtl, nor is it a small thing that in much later ^'*i)'>* ^""^^ foreign influences as will touch f"- FfTigl'^^' It^w will nlfftiji W iniieh rather French ^h'^^ p^w^^«»^ But we have intnxlnced in this place what must have been said either here or elsewhere about our legal lauguage, because wc may learn from it that a concurrence of many causes was requisite to produce some uf those effects which are usually ascribed to the simple fact that the Normans conquered England*.
■ Coori Baron (S«Id. Boeietr), p. 11. B«« also the Bntia Plaeitatt which ■n Mnr bthig bdlt«d b; Mr Turner.
' Th* hoaou- of btiiM) Ui6 Ontt booka conoerniag EogliBh law Uiat wete wHMSB in Ih* Eji^ih laDiuage mast probabljr be gireo to lotae of Bir John fattrnttm't Iwsiwei. b»t ihpy onnnot bo called legal text-books. Before a Mlbvsia judgment coo Im> paMwd oo the iiOMtiou as to whicli U our flr«l Bni^Mh laxt-book, an ialncnUt uxonp of Utllv traoU un plaadiiiK ete-, •ome of •kiab may not jet have been pttnted, must be examined.
* The Fnoifib that ii a Utenu? language in Eogtaod undor Hcary [II. and Bdvarl I. ahonld not b« called 'Nornuui-Fnmcb* : Paraian Franvli, the Vtaidi of Iba Inlfl of France, ii alraady ita model ; but tbero b aome diffettmee
68
England under £A« Norma$^JRmg». [bk. i.
We may nfely ay thst Williarn did do! intend to aveep away Buglinh law auil Ui put Nunuan law in ita atuad. On the contrary, ho decreed that all mtn were to have and bold tbo law uf Kiug Edwanl — thai ia to ay. the uld EogUah law — bat with certain additions which he, Willi&in. had made Co UK 80 far M we know, he exprealy legislated about very few mait«ti. Ha fiirbad the bishops and archdeacons to hold tu the hundred cuurtd pleas loucbiug eoeleaiastieal discipline ; such pioaa wttm Car tbo future to be jodgod acc<inling to the canons and nd •ooording to the law of the hundred; the lay power waa to aid the juHtioe of tbe church; but without his leave, no oanooN were to be eiuieted and onue uf his baruus ur roini>tcn exeon- municated*. Ho declared that his peace compreheuded all meo both Englifth and Normans*. Hti required from eveiy free maa an oath uf foalty*. He eatablishad a special protootioo for the Utos of the Frenchmen ; if the slayer of a Frenchman waa not produced, a heavy fine fell on the hundred in which be waa slain. U* dookred thai this •pedal protection did not extend k» thoae Fn*nchmcn who had settled in England daring Um Coofcaaor's reign*. Hu deBnotl the proc>Miural rulea which wera to prevail if a Frenohmao aocoaed an Kngliahman. ur an Enjiltsh- muk a Fmchman'. He decnwi that tho ooanty and bandrad omrta should maet as of old. He decreed tJut every free mb ahimld have pledge* bottZkd to produce him in cunrt'. He Ibrbwl that cattle should be sold except in the towns and belbrv throe witneaee. He forbad that any man should be eold oak of | the country. Ho subitilnLed mutilntiun for capital paniahiDeat' This may not be an cxhaiiMtiTu list uf thr lawn that fa« publii^ed. nor can we be certain that in any caa his v«iy| wordi have cone down to us; but wr have good raaaoa boliove that iu the way of expcea legislation be did thaw ! thioga and did little more.
d epWa MWitt yhfloM-t* •• U be* iw *Aatl(Kria«h- k alliliil ■• ha ■ niiilliiifl u a diftlMl wUah hsa • hMory of Us im. Sw bhnw is AmI-* OteadiiM a. Ovnaa. PhfMaflii, 1. an. T« 4te»Ur «ilb l>w ssm» • Fiaiili' iIm mmm *Jc»Piiiih' Um* •• ftad is U« nfmu d Um CMiltir^ la fWatftai
> Un of WilUus (Mm Cb«r««i). c T.
i La. WOWbL iT.i ls*ar. HM. Rev. ^ la
• 1a*« of WaUsn {9dtak CkmiUnU e. L
• Lsvs.s.1: A-aObna. as. Ute*; T\Mmm.ti. i%.
• Umw «.«.«( hm» waL L ta. • u«m. « a i um» win. a.
' Un. Bi T, «. * UwK : <. ». 1*.
CE. IV.] Engkntd mtder the Norman Kings, 89
In the long mn by tar the must important of these rules will Cburiicter be that which Hecurt« a place io England for the canonical liamaUwe. Jurisprudence. And tiere we have a goad instance of those retmltA which flow from the Norman Conquest — a concrete coiii|uest of England by a certain champion of Komau orthodoxy — which are in. no wise the natural outcome of the mere fact that fingliJithtDen were subjugEited by Normans. For the rest, there are soroo rules which might have come from a king of the old race, cimltl such a Icing have been aa strong a ruler tLS WiUiam was. He would have had many precedents for att«mpimg to prevent the transfer of Rtolt'n goods by prohibit- ing secret Balefl*. It wiia tild. if disregarded, law that men were DDt to be sold over sea". It was law of Cnut'a day that every free man should be in pledge'. A wave of reJigioue sentiment had set against capital punishniout*. Whether thi; king could exact an oath of fealty from all msn, even from the men of his men, was a question of power rather than of right'. Only two rules drew a distinction between French and English. We may doubt, however, whether the murder fine had not its origin in the simple principle that the livea of the Normans were to he aa well protected in England as the lives of Btrangert^ were in Normandy ; at any rate the device of making a district pay if a stranger was murdered in it and the murderer was not produced in court, was not foreign to Frankish nor yet to Scandinavian law. We are also told, though the tale comes from no good source, that Cnut had protected his Danes by a fine similar to that which was now to protect the Normims'. Again, [p.68] the procedure in criminal cases is by no means unfavourable to the men of the vanquished race. The Englishman whom a Frenchman accuses has the choice between battle and ordeal.
> Th« preoedant* are ooUeoted in Sobmid, GloBsar, b.v. Marktreeht.
> £th«lTed. T. 2; Gnat, n. 8. ■ Cnnt, ii. 20.
* Mthdxed, ▼. 8; in. 10 ; Cnnt. ii. 2. ' Edmund, in. 1.
• Leg. Will. 111. 8 ; Leg. Will. t. 32 ; Leg. Benr. 91 ; Leg. Edw. 15, 16 ; Brftcton, f. 184 b. In Swedioh laws it is common to find the hundred charged with a fine of forty nurks (the exact snm that the Conqaeror demands) if the man slayer be not prodaoed, more espeoinlly if the slain man be a stranger ; Wilda, Strafiecht, 217-216. Some similar liability seems to be indicated by an early oapitnlary added to the Lex Salioa ; Hessels, Lex Salioa, p. 408 ; with which should be oompared Leg. Henr. 92 g 8. Henry I. in his Coronation Charter, c. 9, eeenu to speak as thoogh the marder fine was known to the laga Eadmardi. Liebermann, Leges Edwardi, p. 112, rejects the stoiy abont Cnnt.
90
England under the Norman Kinga, [bx. 1
The EngluhniAn who briiiga an accuaatiuo can. if he pleaaet. compel his French sdventary to join bnttlo; othcnriw the Kreochraau will be* able lo swear awmy tlio cbargv with oath- hclpcni ' liocordiDg to Norman law.* Cortaiuly vc can not My that tht> legittlator hero ^howR s marked partiality' for one rlaas of bis BubjocbL In this mattt^r men* ojuality wtmld wM be otjuity, fur Eugliab law hoii noi knuwu tht; judicuU oomfaal, and perhaps the other ordeals have not been much naed in Normandy. Ab it is, the Eoglishman. whether he be aoeoaer or aocutwd, oan atwayn insist on a wager of battle if he pleaaaa; he is the Norman's puer'. '" In difTcrent agea and cirenmstaacea the pride of n oooquer- Isw. ing race will show itself in diffennt {bmu. Now-a<dayB the
victor may regard the conHict as one between cirilixatiun and barbarism, or between a high and a low morality, and fone hia laws upon the TAnquished as the btat, or the only reasonable laws. Or ftgain, hv may duUbotmte^ set himself to deatjoy the nationality of his now subjecta, to make them forget their old language and their idd laws, because theae andanner his tiupramacy. We «eo tomotfaing of this Und whaa Edward I. thnutJi the English laws upon Wales. The Wnlsli lavs are barbarous, barely Christian, and Welshmen must be made into (^1 Englishmen*. In otd«r and less potitio days all will be olbar- wiae. The oouquerors will show their contempt for thv oooquered by allowing such of them as are not carved in live under their old law, which has become a badge of infaiorilf . The law uf the tribe is the birthright uf the men of the tribe.
> LsiM of WlUiani. «. •: Utem WUUIsii. tL Bad WlUua mU to Ite BaglMiMs. * If yon ^eaam s lf«nnsa. joa ■uul ^ofl iW lUniMl^ la* aai oBn hsttk,* tntm OOm ooeU not hsvs tote n«u4>d m s ijfSMMai imimi li would hs«» ban sa inttmtiMi of Um prlociplt uf * p«wasl kv/ «UA wmM bav* iovkti flmaMfy stBHabU. As ii !«. Um Nocibui Ua fc> fmm hkmmU ma dMOfh Um Ihnrfislnnsfi will aoi a«bt Hs puia hlmiilf vlifc 'tm m/bnkm oatb.* 'aUd aalDsadaa sS*.* 'mmtmmom sm frMia' Ibfa to a itftesh pfcnus. Arpsnntljr s *knlua' or 'tosaUac* ostli k sa «aih wmmm 'Ui TMUiram obMrvaaUU." snd is ss oslb brotoo sp toto |^-| -. mA ol •hloh BiMt b« raptstod with puDoUUoai SMWiaui' b; Um swmsm as u b diitolsd to Um b; tui ■Jmmr7. U Brnunr mw to WOlton't too a pnvWoa Ifaal IW Vonaaa pmti m* awmt to wonb dWtotod by aa Ii«IUnhb. Bnaow. FtitoshiM 4. Bstlfay-tkinwicGccsi. Ato. 1*0^ aM.sad PoL Btkmm Qaartwiy. a. WT; FofhaiipM. am.
» Bwliiif afAbp-Nobhsawtnt lusr niTin ri iimriMhaii Ill—I to dimnte arttoalU oMsf*.*
CH, TV.] England under the N'orman Kings. 91
anrl aliens cau have do part or tot in it. Perhaps wc should be wrong were we to attribute any larj^e measure of either of iheae aentimeuts to the generality of the Norman invmlers; but probably they stood nearer to the old and tribal than to the modem and political point of view. A scheme of ' personul would have seemed to them a uatural outcome of the [uest The Norman will proudly retain his Norman law nod leave English Ulw to the English. We have seen that in nmtters of pwcednre William himself favoureil some such scheme, and to this idea of personal law may be due what is apt to look like an act of gross iniquity. Roger of Bretenil and Waltheof conspired against William; Waltheofwas condermied to death ; lloger was punished ' according to the law of the Normans' by dMherison and perpetual imprittonment'. But it waa Uto laUj for a 93-stem of * personal/ that is of racial laws. Even in F'ranco law was becoming territorial, and a king of the English who was but duke of the Normans was interested in obliterating a distinction which sttKxl in his way if he was to be king of England. The ndes which mark the distinction between the two races rapidly diaappi?ar or are diverted from their original purpose. Murder fines will swell the royal treumre, and early in Henry I.'h reign it i.s alremly law that cnreiy al&in man is a Frenchman unless his Englishiy can be •iq pcored". Outside the towns, Englishmen scera to have taken to trial by battle ven»' kindly, and already in the first 3'ears of twclflb century William's ordinance about procedure had it» force'. No doubt William and his sons distrusted
* Orderio (ed. le Prerost), it 3G4. Dr Btubbs, Cooat. HUt. i. 401. »;■ of Boger** pnttlihnuat, 'The ajune penalty rauiit hftve rollowed if \\a Lad been tried by BnglMh Uw.' But nndvr tlia old Eiigliiih Uw oouapiracy a^&iait Lh« king wsi ft eaplul cnrno ; and OnUric (p. StS) raakofi Walth«of remark thai thu \» W. Boeer. w il •cmnii, is treated as a Soruaa wbo has rebelled and levied war ■Calnrt Um dnkc. Manjr Kxamples of earlier ami of later date show u« that th«: dok* rmrwly puta a vaawl to death for rcbvlliuu. We miiitt remenibor that WQUaiD !■ Bttnlx duke or coont of the NormaDR, whii« be i^ thtf crowued and ■Oofaltod kiim of the Kogli^h. It may be that aruAsr thd Conqueror'a own onliiwsM Waltlieof Hhould have been, nut decapitated, but mutilated ; but *tnlcfiAi«o ne quia oooidator' do«« not bind the man who mya it.
< Uk. Hs»r. 9S f 0.
* la Donwodajr Book EDRliiihnieri are offering proof b>- bnltl« ; ni^low. {"laeita Anglo- KortnaD men, 4j), fSO, The Legei Henrici do lonjter make any diftiDClkm between the two mceii In Ihifl uiattfir. though tbcjr atill nlluw ftanduiiMi and alien* to swmr with 1m« aocnracy tlum would be required ol HI Kwtliaiifiian : Lag. Hen. M, fi 9'
f-J
Ejiglaml under thf. Norman Kings. [bK. T.
ihw.
the &iglub; even Heiiry would suffer no BnglUhinaD to b« abbot or bishop'. No doubt too tbo EDglish wura hftnihly aad At times bnitallj trektcd ; but bAnhneai aiid brutality mn thing, mu atttnnpt lo nilc them by Ntnniui law would have another.
Indeed the capital infftanoe of hnnh troatinvnt coiuunts in Ui applicaliou of the thmiry that they hav« not brcn cuii()uered by ibreigo «nomi(w, but, haring rebelled ogiunat one who ww de iun king uf the English, aro to be lawfully paoiahed lor their uiiUwful revolL Thoaa who fought by Kwold'a Md* furfeited their Unda, aud ao of oounw did thuw who raaialMl William after bo waa orowned. ThcM for^tarM, ao br ftvoi dtsaring tho way for pure Norman land law, had the aflEwt of briiiging cvun the Nomiiui borun* under Eiiglixfa Irnnd law. Here a cunibiDatioii tuigfat be made of all thAt waa favounbto tu the duke iu the Xomuui. with all that wim fnToormble lo Um kin^ ill the EiigUiih nyiitein. WilltAtnB tmiuil* in chief w^tv lo owe him definite quantities of military aorrieo ; tho aocamrhnt vaguely territorialiKod scheme which had prndacrd HarokTa army waa tu be superseded by n M*t of dctcnniiiatu OHitnct^ more determinate perhaps than any that had aa yot bean eoo- eluded in Normaody. Ou the other hand, the king waa goipg riguroujily to exact the old English land tax, the danegeld. With geld in view he ■chiered the mort. magni6oont of all hia Iwta. the compilation of Domesday Book. It ia vory poanbU Chat he purpcmed to reform the capridooa aawaamant which had eome down to him from hia oDcestocB. In the meantime; h«w* pver, each Nonnan boroo wu to stand in the geM ejstero jtuft where aoroe oiw EngUshmoD or aome definite group of Englirfi- men had aiood. For the purpoae of toxaiiun the Knadunan Auccvoded to the dutioa of bis Engliah onlaMMorat, Moreover, what the FVenchman snooeeded to waa in many caaes a anpcri- ority over free tononta of Uio aoiL The rigfala of theae tMiabiA might be left to the nncoveoaniad mwoea of their naw lord i but cbe auperioritj often includfd righia uf a juriadkcional kittd, rights of 9ak§ and aoibe. and in this matter ibe king ha<l ao iutiTcat The French lord was not to get other finca and loHei- tanm than thooo which hia imfsoegaor had receivvd. Fur a loi^ time after the Cooquoat a aerioua attempt waa made to maiw the old law of aoiv and §ot» deapte ita arehoiHML
I
IT J Mngkvid under the Nomian Kings. 93
All this made English testimony and English traditioq of Tiic ince ; the i-eliitlve rights of the various Noruian magnates in'conrt. known only to EngliKbroeio, Engliehraen were mixed up with Frenchmen at the moots and often spoke the deciaive woni. The aged ^thelric, bishop of Chichester/ a man vt-ry Itauui.'d in the laws of the land,' was brought by the Conqueror's command to Penenden Heath that he might hear Lanfranc wax eloquent over sake and soke and Jlymeiui-fi/nnSK Eadric the Btoenonan of the Confessor's ship, and Kineward who had been flhenff of Worcestershire, Siwani of ShrDpshire, tiud Thurkill of Warwickshire were ready to attest the sake and soke which the church of Worcester had over Hamtou and Eeugeworth ; but the abb(.»t of Evesham dared not face them*. Gixlric, Godwin and Colswein were among the 'approved knights French and Knglish ' who heard the abbot of Ely's snit at Kentford, and that Buit, in which many Normana were concerned, was decided under the kmga command by a verdict of English jurors who knew how the disputed lands lay in the time of King Edwaixi', The abbot of Abingdon was protected in his possessions by the learning and eloquence of law^'erly English monks, whose argu- meijta were not to be withstood*.
On the other hand, it is not to be denied that the few N'tmuui legal ideas and institutions which we can confidently describe iMtitu- as imported from Normandy, were of decisive importance. This '*^''"' is pre-eminently true of the transplanted Frankish inquest. It has in it the germ of all that becomes most distinctively English in the EInglish law of the later middle ages, the germ of trial by jury and of a hard and fast formulary system of actions which will be tough enough to resist the attacks of Romanism. However, the fate of the inquest was still in the balance a century after the Conquest, and, but for the compre- hensive ordinances of Henry II., it might have perished in England as it perished in its original home. W^hether any definitely new idea is introduced into the English land law is a more disputable question, that cannot be here discussed, but
) Seldeo'i Ekdmer. 197; Plac. Anglo-Norm. 7.
s Heming'B Cartulary, i. 82 ; Plac. Anglo-Norm. 18.
* BamDton, Inqnintio Cantabr. pp. xvii, zviii ; Flao. Anglo-Norm. '22.
* Hilt. Abingd. U. 2 ; Plac. AcglO'Norm. SO : ' wd et alii plures de Anglis eaoaidici per id tempas in abbatia ista habebantur,' This doea not imply the exiit«noa of men who ore lawyers by profesgion.
94
England under tJie Ncrman Kings, [bk. l
iimJoubtecUy tb« ooDquest, iht* forfeiture, the mlialnbuLhiu of the Uud gttve to the idea of depcndunt and dorivalivc keniiK * dominADoe that it could doI nbtjun daewbens and aboat that idea to ila Nannan or Fruuch shapv thnni clung treditionii at the old Pnwkiah wurld. which in the subjugattid oouutri uimW itA foroign kings might bcAt fniit in a Umd law of ancxani|4«d simplicjlj. Am lu th« institutes of privalr law wo know moch too little to justify dogmatic oaeriptiuus of this to an Kngtidl Aud that lu a frvooh origin : and whuu Ibu Frunch origin wmy l>c granted, w« are br from being able to my tbat here is somotbing which the NormoiM brought with them is ibo year 1066. Fronoh inBuunom hod been at work in tbe ooart of Edward tb« OoofwKir; Frankish in6uoDcoM had b«en at work in the courta of much uarlivr kings ; after the Omquoit KngUnd lay open for two (MOturiaa and mote to the laicat Ftfiaui fiuhions. For exmnple, tbe atyle of tbe Bogliflh ohapoeiy nod this in EtiglamI becomes ibc Bsodel fur all logal docaniantB — goes bock by one path and anotlur through the FraokiiJi ohancary to Rome. But the paths an very vnrioua. Somo «f the CoDqueror's chartem arv very like those which Edwaid and Cnut had issued, aud very uulikc thuso of Henry U^ Wo may say, if we please, that the son), of which our taw made mucb in tbe later middle ages, of which it makes moch at tbe prwent dey, is Fnmcfa. But the Coufcnsur had a seal, and in all probability but very few of tbe men who fboght by the ude of tbe NunaaD duke had aeala. Tbe chief resalt of tbe Nonnaa Cooqoeat in the bistacy of law is to be found not so moch in tbe sabjectioo [p. r^ of race to moo as in tbe ertablishment of an vxcvvdin^y etraog kingship which proves ita stnsgtb by outliving three dispatad Mieceasions and crashing a rebellious hsrmagn'
During the whole Nonnan period there was little legidMkn. Wv have i^K>keD of tbe Conqueror's laws. It attiMS probable that Kufus set tbe etataple of granting cbarten of liberties to
1 StonasBa. B. a It. sL TSli as
■ Df Bma«. EttMdvlh 4. Bviigmy-WtUu^, Omn. AM- «vlL m. ta mtIsvI^ Ihi ftru *liliaii d ikia hoak^ny iKU to tii sftalaa •• W»» whIot Mliasad the IsBsmm vi KsoMa lav sad ■iwwsfcsl siMisIsi tte isltlatmy frf Hny It<i lifMstioa. UmmjUmK TW|i II iiU' fully s4«il thai is say am o«r fHnto ta« and Is* of FnaA tnHs. TU BivlUi iliwil b si Ita i> i j H Ja fsMWial *.$. Is th» Mtt-fcaAal ■oasi^ sowt.
cH. IV.] England under the Not^ian Kings, 95
ihe people at large. In 1093^ sick and in teiror of death, he set hia seal to some document thut has iiot come dowii to us. Oaptires were to be released, debts forgiven, good and holy lawa maintaiDed '. Whatever promisea he made, he broke. His cJ^im upon the historians of English law is of another kind : for he surely built her an house to dwell in. Englishmen were proud of his work at Westminster. Search the wide world round, they s^aid, there is no such hall for feaat and plea.
Aulitim maiorom construxit LoiiiDnianim, Orbi» torT«riuD uou optjnot utillorem ludicibus legis, ac ad coovivia regie, R£gum PGgnorum floti est domus IUa dotuonmt''.
The Tctsea are nide but have the right ring in the ears of Englii^b lawyei-s.
Henry at his coronation, compelled lo purchase adherents, nearj I. gmnted a charter full of valuable and faii'ly definite conces- noM*. He waa going back to hia father's ways. The abuses iutroduoed by his brother were to be abolishedj abuses in the matter of reliefs, wardships, marriages, murder fines aud so forth. Debts ajid past offences were to be forgiven. The demesne lands of the military tenants were to be free from the danegeld. Above fill the laga Eadwardi as amended by William I. was to be restored. Though the king required that concessioiis similar to those which he made in favour of his barons should be made by them in favour of their tenants, we can hardly treat this charter as an act of legislation. It is . rather a promise that the law disregarded by Rufus shall henceforth be observed. This promise in after times became a valuable precedent, but it could not be enforced against the king, and Henry did not observe it. The other great record of his reign, the Pipe Roll of his thirty-first year, shows that rightfully or wrongfully he was able to extend the rights of the crown beyond the limits that had been assigned to them in UOO, and the steady action of the exchequer under the direction of his able minister. Bishop Roger of Salisbury,
■ Eadmer, Hist. Not. pp. 81-2.
' ThsM UnM were probably written in John's day. They oconr in a legal c<»npilation disoovered by Dr Liebeimann : L^es Anglonim, Halle, 1894, p. 67.
■ Charteis of Liberties (Statates of the Bealm, vol. i.}, p. 1; Select Charters. Liebennann, Trans. B. Hist. Soo. tUl 21, gives a oiitieal text.
..^^
96 Engiand under ike Norman Kings, [bk. L
tfvulvecl M. Uw for the tenants in chief which ww perhapi the MTOiwt io Europe'. This was dona in ailvnoo by the •ooumulft- tioo of prao»dent iipuu preoectont. For the rert. W8 know thai Henry* Mfly iu hi« reign, iwued a writ decUrinf^ th&t itw ooooty ^:^ and hundred courts ahould bo held oh they won bftkl in Ibe liuie uf King Edward, ntnutly enjumuig nil men to akUnd tbuna in the ancient fiuhion wbttoever royal pl«aa wore to b* bvard. and in auma nHjasuru UeBning the rvlatiuu uf ihtnw uhl Iribuoala to thf feudal courts*. We ore tuld that be legislated abovt thafi, rcatoriug capital puniihmcnt, that ho issued Mvcre laws against the utterem nf bad money, that ho prohibited the rapa- rinns exactions nf his courtiaa, who had made the advent uf lua ptripat«.-tic huus^rhuld a terror to over}' neighbottrfaood* that h* tfgislated about mi4untr«*s taking his own arm as the atantlard ell ; but we depuod on tbo chmuiclen for our knowledge of Unee acts, and aa yet they are not earefal to pretenre tba wonb of thr lawgiver'. We have, however, a writ in which bo ifiwke of the ' new statute* ' which he had made against thieves and Use mooeyeie*.
Stephen oo his acuession conceded to his subjects in vague phrase 'all the liberties and good laws which Kiug Henry had given and granted tu them, and all the guud laws and good customs which (hey had enjoyed in the time of King Kdwaid*. IjUer on he had to promise once more that h** would ofasorve ' the good laws and just aud ancient cnstoma, as to murder finas.
1 Ths Pips RoU of n Omtj L was sAtad hy Haate br ifc* liMri Cam- ■■sloiwi*. Wc ibsD humllm ham man tkaa «■■ oawurfaa Is nsaark oa lbs rdatioo thiu It Uan to Um ehuUr at IIOO.
"Tir -It 1r (I 111 111 -tilliliiii riniiiii. wi lliliaMiiis Qm^IisiiIim.
" L^Ustka Is UM Abeat IhiA sad soiali^ : n iiiii.ll IT. sda^ A^S. ChroD, SB. UU, and FMtea, L U. 1 utiliana -rt-fl akiMs «f i^^ pomTsaM sad sgalad bsi auaqr: Badav, HIM. Ksv. IM^i WQL TiTr^ 0«la BsrsBi. U. 4TS. Isnidsllnn aboal wmft: Ona. 4s BMOo, »» Itea AngliKyonB. tM. LsfWsUoo sfaost iiiiaws^ WIL TTilasI Gate Ikpa. U. 417 i in ifaU Imi psMsgi li W mU ihu loMt^ tfas «i4 «f hb M%a Rvfy larilssd ryhsr ts pssoalsiy aalsto ihsa Is sDfpnml paabksMM. TW sssss- ■at of ««lMr rate hss bsn ■■iriliif lo B4B17 ■anljr baauM Um; sf^Mr la As tat-book kaown u J>«m IfavM. sT wlikk hmafhs.
• llhlfwkss s< Chanih of Tnrt, Bl. W ; '-* n-i -^Urts 1 ds HmUIs lliiiaBSi ii rshonioi Mso»tekns> ■■s|wlii M taki |i MOfOi] pmt •Okin |«ofviAiu luatiliaiii in citri* vsa.*
• Ourlm ol LibrrliM iHuUtea uf Um Bmim, U% p. <} BtaUs, CoBiL BIA. L MdL
CH. IV.] Eiigland under ike Norman Kings. 97
piraa and other matters,' and that he would extirpate the
anjust i>xactions introduced by the Bheriffs and others. More
^^ specific promises made to the church, besides the large and
^P fUn^rous prumise that she should he ' free'.' In the eccleeiaa-
~ ticttl sphere there had been a good deal of legislation. With
th* ascnt of the king, stringent caoon-^ hafl been enacted and
einforced ; in particular, the rule of celibacy had been imposed
upon a reluctant clergy, It was in the ecclesiastical cauucU,
yn] ruthor than the kiug"'-s court, that the spirit of rQfonning legisla-
tion was once more active^
The be»t proof, however, of the perdurance of the old The Law- EngUsh law is given by what we may gcnerically call the law- 'Leges'^ books of th<p Nonnan period. The Conqueror had auiencled and confirmed the iaga Eadwardi i Henry 1. had coufinued the taga Eadivardi and his father'es amendments of it. Where then could the law of Edwanl, that is to say, the law of Edmud'fi time, be found ? Nu doubt a good deal of it was to be found in the csode of Cmit and in the yet eai-lier dooms. But the language in which they were written was unintel- ligible to FrenchmeDj and was fast becoming unintelligible even lo Englishmen, for just at this time the English language was undergoing a rapid change. What is more, it Vf^s plain that, despite the large words of the Norman kings, the old dooms in their integrity could not fit the facts of the new age. Thus what was wanted was no mere translation of ancient texts, but a modernized statement of the old law, a practicable laga Eotdwardi. Divers men in divers parts of the countrj' tried to meet this want. The result of their eflforts is a curious and intricate group of writings, which even at the end of the nineteenth century will hardly have been unravelled. We shall here speak very briefly of it, adopting what we believe to be the soundest results of recent criticism*.
In the Hrst place, we may put on one side certain docu- Oonuine ments which profess to give us, not the old law, but the results w^»m L of William's legislation, the documents from which we have
> Chftrten of Liberties, p. 5 ; Select Charters ; Stabbs, Const. Hist. i. S47. As to the date of these charters, see Bound, OeoSrey de MaDdeville, 488.
) As to the eocleeiastioal legislation, see Stubbs, Const. Hist. i. 404.
* Dr Liebermaon has gradnalljr been restoring the legal literature of this period. Lagam Eadwardi nobis reddit. His forthcoming edition of the Anglo- Saxon and Anglo-Norman laws will probably override some sentences in the following brief summary.
P. M. I. 7
98
England under the Nwrman King*, [luc L
tr^Mtei.
Already exlnctvd oar acoounl of hui L-dicU. Wc probahljr bare in iU orijinnnl funn, that »f a writ MUit into ibe various Diituiti«B, ihv ordiiiaucti which mvtired th« ecipl4i«iiMrtir»l bum the teupurol courts*. We have in Knylwh an well aa in LmXI the ordinaDoe about crimiiial aoomatioaii broiif^ht by ram of thm DOS race againni nun of the other*. lAstly, w« have a att ol ten brief pangr^iha dcaliuf; with thv ualh uf TvaJty, the mttrder fin(>, the abotiti<in of PApital pimixhniciit and the oiber ip,t matteiB which have nlixiidy come bt-fort* uh. Theae ten lam may not have bovn ooUoctod until Hnne timo aftor tho Coo- queror'fl death, and it i> inure tluui probable that wo have ml Uie words that ho umkI ; but the colloctioa aeoma to faava been made early in tho twelfth, if nut beibre the end of Iba alevenlb century, and tho roaolt ia tnistwurthy. At a much lattrr date Bomi.' one tampered with thitt m^i of lawit, int<>rpiflaU<d new matter into it and threw it into the fonu uf a »ulvQin charter'.
But we must pan to the attempta which wen made to state the Ittya Kndwardi. In the rei^i uf H«mry I. miDe ooe •et himaolf lo inuuUte the uld dtMinut iitl» l^dtiu. To all aoMB- ing be wm not an Enf;iii<hniAn by nioe and Eogliab wae not hk natnml Umgiio. He rimy hnvu boen a aucnlar rierk livinj; «t Wincheater and employe<l in the kingB oonrt ur exchequer. He waa cloaely oonnocted fay aone tie or another with Airh' biHhop Gerard of York. We have mon than ooe edition of hia work; theee can be diatioguiabed tram «cfa other by the author'fl incrsaaing maatery of tbe KngJah kuguafD. lho«^ lo the end he oouhl |icrpi<trBtc ba<l nii»t«kva A» (be work weai on. he conceived tho pnijrct uf adding to hia L«tin venion of the ancient dooma three utber books and calling the wbela LAtr QwuinpartiUu. Tbe fint book was to coataio the okl "["g*^
1 ThM U L^|M WJMml it. of Tbovpt mat Bchmid. • ThU U Utm WOUUbI o. of Thorp* hmI HwhwH
> Tb* wc eriMi kwi U ihkt priatat I9 Dr Mabht la hb wUAm of Hnwiii. *qL li. p. ei. tiA acmln ib um Bftloel Char««r«. Ii u; b« «aafi«keUf nAm4
l4i M i/ic tmtim*tmr. U aiao kppMn viUt kmm tutenl* in |1m ImM U l|i»dlia> CtoaoleK veL tt. p. tU, Car Bofaim hmmU U «Ih«i m4« Uw fm» llfl^ l» Heata rf OkatW* appa'atnit la Iha )nrtlifaiiMp llilii—i UtiN. P.IU. ■alloBB lb* ^ lAiob gi«* il aW ^ Uial U «w 1 10*7 and Wbn IIW. A rMaih vw^a o( Il frow aaA. att. W gHv te Mbrift ttr r«naninW PhOolovki. six. ML !%• iiipaaJil bra of U te Imm WUWmi UL or Tboriw a^ SibaiM. Dr llitiianiia laWi DMa l» W Ow ««ak of • UmAaom M 4olM't mo. sIm Iilflal4rlns|t w<lb Mev «■ L^M Aaglana, ji, SI C
CB. IV.] England under the Nonrnm King.<. 99
laws done into Latin ; the &ecoud was to contam Bomo im-
portant State papers of his own day ; th<j third was to be about
legal proceflure ; the fourth abtiut theft. If the two last books
were ever written, they have not come down to us. The Hrat
and aecoud books we bave. The Becood opens with tbe corona-
lidio charter of Henry I. Then, apparently it pui'poses to give
^ u§ the dwumeuts which relate to the quarrel about the in-
^P Testitures ; but it gradually degenerates ibto a defence of
Archbishop Gerard, The author seems to have been at hig
|k77} work between the years 1113 and II IS; but, ils already said,
he returned to it more than once.
Whatever grander projects he may at times have enter- tained, what he has left as a monument of English law is iu the main a laburiuus hut- not very successful translation of the old dnonie. He translated after his fashion moat of the dooms that have come dowii to u&, except the very aacient Kentish hkw^, and he translated a few which have not come down to us »AV« through hid bands. He translated for the more part wilhuut note cw comment, tt^uslated honestly if uniiitelligeDt-Iy. But he aapired to be more than a mere translator He put
»Cnat's code in the forefront; this waa the latent and niost authoritative statement of EngliBh law; the earlier dooms — they go back even to Alfred and to Ine — come afterwards as being of less practical value. He does not regard himself as a mere antiquurianV
Closely connected with the Quadripartitus is a far more tegea important book, the so-called Leges Henrici. It seems to have *""**• been compiled shortly before the year 1118. After a brief pre£u%, it gives us Henry's coronation charter (this accounts for the name which has unfortunately been given in modem days to the whole book), and then the author makes a gallant, if forlorn, attempt to state the law of England. At first sight the outcome seems to be a mere jumble of fragments ; rules brought from the most divers quarters are thrown iuto a confused heap. But the more closely we examine the book, the more thoroughly convinced we shall be that its author has undertaken a serious task in a serious spirit ; he means to state the existing law of the land, to state it in what he thinks to be a rational, and even a philosophical form. But the task
> We luT* here tried to earn ap very briefly the resalte attained by Lieber- mann, Qoadripvtitiu, Halle, 1892.
7—2
..i.^"^
100
En^nd under the yorman Kings, [bk. L
u bofaod hid powcn, F«r one thing, hin lAtin u i»f thii worst ; hi* Iranit it in a. had ■chool &n(J it will hardljT Mtfller him Ui exprvaa hu» mvuoiug; prubably his luulhur Ujogve FnMich. Then tbo books from which he oopios him ; hi* ouiuot adhun.' ki any vnv pUn t>r puniic may uon li of ihuu^ht. Nwrrthokw* he is in c-aniMl. luid when ht' loavi? hiM biMikM alone* and nuoceod in uiploining hinut^lf, UflU tu nittt)}' thin}(S ihiu ore nf great value. Ho h«d * guod mui/ books At hia Curouiiu)<l. Hv ttH>k much fran Uw md* of Onut lad firota Home uf the older d<>om>», but anUm (this it tp.i not tnipcMuiible) he himftelf wiw ihv nuthnr <ir pntjtwtor of th« QuadripariUiu, be aeema to have ht-t-n t\f\<- > ' book of that work for hi* text uf thi-m- u|<| I i ^ :•. ^
object bning to (ftat« the taya Kadwnrdi a* amended br tbo C^itKiucmr and H^-nry I., he naturally mode gr«at tue of thia Eiigliidi matter; but he dipped at tim«« intu otbitr ■pnngit He had found a simrDo of ' gt*neral jnrupmdMioo' in laidon!'* Oru^neM, EccJeeiosticid cauMW wcrv do lot^gof aubjert tu bo- tire Knglif^h law ; thf* ConqneriT bad handed them over to th« eanoMl, and fur the cunoitctt uf the cnlbulic ehureh our aulhor hud to look to foreign books, in porticnlar to that onmptt by fiurcbord of Wortna. He took n few paaaagen friKn I venerable Z«r Saiica, from the /4x Jiihitarui, ftuin th« Fraiikiffh cupitulanm; w« may lafoljr aay that, had tbeae andtrnt outbohtica bven regarded by the Nurnianji in RngUiiH •a practicable written Uw he would have token rooc*. He look one little aentonco oat of an upitume uf the Wert lloth e vvMon or Uie TheodosiAO Code'. Bnt the most intimay parte of hi« work are thoae whieh we can tnoe lo tecnot«r founL If they paint EngUfth Uw a« a wooderfi eopftirion, they may yet be painting it com^etly, and b«ftw« nae hard words of him who wrote them, we idiuaJd Uiut he waa engaged un on utterly new laak, di!W in Bnghod,
t Ur. BMf. M I t. R« d«M UW TliMlwlMiii t^^k, k«l «hrt b*
(mUj hM oadw lh«l DUD« MMU lo W the ZfiUmm Aagkiix i m» ttteil. La BooiMk Vicicotharan. p. Ut. TUa duiioe. vbUh mv to Um iMiibi «C lilnvy •nmiiy. Iiai b«a otfmdM pcooT of lb« ftwnknm of tmmm h» la Ea«l«idt beltfwfcMlhaleaff aalbor kadalsnaa Wok aaa tmA h^ wm ■islWH tnm it, b wmSif a •Woos htlMum la iW Uion^l^r " r ii nlliiB^M of lb* Kmikb Uw of hla (U7. II ti ifnlto fomMt thtf ba h^ kM * liagb vnloMa <il iani^t tmufuni b». Tb« ««/*<« aoJ IMmthm mmrl^i^ aiaag «Uh ■yliioM si Alarit'a BntUiy.
bar
m. rv.jEngtmid under the Norman Kings. tOl
Dew in Europe: he was writing a legal test-book, .a teKt-book of lair that was neither Roman nor Canon law. To have thought that a law-book otiglit to be written was no small fliploit in the year 1118'.
The writer of the Leijen Henrivi is in some sort the cham- The fyon. piwi of West Saxon, or rather of Wessex law, Wesaes is in his f,utitiua
» opinion the h^'nd of the realm, and in doubtful cases Weasex ''""''' law should prevail^". Other attempts to state the old law were made elsewhere. In the early yeJirs of the twelfth centmy two Latin translations of Cnut's dooms, besides tliab contained m the Qmidripariitus, were made, and in each case by one who trifnl to be more than a traDslator ; he borrowed from other Ali^ln-Saxon documents, some of which have not come down to uft, and endeavoured to make his work a practicable: hiw-boc»k. One of the most i-emarkable features of all thoae b<wks is that thfir authors aeem to be. at least by adoption and education, men of the dominant, not men of the subject race; if not Frenchmen by birth, they are Frenchmen by speech'. At a later dat^?. Home forest laws were concocted for Cnut, but to describe these we must use a har&h term ; to ail seeming they are the work of a forger, who was inventing a justification for the oppressive claims of those mighty hunters, the Normnu king8\
Then we have another document which professes to give us Le» Lets the old law8, the laws which King Edward held and which *""**
> The prebce can not have been written after 1118, since it treats Queen Matilda ai living. The argamentB of those who wonld give a later date to the bodj of the book seem to be sufficiently answered b; Liebermann, Forschnngen SDT dentMheo Gesohichte (1876), vol. xvi. p. 582. His conclusion is accepted b7 Stabba, Const. Hist. i. 633 (ed. 1888). Two mistakea should be avoided. (1) Onr aaihor is not forging laws for Henry I. ; the title Leget Henrici refers only to the coronation charter with which he begins his book. (2) He is not pretending to set forth the laga Eadwardi as it stood in Edward's day ; he states it in what he thinks to be its modem and practicable shape. The inference that he was a man of English race has been drawn from a passage, 92 S lOf in which he speaks of a French thief resisting capture ' more boo' ; but be throws such phrases about in a hap-bazard way, and his knowledge of the old English language seems to have been small.
« Le«. Henr. 70 1 1 ; 87 § 6.
* Tbeae two tracts are Consiliatio Cnuti,' published by Liebermann at Halle in 1898, and Instituta Cnnti aliorumque Begum Anglomm, communicated by him to the Boyal Historical Society in the same year ; Transactions, rii. 77.
* CoDstitutiones de Foresta, Bcbmid, p. 318. Liebermann, Ceber Fsendo- Cnuta Constitatiooes de Furesta, Halle, 1694.
102
MngUtnd tmdet the Norman Kinga. [br. t.
King William gniDt«d to tho p«opl« of EnfrUnd. both in Kreiich and in Lutin, and tn diiitin^^iiii^h it fmtn itJi follnwti it ban b^^ii called tho hilinj^ual c<id«. W« tbAU call it tbf Leia Wittutnte. Its hiiitury ia ohacure and has batn made the nwro obaoure hy contact with the forgcri«a of the DJao Inf^tC Tho Lattu t«xl i» a tnumlatioo of the French tei thoiif^h not nti I'xact tnin«lation of anj renion of the Kr^nci t«xt that has come down to modern iimo*; bat thr Ftviii:h{ text may havf hii*n nuido fmm a TAttn or from an KngliAh original. That we have here no auth^fritativc code but mere private work will sctrcdy be diKpuu<d. It fiillc tDiii^wbat nutily into ihrr*' pnrtx. The firxt MHirnn to ronflist of orrtatn niloi i>f the old Engliab taw on iht'T wore ondcratnod oader the Norman kin>p} togethar with buuic uf tho Norman ooveltiMh &M Tt IK an intf*IItf^nt and to all fli>cmioj; a trustworthy KtAl4*mpn< It harmonuKa well with thf anrinnt dooms, but k nob up of extnota from them, lu author mfty hrnn bwn tpfrbHj fiuniliar with tho Danelaw. Tho Inst |)art of the document is a pretty doao tnmalation of certain pvta of the oodi of Onrt. Then between these two parts there come a few Mtklet whiek betray the influence of Roman Uw. If the whole document oomea from one roan, we can not well ftiipprM' him to hare dona his work after the early yeara of tht: twelft-b century ; hia statement of tho old lav seems too good to be of later date. We must further siippoae that, having com« to the end vt iba Enj^lish rules that were known to him as living taw. be hiit luemury fur other rules and sticeeeded in rei aoroe half-dosen large maxims which had caa^^t hit ty aome Boman hook, and ttiat finally, being weary of trying remoml»er and to define, he to<»k up thi- code of Gnai tmnslated part of it The fint nectirHi of hi* work is fiu- fraoi valueleas; it is one more pniof that ntti'mpu w«-re being made to slato the fo^ Badwardi in a ralional fc>rm. As to middle section, it shows us bow men were helplenly looku ab«>ut for some general priueipt<-« of jiin!i]«iidenee «hii>h doUvur tbem from their practical and intellectoal di^ull
> Tfa* AoOTniwnt in iiu-aUon Is Um L«m WilM^ i. •! llMtps sat I rat Um hitiory o( \hm mam, which (s«« Uw ftmnA vmioa tiw ll Qasnalr &•«««. Ho. ffir, ^ Mt, ia wkfab fn^nm fiwi lb* I^sMa* 1mtm7> A^ f hlMwina's Oattm^latk» OsMUahSHrstOaa. W« »• *sf(r, InJibtrf to t>r IlihwiMaii fm a nlasU* teuw Amliat^ mUk
CB, IT.] Eiiglaiid uruUr the Norman Ki7igs, 103
liistl}^ we have a book written in Latin which expressly lest* purpfjrtjt to gire tia the law of Kdward as it was stated to the Cqh/h. Cflnqinirur in the fourth year of iis reign by juries representiDg ""**' th« vurious parts of Engliuitl*, However, the piireat form in which we have it speaks of wliat was done in the reign of WiJIijvm Rufus\ and probably was cotnpih'd in the last years of Heury 1.*. It is private work of a bad and untrustworthy kiad. It has ^ibout it something- of the political pamphlet and is adorned ivith pioqa legends. The author, perhaps a secular cJwk of French parentagu, wrttes in the interest of the chtirches, and. it is to be feare<l^ tells Hea for them*. He pmfe»tes to hate the Danes of the past and the Danelaw. , Aocnrding t-o him, William, beinji; himself of Scandinavian
TiiAt the French tejl » the origin ot the LntlD Eb plain from Bevarol pB^anKfis, in puticnJftt: froai c. 45 wban comiiiared with.Cnut, ii. 24 (Che LatiniEtt thtnka Uwt roett measB 'let him aee.' wherozs it iiieanfi 'let him vouch']. Od this paint ■«« LiebermaitD, Qa&dri{iartita3, p. ji. The Latin T^raign ji Homotimea aoet^D^ly ilnpid; eee e.^. th>Q 'idaneoa cul^orea ' of e. 31. The t^xt has &2 diftpl4r>. From c. S9 oowanls we hnve a tra4iBlattoii of Cout. Thin, tha third nrtJQii of the work, ib prpcedtMl Ity f.is ntticleiC which, «hen taktin totjeiher, eeein to beitay Iktmon icfl.ueDce:^i2. 33, aenteucfl pt desth nn a pjegnont wome.n is Ufhe iv«pit«d (Dig. 46, 19, 3]; o. 35, a, fatb^tfiDay kill his daughtier if be finds bti eommittiDg bduLt^r? in his bou'se' or hie E^a-iQ-hiw's hocise {Dti;i;. 49, &, 2'2) ; c 86, ft poiMmer u to be killed or exiled for ever (Dig. 48, 8, 8 § 5) ; o. 87, a rmninisoenoe of the lex Rhodia de iactu (Dig. 14, 2) ; c. 38, the eviction of one eo-paroener does not prejadice the rights of the others, being re* inter alioa acta (Cod. 7, 66, 2). To these we may add c. 34, the division of an inheritance unong all the dbildren ; this, nnlesa enfant means torn, can hardly he English or Morman law, and is snrroiinded by romanesqne sentences. Perhaps we ought to place the beginning of the middle section as far back as the very important c 39 ; for 0. 29-82 seem destined to define the position of the English peasants as bong similar to that of the Roman eolofd. Thus we are brought to the end of e. 38, where the only now eztaot us. of the French version ends. As to the Danish traits of the earlier articles, see Steenstrup, Danelag, pp. 59, 306-819. The ananthoritative eharaoter of the document, if it be taken as a whole, is suffieientty proved by its style; see in particular o. 87, 88; but we shall not readily believe that even the first section of it comes from the Conqueror. As to the character of the French text, this must be left to philologists, but the result of recent disoussions seems to be that, though the language has been much modernized by transcribers, it has some very ancient traits.
' This is the Leges Edwardi Confessoris of Thorpe and Sohmid. See Liebermann, Leges Edwardi, Halle, 1896.
* Leges Edwardi Confessoris, c. 11. ' Liebermann, op. eit. p. 16.
* The exemption from Danegeld of ecclesiastical demesnes, as stated in o. 11, is, to say the least, exceedmgly donbtfoL See Round in Domesday Studies, i. »&-6.
•=B»
^
104
Tand under U-e yorman Kinfft. [bkTi]
Chinctvr
c4tb«ta»
Tmoe, wu on tho point of impomng the I>uiel«w npon tfa* wholo eoantry, but Mt length wsn iuHuoed hy tbo mippliant jurore to eonfinn the law of EdWard Thu, it in oxpUined. wu re&lljr the law of Edgar, but firotu Edgar's death until th» ■npimiirm of the ConfiMwr, Uw had slumbered in EnglatHl — tho« doM this rornnuccr atrivt to blacken the vaewowj of Ctoni, the great lawgiver. Little, it any. use is made of the Anglo* Soxoa dooma ; looMe, oral tradlitun i« the authur'n bmt warrmut, T'nftirtunately, however, the |jatriotic and oocleaiaatieal l««ii> iugB uf hi* book made it th(<'mu«t pujiular of all the okl law> booksS In the thirtL-cnlh ccntuiy it wui venerable : erca Braeton quou>d from it'. AUeeond and more politbed «di of it waa auon made by it4 authorV or another** hand; there is a Prcnob vcraua Ami llien m4*n nddrtl to it other piona tegonda about tbr gind old day* «hi*n »b«nfia « elective and thi< tik«u It \$u gone on doing ita bad work to our own time. It nboak oalf be oaud with axtmM culioa. ibr itit Htatcmf^otB, when d4I aapported hy other wideiMW, will hardly ti'll wh mort' ihiiii thtl tiomc mnn of the twrlfth century, prufaablj^ »umc man ol' Hc&ry L'a flay, would haw liked t ■talMBMiti to bo true'. 4
The picture that ihcoe ^w-booka tet before oa ia tbat of ancient Byatem which haa received a rude ahuck fnm witboot
boot
a
< HoMdMi. a. tl8, ttkM H ap iaie Ui ahfonWa
" BcMtoo. f. 1B4 h. LMOTiuaa. ay. rU. lit.
* Dr LMMrasun spuki of IkU vork iDaw dnt aco tai hl« '"■i*-**"-g fia I>iiloKiu de Boaceftrio, pp. 'n-7. U« ha» UM7 wriUm u MhMirtwi it. It •m'hm quita ior-mliblr thai (^ItuiriU lixl Anflbina to do «Mk of thU ho>ik TH* illflarwDr* b«t««an thv alita uf ihn* Ij||m ABJ lb* tt$U W th« IrcfttiM wK-hlm) to OluviU m (bv dllhnoe* lwt«>m dubkaa mhI U^ Tb» ftuthur of ibv LifM uaucHM tW ehanetw at ■ pAtrtells ffaglUI— >a «• fejputul Uv (WtaaWd tkuiH, but Usrold i» tot hioi ftn tuaqwr, kbd If not Froocl) kijr ^Ml^ Mama lo h»t* ragHdad FnMifc m hU naiani (0. If 1 1> wd nar faar» fcaswa tai Utito Softbh. TIm ■wawaal that k« of *lfaa IMW of Ood' fa. «) imb* to i*k> w fcMk imllMr Id PiwiA Itea to B^Biih ttidtHww, nitwiaaiiii Ihtoks Uut Iw mtMi )««• Ud mmm to lk» Utoaiy «f Km* aHwdt*!. pm1u|m thai uf (.lOMutfy. aad prohald/ ttvid la av iMar Warwlahildm. A VnMdi banaUikia of tim woA eiMa la w. tart ba aai
TMtoaaiiriBtod. Tm t^mttmmm,tm lUknwmuu, tdtm^M ttt Iiiti
JVlolovK xU. SI. TW iMcr that A« CkaqaMar aaaiad a adna Alwl of Hm !•#• Ktdmmdi to te OMdt by Joriaa ia wot «W7 prababta Sad i«db a ilaliBiiat toM auid*. H wooM, lit* Dimnilay Boot. !■•« Wm aWrtily liUBWiwI, aad ihata would hara bam ad nwai Ito tmA wvrka aa tlw L^m HMfMaadlbiUtoWtltiMD*. fttaw ibo tm -Atttoa bI mr book vaa Di Lhlwwawn (U^m Edwatdi, p. tS) bto da^tiffaly wjamd ifea tola.
CB. tv.] Englartd under the Norman Kings. 105
while within it was rapidly deenymg. The men wto would BtftK^ the t^xifiting law are compelled to take the old English douiDs as the ba&is for their work, t^vcn though they can hardly DadeRttAnd the old Kngliah language. The old doomb are wrillfln law ; tb*-'y havo not been abrogated ; they have beeii
tpotifinned ; other written law there is noae or next to none ; Nomiandy has none ; northern France has none, or none tKat is act cffot'O, At II pinch a man may find something useful in the new science of the canunists, in the aged Lex Salica, in vague nifuoufs of Roman law which come fi-om afar. Any rule that looks aqthoritative and reiwonable is welcome; we may say timt it is law beaiuse it ought to be law. But in the main we make the best of the dooms of Cnut and the older And the difficulty of making ranch that is good of them is not caueed merely by the colliaion of two races, or by any prffcrcncL- of the Normans for laws that are not English. No doubt in the local courta confusion had been confoundtd. by the influx of conquering Frenchmen ; but there were catiKes enough of confuwon which wonid have done their work even had there been no ethnical conflict to aid them. Every- where in western Europe new principles of social and political '«rder were emprging; new classes were being formed; the old laws, the only written laws, were becoming obsolete ; the state was taking a new shape. If from the northern France or from »*] the Germany of the first years of the twelfth century we could have a law-book, it would not be very simple or elegant or intelligible. As it is, our neighbours have little to show between the last of the capitularies and those feudal law-books which stand on a level with our own Glanvill. While the complex process which we call feudalism is transmuting the world, no one issues laws or writes about law. If in England it is otherwise, this seems to be chiefly due to two causes : — In England the age of the capitularies had not ended ; but lately Cnut had legislated on a scale which for the eleventh century must be called magnificent. And then that very collision between two races which makes the law-books disorderly and obscure has made them necessary. The laga Eadwardi is confirmed. Even clerks of Norman race wish to know what the laga Eadwardi is.
These law-books have, we may say, one main theme. It is PrMticil
problflnu
a very old theme. An offence, probably some violent offence, m tbe
Lego*.
106
Ejigtand ujider the yvrtnan Kings. TbK- I.,
hu boon ooramiitod. Who then is to get uion«y. ud bow much tnonov, out of tho offt-nder? It in the okl theme of ««r uul wU0 and b^ But the crimtnnl tarifT hu boooaui tatomd- 'mg\y oomplox, nnd in bnuikinf; dowu under its uwii wmghk la the ftnt plftoe the old tribal diflTcrenoes, which hATc beomie \iica,\ diffV-rt'ncc*. can nnt yvl b<* dinre^^anlMl. A text irritn- mu«t mill auut with thi», that KogUud i^ divided betweao thnre lawi, Wcmmx Uw, Merdjui Uiv, Dmnelaw. We miwt wH m&kc light of the few rarinnoe* between these tbrve Uws wbidi art* f'xpnfMly ni>tice<l by the books. If in the eleventh cctntmy n iiiiddk' tlngor in niurr t-nluftblt* than a Ant finger lunoiig tile men of the Daeclaw and lew valuable among the nco of Wemox, herp i:* a dinVn^nc*' whirh wonld hato ite equiralent in madeni Euglnjid if ibe law uf Loncaahiro difTurcd from tJke Uw of Yorkshire about the negotiable qualities of a bill of exchange, a difference friiitfiil of knotty pniblema. The faiw nf Hereffjrdiihin*. on «cttlr<l by Earl William FitiOmbora. wm that no knight nhould have to pay more than seven Hhilliaip for any offence*. Becket aawrted even in the king's court that the biraviust ameroemeat known to Kentiah law wa» forty ohiUings'. But the country was beeoming ofrTerwd with snaU oourta; every one who oonld was anjuiring or aiaumlag JoA* and Joftia The courts rooe one above the other; the tribal ettstouid were breaking up into multitudtuuos ruflttjme. This introduced new eomplcxitiea We can see thai for the writer of the Ltgn Ilmrici the grand oentral pmUou of Um Uw is the queotion. Who in the myriad of possible cmos has soias and sofo. the right to bold a eourt fiir the oAsoder and to pocket the proBta of jurisdiction t The cUims of the ktnl«^ the claims of the church, the clsims of the king an addii^ to tha number of the variooa fines and mulda tliat can be eiacted, and are often at variaucu with each other. Let na sappooe that a man learned in the Uw is aakad to advise npoD a oaa» uf bomUide. Godwin and Roger met awl qaamDed. and Oodwm f4ew Roger. What must be paid ; hf whom ; to whom f jurist is not vary cmrefal about thoae payducal efamewls of oMe which might tnlarast no, bot on tha dber baad h« nqoiraa information about a vast nvmbar of paitiimkrs wbieb woaM
1 Win. Mslw. Omam %<t»m, it. alt.
rusOataa** rab MfB pntoiM.
" Wm. VlM<flM|*M (Malwiato tw Ufa af
Mjvtkal la kii««a^
CB, IV,] Entjland under the. N^oi^ian Kings, 107
I seem to UB trivial. He can not bygin to cast up his sum until
^M hthas before him some such staternent bs this: — Godwin was a
H free r^eorl of the Abbot t>f Ely : Roger, the sod of a Norman
^r totber, wca bom in England of an English mother and was a
vsTasfior of Count Alan : the deed was done on the Monday
after Septuagesima, in the county of Cambridge, on a road
Thich ran between the land which Gerard a Norman knight
beW of Count Eustace and the land of the Bishop of Lincoln :
thia road was not one of the king's highways : Godwin was
led by tbt neighbours into the county of Himtingdon and
d on the land of the Abbot of Barasey : Roger, when the
eGCOtmter took place, was on hia way to the hundred moot : he
ham loft, a widlow, a paternal uncle and a maternal aunt. As a
niatt-er of fact, the result will probably be that Godwin, unable
to Kotisfy the Tarioua claims to which bis deed has given rise,
will be hanged or mutilated. Thi.s, however^ is but a slovenly,
prai^tical solution of the nice problem, and even if he be hanged,
then) may be a severe struggle over such poor chattels as he
llful The old law consiated very largely of rule3 about these
matters; but it is falling to pieces under the pressure of those
new Dlenientis which feudalism has brought with it. For a
tS} while there must be chaos and ' unlaw' ; every lord may assume
what jurisdictional powers he pleases and will be able to find in
the complicated tangle of rules some plausible excuse for the
assnmption. The Normans, hallowed and lay, have thrown
themselves with all their native ardour into the warfare of
litigation and chicane over rights which have old English
names; 'nnlluH ctericus nisi causidicusV
Only to one quarter can we look hopefully. Above all Coatom <a local cuatoms rose the custom of the klBg*8 court, ' the tr6M6Il- conrt!"** dona emp'*^ pf In'ng^ly mnjof^fj*^ Of the law that this court administered we know Uttle, only we may guess that in a
1 Tbii famoQB phrkie comes from a rhetorical passage in which William of MalmMbniy is describing the days of Bnfus; Gesta Begam, ii. 369: ' Nullus diTes nin nnmmolarins, noUus clericns nisi cansidions, nallua presbyter nisi, at Terbo panun Latino ntar, flrmarios.' He has jast called Rannlf Flambard 'ioTictos caosidicas.' But, as noticed above, these eautidiet were not all of French race.
' Leg. Hasr. 9 19: 'Legis enim Angliae trina eat partitio; et ad eandem distantiam sapenant regis placita ooriae, qaae nsas et oonsaetndines suae una semper immobilitate serrat abique.' Ibid. 6 § 2 : ' Legis etiam Anglieae trina eat partitio... pra«ter hoc tremendom regiae maiestatis titialamos (7) imperiom.'
108 England under the Gorman Kings, [ax.
wing J
re M^l
^^ ' I
il
leiwe it woA o^uity mther (hui strict kw. On th«>' le ttand, thu rri^iil tribunal auinot have held ilaelf atnutly uml hy ihf old Englixh law ; thu men who wl in it won fiieliiiiuii, (vw iif whuni cuuld tiiidcnuuid a word of EngUih. Ofa the uthM- hoiid. it lopnt ofUn have hiippvncd that Ukc tridilional Nnrman rnstomA would not cnrot the facU, fttr umiao cuuul and n Nortnnu bishop wouli] bu qtmnvUilig ovkr the citlcM or Lhuir English anUetuorut, and prodneiiig K^^linh lai)ddMK>ka Bc«id««. lb« king did not hmmui i gland should hf anothflr Nommndj; be maani to have t all tho rightit that bi» cottsin and prodee«Mor bad e^jo; e jan»pmtU.urv of hi» court, if w« may uaa ao gnnd a wwt uf iiiHX'tnity a ficxibU*. oocomonal jurisprudaim, ing wiUi an utiproced(.'nU.-d Ntatc of nflain, meeliiig new
by new fxpodiuota, waverinft '^ wavered the balance er between him and hiM baroiu, capabh? uf noetvi pnarioM from withuut, iiiHucnced by the growth ot Uw, influenced porhi^ by Lombard learning, modem in tbe mid«t of antique surruundinga. In retncpect it would appear to a ata teaman of Hear)' IL's day aa •oroclhioft eo unlike the ta^ Sadwardi, that it must be pciinoanoad diitinetively un- KogliMh and theirforo distinctively Norman, and Nonaaa in a t^fl •eOM it was'. It wan not a jnivpnidanoe that bad beaa tmnsplanted fn>m Normandy ; but it had ba«i developed by a oitort compoM^ of Frenchmen to meet oaaee in which Pnoielt- men were coucvmod ; tbe languaj^ in which ntcn Rpoko it waa Fivneh ; and in the end, m fiu- aa it donlt with mondy private right*, it would cloeely rowmble a Fronch cowlMift
The futtim wafl to make tbe jurijqinidinwe of the kin^i aOBlt by Tar the mo< important element in the law of KnglaiMi' but we can honlly say that it was this during tbe nngna of the Nomian kingK In the main that court waa a oowt only fur the great nn^n and the grvat CBoa«». Jl is tnia that tbeee (brrign kings did not allow their justiexary powers to be IhaiVed by any nf thove hi.'dgua which might bare grown up in unoonquered coanti^* and omfined the noope of royal jtntace
> Dikkvu. in. i.a.i«i: 'Bn WniiiMaa. iImiiU fori win^ l««lbsa«w wtiiw. PrafHwlM Igtlar li«Aw Ai^ uiputitom Mcesi iMasliaaMB, boa tal Mtirfkji, <wirfiai n^Mhatii, ^Miriaai saiva ipf i>sii». iQw XmmHm li«H, fOH U ffvd lasM liliiilili II vftMsBtar. UimH.
1
at
m
4
ca. IV.] England under the Norman Kings.' 109
I. wrtAUi particular fields. The list of the ' pleaa of the crown ' was Uoufj,di«ordii-rly. eluiitic'; tlip king could send a trusted baron or Iprelaite to preside in the county courts ; he could evoke causes into his own court*. But evucatory writs must be paid for and they were not to be had as niattera o( courae. Th^ lociU jWirt*. communal and seignorial, were the orflioary tribunals /fir oniiJiary causes: the king's justice was still extraordinary, / uul even the pleas of the crown wet* for the more part heard by u i tlio fiheriffs in thc' shireraoots'. Then, again, the king's court was V I not in peraxauent session. Under the two Williams the name wrw Regis seems to be borue only by those great assemblages tbat collect roiind the king thrice a year when he wears his ^^*l] crown. It was in such assemblages tbat the king's justice was lione under hia own eye, and no doubt he hafl his way ; stilli it wii^ iH»t fot hiin to make the judgments of his court*. Under Ueaiy J, something that is raore like a penisanent tribunal, a group of justiciarH presided over by a chief justiciar, becomes npp&inent. Twice a year this group, taking the name of 'the exchet|Uer/ sat runnd the chequered table, received the royal rcvctioe, audited the sheriffs aceoimts and did incidental jtutioe. From time t-o time same of its members would be Jwnt through the counties to hear the pleas of the crown, and litigants who were great men began to find it worth their while to .bring their cases before this powerful tribunal. We can not say that these justiciars were professionally learned in English law ; but the king chose for the work trusty barcma and able clerks, and some of these derks^ beside having long i^xperience as fmauciera and administrators, must have had a
> Leg. Hetur. o. 10.
* Early iiutuioefl of the king's mitn presiding in the local oourts are these :— the Bubop of CSootanoes presides at the famous session on Penenden Heath : Plae. Anglo-Norm. p. 7; he and others preside over the ooun^ court of Worcestershire: Ibid. p. 17; he and others preside over a combined moot of the eastern ooDDties; Ibid. p. 24; Lanfranu presides at Bary over a combined moot of nine shires: Memorials of 8*. Edmand'a Abbey, i. 65. The payments * pro recto ' recorded on the Pipe Boll of Henry I. were probably payments made for erocatory vrits ; see Plao. Anglo-Norm. 140-2,
> Apparently as a general rule the sherifts hear the pleas of the crown, bat the profits go to the king and are not, unless some special compact has been made, oovered by the ferms of the connties; Leg. Henr. c. 10 % 3.
* ETen Bnfiis in his rage respects this rule. Anselm is before the court; the magnates are reluctant to condemn him. ' Take heed to yoarselTes,' cries the king, 'for by God's face if you will not condemn him as I wish, I will oondemn you.' Eadmer, Hist. Nov. 62.
no England under Oic Norman Kinga, [bk. I.
tincture of the new canonicnl jurisprudence'. But, fur alt this, when Henry died little had yet been done towards centreing the whole work of justice in une small body uf learned men. And then a disputed succession to the throne, a quarrel between the king^ and the officers of his exchetjuer, could impair, or fur a while destroy, all such concentration as there was. In the woful days of Stephen, the future of English law looks very uncertain. If English law survives at all, it may break into a hundred local customs, and if it docs so, the ultimate triumph of Roman law is assured*.
> W« luTt a life-Iika, though perhaps not an impartial, report of the trial of William of B'. Calais, biHhop of Darhaio. There ii a kaan argument betwfvn the defendant, who knowi bia canon law. and Lanfranc, the great Lombardist, who preaidM oTer the coart ; tat the barona are not lilenl, and Unffb de Beaomont giTce judgment. See Ujrmeon of Durham, i. 170. A little later Biithop William take* a leading part in what may perhape be called the trial of Anietm ; Eadmer, Hist. Nov. 60-3.
* As to the king's court and eichequer, see Stnbba, Const. Hilt. e. li., and Oneiet, (icecbicbte, 1 10.
CHAPTER V,
HOMAN AND CANON LAW,
>.89:
ly any imse tbe rcgtomfinn of order after the anarchy of '^nfl'^'*" of
It- II ■ It _ . EriRliJtlli
ihens reign and the accession t-o the throne of a pnuce mtii who would treat England as the buttress of a continental n„,i canon frmpii-e must have induced a critical period in the history of English law. But we must add that in any case the inirtdle of the twelfth century would have been criticRl, Even had Harold hotd his own, had hia sons an<J grandsons succeeded him as peaceful and conservative English kings, their rule must have come into contact with the claims of the cosmo- politan but Roman church, and must have been, influenced, if only in the way of repulsion, by the growth of the civil and canon law. Of all the centuries the twelfth is the most legal. In no other age, since the classical days of Roman law, has so large a part of the sum total of intellectual endeavour been devoted to jurisprudence.
We have told above how Imerius taught at Bologna\ Very ^*"™' **' soon a school had formed itself around his successors. The fame law. of 'the four doctors,' Bulganis, Martinus, Jacobus, Hugo, had gone out into all lands ; the works of Flacentinus were copied at Peterborough. From every comer of Western Europe students flocked to Italy. It was as if a new gospel had been revealed. Before the end of the century complaints were loud that theology was neglected, that the liberal arts were despised, that Seius and Titius had driven Aristotle and Plato from the schools, that men would learn law and nothing but
1 See above, p. 23.
^'
112
Roman and Canon Law.
[bk. u
Inw*. This entbttidAttn fur tbo new leaniiug was not aooa MfM^t; it WAA not apent until in the midtllo of ihi< thirtn*nth wntnry Accuniiu hiul summt*(] up iu resulta iu tbo GlitMmt Ordimtria Had Ako of Bulogna hftd taught Bnw-ton what • Uw<book fihould be.
jT Tbf* keenrat miiula of the ago had Mt to work oa lb«
JclttmiciU llowati texta aod they wore inspired by a gvouiutt
\love of knowledge. Still they were fiir from r^[arding tht*ir
»tudy ftA mere historicAl research; indeed for a oritieal exami*
nation of ancieoL history they were but ill prepared. The
*^ Roman Inw wa» for them living law. It* claim lo live and
role WAA intimately cormi-rt^il with tli tku^ of the
empire. A viut part, if not the whole, i \-iESe3~world l*.
owed obedience to the Caesar fur the time being. The Oennao
Henriea and Frederickfi wore the HueceaaotB of AngmlM wad
the Antonintsfl; ttie bwii of thnir ane«itotii bail ocit Immi t*»
pealad and therefore werv iu force. Even in ihoM kingdanM
in which it was impo«abl« lo prta the cUims of a Uermaa
priooe, tb« king might thooreticmlly bo r(^;anJ«d an holdti^
the plaor of an nmp«'rur Our own Honry I. w** bo not
Gloriuvuv Cacakr Henricua'? But. Ruch the<inia apart, tbo
fHoman law demanded revervnoo, if not obedivDos, aa tbo doc
\^f ito uwn intriuaic merita. It w«a divindy raaaonafakk
OnntboT I Another body of juHspmdcnop waa coming into ben^
*' Fnifii humble beginiiiuKn ths canon Inw liad grown into a
uiigbly system. Ainmdy it iwrrtod iia right lo ataad baade
or aImivu the dvil law. Tho dril taw might bv the law td
«arth. I'uj soli; bviv wa* the law of hcavi^n. ims piAi, The lim«
bad DOW otime when thv Hildebrendintt pii|»cy niuld iaaul
that, Kubject to nnall Tarialiunii, thu nnivonad church had a
common Uw. Many men hwl biv*n endnavuurtng Iu mtmUt tbal
law. but tho fiuno of earlier labuurvrs wati odipaed by Ifaal of {p.
^^mlian*. A roimk of Bologna, that dty which waa the centiv of
the new aecular juri»pnulence, he pfiblisbcd between lb« yean
U89 and 1142 ilhe wurk naed Iu be aacribsl lo a aoaiewlMU
later date) a book which bo ealled Comewrdm dueordoaHmm
oarumum, but which waa aocn to hTTr*nrff fur all mankind aim
1 Bm lfa> piiw ttdkctod hj Helkad. R. H. & *i. ll7-«. ■QMJripartili.p. lO; La«. BMr.pnltea. ' Par lb* nwuw atf iliit ftn^ffk, m» tdiaTM,
I
CH. Vi] Monian and Canon Law. 113
the Dwretwm Gratiani, or yet more simply the BeoreiujnK It t
Pis n grwit law-book. The* spint wMcli animated its author wasT"^ not that uf a theologian, not that of an ecclesiastical ruler, but that of a lawyer. One large section, of hiB work is taken up
^with the discussion of hypothetical cases {cawtae) ; he states the tanoUs ijuestions of law (f^tcaestiones) that are involved in these caBBBt be endeavours to answer the questions by sorting and weighing the various * authorities* (to use our English word) which bear upon them. These authorities consist of canons n«w and old, decretals new and old, including of course the Isidoiian forgeries, principles of Romati law, passaged from the fathers and the Bible. The Decretum soon beuame an atithori- (otivc text-book and the canonist seldom went behind it. All Ae i^ame, it never became 'enacted law.' The cauotiiijt had for it rather that reverence which English lawyers have paid to Coke upon Littleton than that utter submission which is due to every clause of a statute. A sure base had now been foujid for the new science. Gratian became the master of a school, a echool of lawyers well grounded in Roman law, raany of thwa doctors ■utrtttsque iuris, who brought to bear upon the Decretum and the subsequent, decretals the same methods that they employed upon Coi:ie and Digest. Legists and decretists alike looked to Italy for their teachers ; but the papal system was even more cosmopolitan than the imperial ; the sway of the Roman church was wider than that of the Roman empire. Gratian, Bufinus, Johannes Faventinus, Pillius, Hostiensis — these names we read in English books, to say nothing of those great canonists who attain to the papal throne, of Alexander III. and Innocent HI., Gregory IX. and Innocent IV.
Gratian had collected decretals down to the year 1139. The Bat the time had now come when the popes were beginning to *^ pour out decretals for the whole of western Christendom in >.9S] great abundance. Under Alexander III. and Innocent III. the flow was rapid indeed. From time to time compilations of these were made (compilationes antiquae) and Englishmen in Italy took part in this work'; but they were all set aside by a grand collection published by Gregory IX. in 1234. Jhis was
> A« to the date, tee Scholte, i. 48.
' Scholte, i. 84, 85, 86, 167-9. Among the compilations which have been preeerred are those of Alao and Oilbert, who seem to have been Englishmen, and that of Johannes Walensis, i.e. John the Welshman.
P. M. I. 8
m
Moman and Octnon Law.
Tb*
an authnritntivc ntntnte book ; all the ducrotJLU of » gviuiml impart thnt hud iiul bpvu n-cvivcd into it wen UMnbjr rapaalod. and evurjr auotuncu that it contaiucd wm U«. It eompciMd fire booka In \t9H Br.nifocc Vin. added to these the * Seit; the Liber Scxtiu, a collection of tlitnap decrctab iitfiiiefl idncv Um Orrj^irian crHliHoation, which wtfo to be in fbrou for the ftitoi% Aiinther oolK>ction of dt'cretaln known as the Olemanttiie* (tbey had proceeded from Clement V.) waa addtxl in 1317, and in lAOO the OorpiiH Turifl Canonici waa complttt*^ by yet naotfter oal- ImUou — this had no ttatutoiy authurity — known •■ the ExImf ragants; but by this time canon law hail eeeu tta b«M daym. We mu«t yet say a few more word* of ju Tigoroua maturity*.
It waa a wondarfa^ ^yt^m Tht,' whoU of weatwn Eanjpe wtm anbieot to the inrifldictioo of one tribanal of Utt n-x ti, the Roinnn rnria. Appcaln to it wen enoournged by all manner fi4^ muons, appi-als ut almuat every itage of aluiMt evuiy |ico- oeeding'. But tht> (inpe was fiur more than the prandcnt of a court of appeal Verr fr«|[nently the ooarta CfhPBtifiP FtM^ did jurtioe in England ware eottrta which were actiny under hia ■apcrnrion and oarrying out hie written initructiopg. A reijr large part, uid by &v tbe moat pemuenUy important parts of tin eDclMi>»lioil litigatioD that went oo iD Ihis oooatty* eMBU before Englieh pfelatoa who were ttttiiig, not tm ^ojfiA prektea, not a« * judgea oidinaiy.' but at mere ddeyyataa of the ^|ippf <Y«nm^ffpj*.^-^ to hear and detennint^tWnr ihel parti- 1»i cttlar caae'^ When oooe the aopreme puoLtff haa obtained HiMii of a eaow, that ctiiae prooeeds under h» dinsetieaa. He lnd« two or thn*e KngliNh in'Utee try it, but he abo tdb them by what nilea thuy are Ui try it, he Itncbee Lheu, oonecta tbam, reprovet them, ezprcnet in a fiitherly way hb wrpriaa at their ignonuwe of law. Very many of the deervtak ai*
■ It nuf b* ««ll 10 nylfela Uwi «fM Un mm$Otllam ut Omdmli «Mk. tta dMNtok mk MaailaaA la li »«• kaowa m i^trtftm ■■wep^^iHi, L*. fmat w»§*hamhir twtm itmlmti. Bn« altar Uwy kad kmm ■riUital I7 Owgwy tiuTf van eUad m Kj>tna or X. TbM Mjirt it rtttnftU i. cs p«n«. or e. t- JC •k ratrift, 1. 1. U a ffttww lo Um QraRuclM oaUwii«a. TW Ina te 1 lokjrlan-i tht CTioiollnM fcjr Chm.\ Um «ullitsllaa oT S«ttBfe«H la IMM aaniiiai paiflr fl( Bitoav^ulM Mmb^ XXU (frtwi. Jtk. partl7 of RxWwrapurtM Cammomm (Jjaai. rimm).
■ «• tpmk uf ihm wtaai* of tlw ivOflh entwy: Wbm to «< feyia par«fd*« Uutt limtt* ohmi W m4 to Ik* Ml"**-
• KaHkad, Caoaa Um ia KMhukli K. H. ■. ««L tk
ca. v.] Roman and Canon Law, 115
mandates issued to these judges delegate, luandaU-s which deal with particular oases. Others are answers to questions of law addreas'xl to the pojie by English or other preUites. These tuandatea and these answers were of iin|JortaDce, not merely to the parties immediately concerned, but bo all the &ithful, for the canonist would treat as law in other cases the nilm that were thusi laid down. His science v/aa to a great d^rae a science of ' corq law/ and yet not of case law as we now understand it, tor the ' dicta' rather than the ' decisions ' of the popes were law; indeed when the decretalM were collected, lh« particular fact* of the cases to which they had reference. th« tptcka /ttcti, were usuaEly omitted aa of no v^aliae. The pope enjoyed a power of declaring- law to which but wide and rague Umite could be set. Each separate church might hate its ciartoms, but there was a iua commune, a common law. of the utiiveraal church. In tlie view of the canonist, any special niles of the church of England have hardly a wider Efcupe, hardly a leas dependent place, than have the cnstoms of Kent or the by-laws of LtHidnn in the eye of the Enj^lish lawyer', Duriug the time with which we are now dealing, the twelfth and ihirteeuth centuries, no English canonist attempts to write
^ rfowQ the law ol the bingliwh church, for the Enj^liah church
has very little law save the law ot the church Catholic and
.jKt'nian. When in tho next centui-y John de Athona wrote a
oommentary on the constitutions made by certain papal legates
[p.9&] in England, he treated them as part and parcel of a system which was only English because it was universal, and brought to bear upon them the expositions of the great foreign doctors, Hostiensis, Durandus and the rest. On the other hand, a large portion of this universal system was in one sense specifically English. England seems to have supplied the Roman curia with i»Ti flmftunt of li^^iyation far larger than that which the mere size or wealth of our country would have led us to expect. Open the Gregorian collection where we will, we see the pope declaring law for EIngli8h cases. The title De filiia preahy- terorum ordinandis vel non has eighteen chapters ; nine of these are addressed to English prelates. The title De iure patro- wUus has thirty-one chapters and at least fifteen of them are in this sense English. But if an English advocate made his
1 Thia point hu been argaed at Ipngth in E. H. B. xi. 446, 641.
8—2
116
in €tnd Ccuwn Law,
[bk. I.
to
way to Rome, ho wait like to be told by the pcifn thiU hii doctrine van the pn)dact of EiigliMh bt>rr, nixl might aury homo with him a rvMcript which would givv thi- tln^fliith bi«bu|« u souud lc««un in the taw of prvacriptioii'. oi The relation betwetii the two groat syfttenu was in tbi twelllh oentaiy very doae. Tb« canon law had bocrowvd it funu, iia language, ita spirit, and nuuiy ii lunxim from tbe dril law. Of course, however, it had Ui deal with nuinv imoilutinoaj which hfu] never coma within the kt-n of the charical Roman lawyera. ur had bcwn treated by them in a manner which ib«j church could not approvu. *OatM, for eiampli?. the law ^royriage _fln*l dirnrrr. a Inpjr ahir^^ ***" ^h""-h hftd nmdp hrr own, had to ba ruw^^fin. Somv clMuenta which wc may call IMnnaoic had made tbeir way into tbe worlwiartiffal qmtMn; in penal cnuMM the proof by conipurgaLiun was ailctpiod. and. wherever tbe lestamenUkry rxecuUir may ooma from, bo doea not come from tbc Roman law. Still the canoniat'a debt Iv tbe civilian was heavy; he had borrowed, for inslAuoe, ibej gnsat<T part of hia biw of procedure, and he waa ever rea^T •kc out (jmtiaii by an nppe«l to JuatiniaiL In Bidbard L'l dfty the monbi of Canterbur}' went to law with the arcbbiibi^;. a itat4?mcnt of their oaac has oome down to us; probably it waa drawn up by lome Italian ; it oontaina eighty cilatiuna of Um Oeerotum. forty of the Uigt-at. thirty of tbe Code. The wuriai of tbe claakioal Roman juriatn were ranaaeked to prove tW the archbiahop'fi projaoted oollege of caoona would be an injury Co bis cathedml monastery'. In the tbirteeulb century ih» canon law began to think that she cuuM shift for befself aikd to give betwlf ain of superiority. The btsbops of Rotne bsgan to diacoufsge a qrstem which had only too macb to asy abottt the gmndenr of emperon and hanlly a wocd nf popoa. If they couU have had tbeir way, the civil Uw would have been bat the modest handmaid of thu canon taw*. But in tbe days ef our King Stopben the imperial mother and her pepel dangbter wen Curly giKMl fripnda. It was band io band that tbej entered EngUnd.
I Cliraa.A»k4* BimIbiii, p, IW: ' f alar ■wrt> aoi JIII In i la «l IwM «■! opinio Biialrtiuwii nwlroffaai. foai mtm mtnit fnmutfUm ian tylMoyln ' Sf dooUaa* |Mfa, ' Cm«i rt n m nt^tmti uii MMab fc invUb AngUmi* ttuAAa luce dlAeMb.* 1W m«I| k bwA to
p.am. •flHkabv.p.ii
CH. v.] Roman and Canon Law. 117
^'^ The history of law in England, and even the history of Boai*ii wirt W^pg^lish law, could not but be influenced by them. Their inwm action, however, hardly becomes visible until the middle of the "* "" * twelfth century is at hand. If the compiler of the Leges Henrici adopts a sentence which can be ultimately traced to the Theodosiim Code through epitomes and interpretations, if the compiler of the Lets Williams seems to have heard a few Roiaan maiims, all this belongs to the pre-scientific era'. If William of Malmesbuiy, when copying a history of the Bomfin emperors, iutrtiduces into his work a version of the Breviiiiy of Alaric, he is playing the part of the historian, not of thu jurist'. It is remarkable enough that within a century after Lunfranc's death, within much less than a century after tbo d«ath of Irnerius, a well-informed Norman abbot aacHbod to th«m jointly the credit of discoTering Justinian's books at Bologna^ The story is untrue. f>r Lanfranc had left Italy iong before Imerius began to teach ; still his name would never have been coupled with that of Imerius had he known no Roman
Cf-*'! law. Lanfranc*!* pupil Ivq of Chartres, the great canonist, knew much Roman law* and becomes of importance in English history; it was bis legal nnnd that schemed the concordat beiweeu
^ Henry I. and Anselm'. More to the point is it that from Burcbard of Worms or some other canonist the author of our Leges Henrici had borrowed many a passage while as yet the Lhcretum Oratiani was unwritten. Yet more to the point, that already in the reign of Rufus, William of St Calais, bishop of Durham, when accused of treason in the king's court, shows that he has the Fseudo-Isidorian doctrines at his fingers' ends, demands a canonical tribunal, formally pleads an exceptw spolii, appeals to Rome, and even — for so it would seem — brings a book of canon law into court'. When Stephen made his ill-
1 See aboTe, pp. 100, lOS.
* Malmeebnry'a ooimezioQ with this work is disouBsed by Dr Stnbbs in his iDtrodnetion to the Oesta Begum, i. oxzxi ft. The work itself is described by Hiiwl, Lex Rotaaua Visigothonim, p. Iv. See aUo Conrat, Oeechiohte der QoeUm dm R. B., i. 282.
' See above, p. 78.
* Bob. de Torigny, p. 100 ; Savigny, Oesohiohte, cap. 15, g 106 ; Conrat, ' Oeecbiehte, i. 378.
* Liebenoann, Anselm tod Canterbury, p. 41. ■ HonastieoD, i. 244-260: 'ChristiaQam legem qaam hie ecriptam habeo
teaton inToeo.'
r
■dvued Attack oo Rogvr of Salubuiy wkI the utber bUhopi, oncb more the 0n0fitio apolii waa plouled, agiuo ih« dvouutd lior tk oaiumioal tribaakl wm arged. uiH the king binadf appealed to the pope'. The time when (iratian waa at trorfc on tho ])«crvLiiu, wbeu the four doctors were flouriihing at Bol'ifi^a. WAS A time at which ihe Enjiflinh kifi}( hadoome mto violuDt cuUiidoD with the prelate* of the church, and Ihcwa prelatea were but ill a(p*ocd amoug thftiukolvt^ TieartH, At tbia time it waa that Arcbbi«hiip Theobald, at the
instance pei4iapn of htfl clrrk Thotnaa, — Thomas who was himself to be chaiin*lli>r, archbUhop and mart%T, — Thomas who had studied law nt BajKjf^tm uwl had sat. it niaj bo. at thi* Ufl of (Jmtinii* — inipi>rt«l fr<im Italj on«* Vacarius*. The little thnt wu kuuw uf Ium Miflv lift- soems lo puini to Uantua as hifi home and a iiliort txact oo Lombanl law has bean •serib«d to him. It in not iialikoljr that TheobaM aTail*^} hitaadf of thi? help of thin trained legist in his stniggle with f-* Stephen's brother, Hittry bishop of Winchester, wbo, to the pffjiiilicc of the rights of Canlvrbury. had <^»tainr>d the oAoe of pa|ial legate. That Vacarius uught Roman law in England ihare can be oo doubt ; a body of stiulents looked op tji him as their mtvfUUr and rovvrcntly roci-ivej bis gioaes*. That be taught in the archbishtip'* hou^vhotd. which waa fiill of mca who were to becumt* illuntriouii in church luid <tLat«, is highly prubablc That bu also taught at Oxford, where a achtul just beginoiiiig to form iisalf, is not so plain, bnt in by one who ought not to have made a misuka abovt swh a matter*. Thnt 8t4<phen endeavoniwd lo ailsaee him and lo
■ Wmka of Msliswlilllj. QmU B«aai. U. AU. Tba ksaM m9%, 'Bm baVN kflial qne4 cliaB 1b tewMfte» taikiii MUm 1 twi. at i i i wltal fptetoros da i«ta* nU i aUoqaUi hn* n^Hmm itliwiilil aae phiHalsat' 1W Uat^i s{iyi«sl 0««a» •■ ib« B«u fMS- AatoUwumnMi^elB— litwiM DUfhsa sad llslCMa. ms Jkiead, Owffit; 4* MMia«vflla^ «M *.
■ Wnil&m Fin Ifhi. VrtiritU lor life «( HmI*, OL IT.
* TbumM* MCf«% ta thU aistUr u m^Am ynthMm hj 0«rtM« «f OBaSir> tei7. U. SS4. Thte ft^yt. ix^ihw mUh IW vopd* dT «alw« «( T^s^a; (»L Bowku), p. IM. aai o< ioha of SaUikar. y^fiiaUisi. lih. vtfL apL tt, soolitaH awtt what ii kaova el tte lipal mnm U TaiMtai Am pmb^m Bf* SDBwnteallj wUmImI by tiallaad. ColUc^Ma of OilBf4 PliHilial SmM/. U. in. la 19N Iba «bol* clot? of VMariot ««■ rel oa s ■«« faoUa* ly LMNnBMB.E. ait. 11.806. SI A. W< adsiS Uk laHllL
• WMWk. SUflMw VwMiu. ^ IH^
■ Ofraai of QuMvtarx. to. mi. t Ut/mmmK K- O. K. tL ■• Vatnnlita, U. BUS.
CH. T.] ^cman and Coinoii Law. 1 1 9
extirpate the books of civil and canon law w© are told upon giDodi authority^ We are told also, and may well believe, that the royal edict was ineffectual. Further, we know that VacamiES^^ wr&te a book and have some reason for ascribing this to the year ll+y i he wrote it for th& use of poor students who could not afford to purchase the Roman texts. That book still existSy It might he described an a. condensed version of Justinian's / Code illustrated by large extracts from the Digest^'. It is a thoroughly acadeniic book, as purely academio as would be any lectures on Konian law delivered now~a-days id an English aniversily. Id what of it has been printed we can see no practical hiut», no allusions to English affairs^ Besides this, we have from Vacarius a christologiual pamphlet on the assutnp- |i liun of the manhood, and a little tract on the law of marriage
f in which he appears aa au acute critic of the mischievous doctrine which the canouiets and divines were evolving*. ^^•j Unless he had a namesake, he spent the rest of a long life in Eugland, held some preferment in the northern province, was attached to Becket'a rival, Archbishap Roger of York, and Acted as Roger's compurgator when a charge of conipHeity in the murder of St Thomaa was to be disproved". We do uot know that he took any part in the controversy between Henry and Becket ; if he did, we must look for him rather among the king's than among the archbishop's legal advisers. Perhaps he lived until 1198 or 1200'; if so, he must have been a very young man when Theobald fetched him from Italy'.
> Joh. Sftliib. Pol;oi. loc. dt. ThU matter is disoassed by Weaok, pp. 28-41. Lifibennum, E. H. B. xi. aiO,
■ lATge portions of the work were published in 1820 by Wenok, Mapster Vaeuiai (Leipsig). Ssvigny diBonsaes it, Oesohichte, cap. 23, § 174 ; cap. 86, 1 134. There is a va. of it at Worcester, of which no foU aoconnt has yet been giTen.
' There i« jost enoogh to show that some of those who glossed the work had English eases in their minds; e.g. Wenok, p. 189 : 'Argomentmn pro decano EboiaoensL*
* Maitland, liagistri Vacarii Somma de Matrimonio, L. Q. B. 1897.
* Liebemiann, E. H. B. xl. 312-4. Add to the references there given : Jessopp, E. H. B. zi. 747; Historians of the Church of York, iii. 81.
* Hoveden, ir. 7S, and the note by Stabbs.
' In general aa to Vacarios see Wenck's book ; Stubbs, Const. Hist. § 147 ; Stabbs, Leotores, 120, 137, 141, 301-3 ; HoUand, E. H. B. vi. 24^-4 ; Bashdall, Universities, ii. S35 ; Liebermann, E. H. B. xi. 805, 514.
120
Ronmn and CVirwn Law.
[BK.
FVom St«phea'a reign cmwiirdi. the proob thai Bocmui and i^ml^~^^>uaiim law are being studied in England beoome mora freqnmC The letton rt{ ArchbiHhop Theobald's Merretary, John of Sali^ bur)-, Lhu forvuwwl Hcbular uf Uio age, arv full of aUoMooa to both lam; nuuiy of these oocor in relation to Engtiib eoolanaitical law-«ait« of which John ui fonronltnf^ rvporta
/ to tho pop*. In hin Poljfcratitms ho baa givun a kketoh of j/^vil jirocrdurt! which drew high praim from SftngayV Th« DpisllM affcribed to Pl'Iit of Bloia, arehdoaooD of Bath and of London, arc stuffed with juristic oonccitn. Giraldui GunbrvuM in by way of InrnouLing that Ut«*jmtar« iji being oblitvralad hj law, while slndenU uf juriifprudpnctf neglect ita vltmaDta*. Maxima out of tha liitutttt«i or ih* I>ig«M baooma part of th« fftook in trade of the poKta letter writsr, the moralwt. and [^ < the historian. Uanuncript* «rv being copied. Abbot Benedfcet of P«t«rborough hait in hi« tDooaiteiy the whole Cor^MW /«r^ Oiviiu in two votttmefi, beniden vanoun parts of it, the Samim of PlaccDtinuft and the Summa — this, it u said, may bo iha work of a Norman or an Englishman — that is known as (Aim ; he has also the Decrutum, n collMrtion of Decretals and the canonical text-books of KuiinuH and Johannes KavtsitiDtte*. Thomas of Marlborough, who became monk, prior, abbot at Bveehnm, bad tntighL law at Oxfonl an«l. fur so it woatd eeeoi, •t Extter, ami he bn>ught «i*ith him to his mooMtety «
JXllleetioo uf books tUritu^t tirrif*. It is phiin thsl a
I fiouriHhing school uf Roman and oanoD Uw hail grown up
I at Oxford-
^ Bat the Italians hod been firvt in the field and Meilf. maintained their |ir<'-<iiunince. During tlbs rest of th« middh*
' ages hardly a man aci|uirfs tho highest feme m liqpit cr deeretist who is not Italian, if not by birth, at loist fay education. Tho second place muitt be oooeeded to tbe French univwnties; in particular to tlw school of Orlsana. Thrrv •re some eigns of urigiiud work in England Tbe schoUift of Vacarios gIa«Md his gloane. Some manuals of prooadmw
'fliMhlrtii. Mf>lt.tUl. *OpMa.U.He: It. t.7.
* Cla«Dkhseflkib«torSvmnisa.>A.fl^>ifta,|yiM-a. A«taih« calM iMtm (M hi^m 'Olte uJahmm '), «■ CsJBmv. U *au <MI 4sm h»
fnviBOT sup^-aarMsads^ ^ U. 4 Oknm. riMlMM. r- Mr. > BolUaA.aB«.Bkl.lU«.*LMT: BsAm. CsIw^Hm. IL «W>
CH. T".J Roman and Canoii Law. 121
have been preserved which good critics have ascribed to the England or the Normandy of the twelfth century'. Of these
Ptbe most interesting to us is one which has been attributed to no leaa a ma-ii than "William Longchamp. A clerk of Korman race, he becRTiie for some years» as all know, King Eicbard's viceroy and the true mler of England. Even after hi« fall he was still the king's chancellor". Another laix^^r who for u while controls the destiny of our land is Carilinal Guala Bicchicri', but it were needle&s to eay that he wufi no EdgUshmon. Probably that one of our countrymen who g:ains J.KM] imiflt fame io the cosmopolitan attidy is Ricardus Anglicus'. Hf has been eouiewhat h^tily identified with Richard le Foore, wtu became dL'ftn of Salisbury, bishop of Chichester, of Salisbury, of Durham*. In the next century the most pramineut name is that of William of Drogheda, who taught at Oxford and wrote a Sumvia Aurea\ But the Raman Catholicism — w« necti no better term — of the canon law made against the development of national scboola. AH the great cases, the causes cdl^bres, went to H Bome.and the English htiganb, if prudent and wealthy, secured ^ the eervicosof the hesl Italian advocates. In theii" dispute with th€ archbiahop, the monks of Canterbury retain the illustrious PilliuH and the illuHtrioUR Ugolino, who will be Oregoiy IX.' Thomas of Marlborough, prior of Evesham, despite his having
* CftUlemer, op. e'tt. pp. 15-50.
' Caillenwr, op. eit. p. 50, prints the ■ Practica Legnm et Decratornm edita a khgistro W. de Longo Cunpo,' Longchamp's career is deBoribed at length by Stobbi in the Introdactioo to Hoveden, vol. iii. A manual known as the Ordo Indieiarius of the Bamberg us. is attributed to England ; it was published bj Sehalt« in the Proceedings of the Vienna Academy (1872), vol. 70, p. 235.
> Chron. Evesham, p. 191: 'dominnm Qualam ...inter cardinalea in iare dvili peritinimum.'
* Bobnlte, Oesohiohte des oanonisohen Rechts, i. 183 ; Caillemer, op. cit. 88-4 ; Betbmano-Hollweg, Civil Prozess, vi, 105.
* In our fint edition we said that the identification of the bishop with the eaoonist might require reconsideration. See now Mr Blakiston's article Poor. Richard, in Diet. Nat. Biog., which shows that the evidence of identity is very slight. Schulte has collected a few particulars about English students and teachers at Bologna— i. 151, a certain David, canon of 8t Paul's, who was a master there in 1168 or thereabouts— i. 188, Gilbert, Alan, Johannes WalenHis— L 311, Elias Anglicus. As to Master David, some entertaining stories are to be fotmd in Spicilegium Liberiannm, p. 603. For some entries in a Bolognese necrology relating to English masters, see Dublin Review, cxii. 78.
* Schulte, ii, 113 ; Bethmann-HoUweg, Civil Prozess, vi. 123-131 ; Delisle, Litt^iatnre latine, p. 68 ; Maitland, E. H. B. vol. xii.
' Epist. Cantuar. pp. 68, 471, 476, 506.
IvUUoln
^i».
(Alight Uw al Oxfonl. alwoilud ihr l«ctur» nf Axo, ' tnuUr of all th« maatm of Uw/ beforu be tnutvd himBvlf to jitond tb« ouue of his abbey at th«? thrBshohl of ihit ApusLlM*. U waa not ftvoi any English civilian but fruiii Azi* himself that oor Bractun borroved. Henn* III. k«pt in hi« pay H«niy of Saaa, who w«ji going to be cnnlinal bt^hup of Ottta, and who, for all nwo whu nud ihu Uw of the church, will be simply Uott^ntU'. EdwanI 1. hjid Fnuici«cuB Aocunii at hU ndi'*. The great mse* of the profemion ' were beyond the reach of the Boglub- ^man ; ' the Icad^TH of the profeaBion * whnae Uxilu ho had to d. whom) opinioHH ho had to quolo, were Italiana Am to Bomau law, it led to nothing. For n while in their puthnsiaain men might be oontent to study for itn own mkm thU ntouni of hanuui wisdom, of almost iiu|>orfauiiiaD wiadum, so it must have seemed to them. Bnt it soon beoune pUia that in EngUnd tbera would be nu ouurt adiiiiuiHtmng RnoMa .Uw. unluM it were the court of a learned muvtniiy. And lb«ci, as already said, the church, or at any rate a powerful {Mrly in tho English ohiiroh, began to look askance at the ciriliaa. Thivttogy was to bt< protoeted against Uw. fienefioed clerics were no longer t4i atudy tbe secoUr jurisprudence. In kbayiar 12H> Honorius III. forbad that the civil Uw shootil be uugbt iu the iinivonity of Parin*. and when we rend bow in 1284 onr H^-nry III. unUin*'*! that the /f^s* nhould no longer be taugfat ui thf Lioduii schools — probably this refen to the aebouU af 8l Panl's Cathr'lrnl— it is by no means oertain that wa ought doI to connect this with a movomenl in fiivour of eodeasastical reform, rather ihiui with that ' Nolumos legu Aogliiwi mnCarv* which the bfinins were about to utter'. Jilnttht'W Pahs h^
i^>^
I
I
> ChKai.B*sihsm,ni. 117. us. 1S8. tUilWiwaifc wai Is Bili^n Vy iM tMm «r tlM pope OuK>«Mii UL) tod Cm«imJ I^ittaa. B* ia||ijil m ys Bousit MkMw HmmaAm Hlivam. wbo hai migmti tbt U^i ^ lb* On«wterr Moaki. sad Bvtnad. m knigtrt ml Tmrim^ «te h a Msood to BMW bat Aao.
• UftL Ptr. Chraa. ICal. I*. W. BM. Ul-t; ■■helM. a IBt MaitknA. OaaoB La« in Ei^lMa: fi. B. S. <vL liL
« TM* h9 iW ball .<< V"- VntM. if wkfali «««■ par«iaM m to W *m4 ta Iks DMnuW Oratodl. in pwtliakr. il tt, X. Iw «t| Staatt*. '^■miirtiM VahwtMUlu PuulMiii^ L SOl
• Bei.ai9H«a. IILb. l«i BaUia,DlM.sAPhlMi.r.tt». DrIMabW LmIbiw. p. we. iDi«nn(« the 'I^M' of Ihte vtU ss thtmt% U caaoa law i tat mnij ii br nan f««ta% Uh« bu wosl awa, ib»
CB. T.^ Roman and Canon Law.
li)Wn to us what puqmrta to be the text of a papal lUM] bull which goea much i^^^thu^^ InEixjent IV,. perhaps the greatest lawyer among nil tin? po'pKs. m supposed! tu decree in the year 1254 that iu France, Etiglaud, Scotlatid, WsIl^s and Hungry — m short almost everywhure save in Italy acd Ger- many— the imperial laws shall not be read, unless the lyings of thcNse countries will have it otherwise. In those countries, he made to say, the cauges of the laity are decided, not by the .■rial laws, but by oustoms, while- for ecoli5Miastical causes the Qonstitutiona of the holy fathers will suffice. Strong reasous have htniw shown for the condemnation of this woukl-be bull as a forgrry, or as the mauifeato of English divines who will make beli'.-ve that the pope has done what he ought to do*. Genuine or spurious, it is an instructive document, for it tells* us that in Englaud the civiiiau is between two drea. The beat churehmen do ool love him ; ecclesiastical j-eformers are coming to the aid of national conservatism. This did not destroy the study of the Roman books. Oxford and Cambridge gave degrees as well in the civil as in the canon law I The one considerable work pro- du^d by an English canonist of the fourteenth century, the gloss of John de Athona on the legatine constitutions, ia fidl of referenctfs to Code and Digest. But the civilian, if he was not a canonist, had no wide field open to him in England. He might become a diplomatist; there was always a call in the royal chancery for a few men who would be ready to draw up treaties and state-papera touching international affairs, and to meet
which it can be oontratted with ' deoreta ' or ' canones. ' The qaestion why this bolt shoald be Uoncbed against the ' laws ' in London while they are spared at Oxford, is not anlike the mnch disonued question why Honorias strock at the laws in Paris and only in Paris. The answer may be that these London schools were {nimarily theological schools, and that the nniversity of Pahs was the great theologieal school of the world. Or again, it seems possible that Heniy is protecting the Oxford law school against competition. That the 'leges* of this writ mean English law we can not believe ; we shall hear nothing of English law being taught for a long time to oome. See Clark, Cambridge Legal Stodies, p. 40.
1 Uat. Par. Chron. Maj. vi. 293-S.
■ Digard, La papaotfi et I'Stude da droit romain, Bibliothdqne de I'^lcole des chartes, 1890, vol. 51, p. 361. Denifle, Chartolariam Universitatis Parisi- ensis, i. 261, had already questioned the anthenticity of this bull. Perhaps it was originally no worse than an university squib ; however, Matthew Paris believed in it. Blackstone, Comm. i. 20, has strangely misunderstood the drift of this doeumen t.
> Baahdall, Universities, ii. 454 ; Clark, Cambridge Legal Stadies, 42-59.
iureiga Uwyeni on tb»ir own grooDd. Kor miul it bo forgutiett thmt BO long u the Engluih king wms endcaTouring to goveni Giiienne from Wcstiniuiitpr, bt* was obligMl to keep in bifl vtayioy iucq who cuult) whlv tliienlly obuut such romanew]UM inatitutions ns emphyteiuit, 'itctive and paaaive trntamemti /actio ' and the like', for Uuiennc wim in theory a couniiy ot the wrttt4iu law. But exci'pc as a diplumati«t. a cbaiioery 7lork, or a teacher, the eiWIiaD would 6nd little t4i do in. [England. The court of mlmimltj-. thccourtu of the anivondtic*. ,
'H when thiry had oumu into aualeoce, could nut pni?id«< Muploymeut fur many pmetitioiMra.
The biatun* of Romnn ami canon law an studivd aiicl adrainisiervd in Englainl tlfifcrvc« u^ be written at loogtb. W« have laid of it but enough to w.-rvc nur imnMdiftte pur|MM*;j for we have now to not** in the firet plaoo that a large Iraot in tlir firM of law waa made ovtr to tbo aoelMiastical court* and their canonical juricpradenoe. and aeooodlj that thin oaiKmical jnrisprtidence affected the develupmenl of onr Eagliah tem- poral law.
The domarcation of the true pionnoe of eoeleaMuHical bnr wan DO cMjr task : it was not to b« ao«oinpliiihod in EogUad. m Frmoce. in QennaQy, without prolonge<l utruggltia*. The Con-< queror. when he urdaine*! tliat 'the optscDpal laws* wet« aot to be adminiatcred a* of old in the hundred oouita, left naDjr' qiiet^tionfl open. During the finit half of the twelfth ceninrr the claima of the church won gnwii^ and the daijr of oswrting them panaed into tfa* hands of meti who w«r» not nusre theologians but expert lawyers. Thim. ae all know. J came the quarrel between Henry and BfckttC Itt tha QrWisti lution» of Claivndou < I IG4) the king oflartd lo th« prnhf • whtt<'ntrvaty. a treaty which, ao ha aaid, embodied the'ctntoma' uf his anoorton, mora eapeeUlly of hii grandfather. B««kir«,: after aorae hentation, rejected tha cooatitationa The dii^mta waied hot; certain of the cnatomi wen oondemned by ib« pope. The murder followed, and then H«iry wu cxmipelUd to renounce, though in carefully guaided tome, all hi* innora- tioDs*. But bin own nmertioo all along had been thai be
* Bm e^. MflOKnaD^ i* Parihi— rto of n B4wairf I.
ni. au.
* BnuOT.D. 0.0. IM'.PoofBkr.LMottBUlttiMi Manal te taMttallom fraimliM. |i 111 ; IttwcUiw. KliikiiiMkl. v. Alt.
» OMta BmhW (BuadMaM. t Bl.
CH. v.] Romitii and Canon Law. 125
no ionuvalor; and though the honours and dishonours uf the fiunoits contest may be divided, the king was left iu possession
■ of the greater part of the field of battle. At two points he had been beaten : — the clerk suspected of felony could not be sentence by> though he might be accused before, a lay court ; appeals to Rome could not be prohibited> though in pmctice iht' king could, when he chose, do much to impede them. Elsewhere Henry had maintained his gi-ound, and from his time onwards the lay courts, rather than the spiritual, are the yV»] aggreswjrs and the victors in almost every contest, About many particulars we shall have to speak in other parts of our work ; here we may take a brief tiUrvey of the province, the large province, which the courts Christian retain as their own.
The church claims cognizance of a cause for one of two re^ons : — either because the matter in dispute is of an ecclesi- jutical or spiritual kind, or because the persons concerned in it, or Home of them, are specially subject to the ecclesiastical ju^iMJictiou^
I. (a) In the first place, she rlainis an exclusive cognizance ^*'t**f^ of all affairs that can fairly be called matters of ecciesiiistical caiwo- economy, the whole law of ecclesiastical status, the ordination '^'"'''' and degradation of clerks, the consecration of bishops, all purely Bpiritoal functions such as the celebration of divine service, also the regulation of ecclesiastical corporations and the internal administration of their revenues. In this region the one limit set to her claims is the principle asserted by the state that the rights of the patrons {advocati) of churches are temporal rights, that the advowson {advocatio ecclesiae) is temporal property'. To start with, the majority of churches had been owned by the landowners who built them*. The spiritual power had suc- ceeded in enforcing the rule that the 'institution' of the clerk lies with the bishop; the choice of the clerk still lay with * the landowner. Henry II. maintained, Becket controverted, Alexander condemned this principle ; but, despite papal con- demnation, it seems to have been steadily upheld by the king's court, which prohibited the courts Christian from interfering
> An exoeUent sUtemant will be found in Makower, History of the Chorch ol England, 399 ; see farther an interesting bull of Urban IV. in Chartae, Privilegia et Immonitatea, Irish Bee. Com., p. 30.
' Conat. Clarend. e. 1.
■ Clrieh 3tatz, Qeachichte des kirchliehen Beneficialwesens, Berlin, 1895.
CbORll
with tb« right of pAircmagv ' : and v«fy won «w mmy 6nd two preUtM in Utigmtiuti kIkiuI an odvowtuo bdiara the ivjral jnatioM*. In this insUoco the clergy Mem to hftva given wajr •omewhat eudly'; Imih parties wvre at one in tnatiog th* advowKm an a pmfiiable, veudiblo right. H«nr]>'a vietoij at this (Miint wna nf tho iitmoet iiaport«ooe in afWr age*. U diftin^piiHhvM EngUnd from cither eouDtriea, and pnividw a bane for anti-papal Matute•^ As regards other maiu-r» ftUliitg under the prmml hciul th^Ti' wivt little debate; but it bebofva ua tu notice ttuit uur ivmpuml ttiwyi^n were thiw excltuled from eome fmitfal fioUn of JnnMprudoncc. The growth of our law of corpuraLiann i» alow, because our courtJt have nothing to do with the internal offain of convent* and chaptaii -the eoly inntitutioDii. that is, which mvm to mqtiini trtataMOt aa fictitious pcrsDiu ; and wc> might have come by a law of truata sooner than wv did, if the joatiocw had been boood to deal vith the oduiiniKtrstion nf reT«nn«» given to prsktai er ouunnto as a |»\)viidun for particular purpuaos, imch as ihu relief of tb*C^1 (Kxn- or the nuuntaiaaoo of fiabiio*'.
{b} The eerleaiBsricil tribunals would mucb Uki* to claim the decision of all causes which in any way concern those hasli that have been given to a charrh, at all cTeut» if given by war of ' oIria.* Uanry himself was willing to make what nay asau
to us a laige oooeesaion at this point If both partm agmd
that the land had been given in alxna, liligatioo abcml it was lol proceed in the eocltwiasHtal fcouui ; if they did not agree, llis«| Ihe pteliminaxy qnestian, which would decide where the < •hnnki be tcied, was to be settled by the Tardki of a jnry. Here he was snooessfol and much bmi« than ■iiiriMiftil Tba oonrts of his snooesson insisted «a their eiduava rigirt 1*^ adjudge all questions relating Co the paasisiun or ownenhip lead, albeit given in alms ; the spiritual judgea eouM in thi» proviooe do no more than exoonununicate for MwrOBge one wha
t aUnfill. IT. tf-14.
• Bm #^. SalMi Cirfl PUo^ t. fL ttt. Unwloa't Kots Beok. fL ttl . ttn Um Uihop at Lea4«a. la « mU Iwr m a^wtoa. wMfto a «•«■
■ lUMte^ B. H. B. Kl U7.
* To S IBSlI «St«U Um Uj
BiaMHB by Um ieotria* Ihoi Um ,
•mM U MMit4 bf IbiiiM or wtMa i tal « Um wbait Uw pioai fllA* «M ten lu Um WMUU Ckrlatka.
* tJsllhai, B, H. ». wL*m
to
CH. v.]
Roman and Camii
127
iaVEuktl soil that hftd been devoted to God iti the stricieet sense by ^j«ing consecrated'.
(c) The courts Christian cluitiied the exaction of spiritual dnee, tithes, mortuariea, oblationSi pensions. The justice oi' the daim was not conteatedj but it was limited by the rule that a question about the title to the advowaon is for the lay court. From century to century there was a bordyr warfare over tithes between the two sets of lawyers, and frona time to time .somy curious Compromises were fiamtd^
(d) More igiportant is it for us to notice that the church clnima mamage, divorce, and consequently k'gitimiicy, as therngg of "PPglegiastical ^fiirisdiction.^ This claim was not disputed by Henry II. vt his successors. However, the church in the twelfth century became definitely committed to the doctriue th&t children who were bom out of wedlock are legitimated by the mamnge of their parents", Ais i'egardw the inheritance of
^lOTj land, a matter which lay outride the spiritual sphere, the king's oourttf would not accept this rule^ The clergy endeavoured to persuade the lay power to brin^ its law into harmuuy with th(! law of the church, and then in the ya&r 123tJ, a« all know, the barons replied with one voice that they wotild not change the law of Englaud^ Th^i.^t>f^tivai>.| th^^^Jg^'s-j^^^^'^^^ a^umed thf right J^f^^c<^j^d in f\ jui")! fhi'^que-stion wheth*:-!' n ]iei>ion Witj? boru hefort- nr after the niarriage of hia parent", amJ j^, iil't^*" welJ fall out that a man l^jptimate enough to be OLdainod_m:.(it may be)_to succeed tu tiie~chattela~of h"^ fflt.>n^f7 would hn a bastard incapable of inheriting laud either fi'om father ar from
mother. But except when thja pn-rfirnlan- ^|tV,|i^titin a.hniir.-*,^p
re t ^aetiveforce oMnarriage arose, it was for the ecclesiastical court to decide the queation of legitimacXv^^nd, if this ai'ose incid^tally in the course^of a temporal suit, it wag sent for trial to the bishop and concluded by his certificate^
Eccli'sijit'-
Mfttri4iui- nialcanittis.
> ConatitQtioQB of Clarendon, o. 9. We shall deal vith this matter hereafter when we Rpeak of tenure bj frank almoin.
■ Mat Par. Chron. Haj. iv. 614; Brsoton, f. 402 b, 403; Ciroamapecte A«atis (SUtatee. i. 101). o. 8 ; ArticaU Cleri (Stat. I 171), o. 1.
■ This was definitely settled by a mandate addressed by Alexander III. to the biifaop of Exeter, which appears in the Gregorian collection as o. 6, X. 4. 17.
* QbuiTiil, Tii. 10.
■ But MertoD. 0. 9; Letters of Robert Orosseteste, pp. 76, 96; Braoton's Note Book, i. pp. 104-116.
* It is for the ecclesiastical ooort to decide 'an issae of general bastardy,'
'12fi
Homan and Cantm Lam,
[bk.
JfaSL
(t) TH more impurutii to us kI the prMent titty wi* anutbcr claim of lh<* church, which hfts hail th« cffrct of dplitting our English Inw of property into Iwu halroL She ckitDed ttn hot own the iviit>im4.'ni. thitl * Ust will ' of a dottd num which «*iw iiitimatoly cunii«ct«d with hiH ImI ccafotMon. 8ho rlaimwl not mt'n^ly l4i pronouncw on the validity of wilk, btil aliMi lo iDt«rprvt ihefn. ujtd aJso lo n>f(ulat« th« doioga of her cifAttire th« tefitAmi*ntar>- executor, whom she ttuecegdod ill pUtoiiig ttloognidt^ of thu (^tj^li.th hi>ir. In the ooanw of tbo thirt(i«ath ocatnry tbo executor gradually becomet tt pmmiMnfe figaro in ibc king's courts ; ho there sues the tesUitar'« debkm ftnd is »»od by hia Grediton ; but the legmtee* who claim undvr th<.' will muMt mok thoir raroiflie« in the coorui uf tbo church, lu tliia ioKtiuiCp the comnum lAwyen MMixn to httvv niOetvd tbo canonists to gimdaally o&lnrgt ■ tvrntoiy which wa« to bo W17 vntnablv in the futuro. Aw » ggnwal rule, ^n^ wtnM mii_K» jytwn bv tentament, and oar king's c<tart w— oonccmrmtipg ita «>n..nt;.>n irn l««w and crime. Meanwhile tfte church gimwfa
Iftw of suocettaion to mofblea ofc lafaHafo. The procoM wherek^
thin was accomplished is very obecure; we shall ipeak of H UpoD another occasion; but here we may say that % DolMMI prevttilt'd Uiui tntestAcy, if it bo nut exactly a ain", b oAm Go«r» judgnieat on ain. for m ciraely ia the laat will oiicuivei«J with the hut ctinfMotion, that to die iottvtittc is to die no-
CUnA^anHJ*. And m • tho Inw gf yn-rw^tial pwi|.nrtj- ' fclU ■p.r*
ihr onTiirnilf'nfyfc
</) With great difficulty were the oourta Christian pre- veoted from appropriating a raat regtao in thif paorinoe of contract They claimed to calbiw — at tiie rcry least by apihtuAl oeosnrea — all promiaaa made hj oath, or by ' pledge uf fiftith.* The man who ptedgea Ilia fiuth, pawiu his Chrtatianity,
wfalto ■ M immmt niwiil b—uriy' h ertrf ty a )iy. 'UikkaMaUitaMr' — ih«i i* va iwM of aM«nl bMtefJj. 'b lUt ■« a laiMi WioM Ifa* HwtiM* of bi> psmitar*— UhI it aa lM«i •! q WUiliMiiiii. Ombsl iU. XU.
< Okofflt. tU. 7; lU. 17; Hansnl Uw B«rtn, lU. !••; IM» ■■ t» AMHiad ft! ifMUr tenfib «1m« «• •!>«& uf lfc« hiMer; of vittfli
tel— Utw.*
> 8« ia VOL H. «ttr MOtfca co filtssj.
««
Moman and Cmwn Law. 129
pute his hopes of salvation in the hand of another^. HeniylL a£B§crtc(] hifl jurtadictiuD over auch cases; Becket claimed at ^ least a concurrent jurisdiction for the church. Henry was
- victorious. From his day onwardB the royal court was always reftdy to prohibit ecclesdasticat judges from ent^rtednmg 9.1 charge of breach of faith, udIbsh indeed both paxttes to the!
- contract were clerks, or unless the subject-matter of the promisej WAS something that lay autfiidc the jurisdiction of the toarporal forum'. All the same, there can be no doubt that durmg the whole of the next century the courts Christian were busy with
i-bn'Ach«H of faith. Very ollen a contractor expresaty placed himself under their power aud renounced all right to a pro- bibitioiL Such a renunciation was not fully effectual, for the right to i^sue the probibitiou was the right of the king, uot of ^ the contractor; still, as Bractod explaii^, a man commits an 30^ enormous sin by seeking a prohibition when he has promised nnt to aoek one and may very properly be sent to prison". In prwstiee eetAemaatieaX jadgee were quite willing to nm the risk at hmg ■protabited ; indeed the law t^ the church oonqpelled tbem to take this haiard. A certain jtuisdiction orer marriage ■ettlemcnti of money or movable goods, the church had as part of its jurisdiction over marriage*.
(g) There remains the indefinitely wide claim to correct Correction the sinner for his soul's health, to set him some corporeal penance. The temporal courts put a limit to this claim by asserting that, if the sin be also an offence which they can punish, the spiritual judges are not to meddle with it. There are some few exceptions ; the bodies of the clergy are doubly protected ; you may be put to penance for laying violent hands upon a clerk besides being imprisoned for the breach of the peace and having to pay damages for the trespass'. But, even though this rule be maintained, much may be done for
1 C«rt. But. p. 164 : * et primum haeo omnia BMramento firmsTit, deinde ehriitiauitetem in mann mea qna se obsidem dedit eto.'
* OlanrUl, x. 1-8 ; Braoton'a Note Book. pi. 60, 670, 683, 1861, 1464, 1671 ; Braotoo, f. 406 b. We shall retnm to the laeaio Jidei hereafter in oar section on Contract.
* BntctOQ, f. 401 b. 402.
* The regular form of the prohibition relating to moTables forbad the eeeletiaatieal judge to meddle with chattels ' quae non sunt de tettamento vel mstrimonio.'
* Cixennupeete Agatia (Statates, i. 101), c. 6. 11.
P. M. I. 9
Roman and Canon Law,
['
liiiu uf «r
opoa.
the coiToct ion of unneni. The whole pitiviiiee of Hzttal monUly U aDDoxGc] b)' the church; ahe puuuiheii foniicatioo. •dalhH7» ioocKt ; and ih&te offcnoen aro not punished by the kinf^'s court, though lb«i old lucml courta mre still exocLiog tigtrwilm Mid childwU**, fines (or foroicatioa So also tho provinoo of d*- fiunmtioo u audo over to the irpintii&l jtirudiotioa, for. thaogfa tfa« load oourta entvrtain actionii for aUnder ami libvl, tiM king's court, for somu ivamki or another, has no punitbnMmt fior th« defiuner, do relief fur tla* defiunodV Usui; is in«t«d m m mere nn whfl« the nsunr is living; but if he dies in bti ein, the king auaes hin goods'. Simony naturally beloags to Um church courts ; pajnry, not alwnyii weU distioguisbed firam tke breach of a promiMory oath, would oome before th*m many occasions, though with porjurvd jurors tho ruyal could deal. Of heresy wc uccd as yet say nothing, for Engbad' had hardly boon troubled by heretics. No doubt the diureh courts wore quite pfvparad to deal with hereby should it its head, and had they called upou Lhu «tat« to bum or other- t9>- wise punifth tho heretic, it is not likely that they would h«*« called in \ain*.
II. (a) But the church had opened a Mcond parelleL claimed oqgtiiauMu of all personal outeeik enminal or civil, which a elerit was the accused or the defeodant. The >tory * the benefit of deigy ' we •hall tell elsewbere. On tbo wbele^ save in one particular, the state had iU way. The drrk arcnsed of felony was to be tried in the ecclesiastical court and was to enfler no other punishment than that which the eeelssiastinal court could inflict; it could inflict lifelong im|maonment. whatever may have been the oaee in the twelfth eeotui^. cl<Tk of the thirteenth ean be tried and puniebed fcr all minor oSeooes as though he were a layman. Then again, Bractoo'e day the clerk hat no phvil«ge when he it in a eivil action, though in tbo past clerks have boea attovvd eue each other for dobta and the like in court Christian*. •hnuM h*' *v(>ll uiidf rstood that ' the benefit itf dcfgy ' allowed by English law was but a small part of that
»Of«biBeaf
* ObetCn. VII. IT-
* Sm la n>L li. uat
* Soto Book. pL 111. MM;
J^oman and Canon Law, Xdl
immunity from lay justice which, was claimed for the ordained by canunigts in England as well as elsewhere'. Tw-. (h) Oa the coiitiaent of Europe the church often claimed HlMnliaH AH her owu the amis of the tni^erabdea personae, as they were cftlled, of widows and orphtinH\ Of any such claim we heiur little or nothing in England, though some tradition of it may aJTuct the later history of the Court of Chancery. In England if is ihe king who aets feud*! rules aside in order that summary justic* may be done to the widow*.
Large then is the provincQ of occleaiaatical law ; but it Ths ipluoM might have been much larger. Despite the many advantages u,J^*^ that Henry II. gave to his antagonists by hia rages and his furiea, he handed down to hia successors a larger field of purely .Ul'i temporal justice than was to be found elsewhere*. Even in '' Normandy Richard had to conAJgn to the eccje?i>«^'™' fnrnm all qnestiona about broken {mth nr broken fnith'. Bub we are hej'p-ouiiJJ35rned with the fsict that from the middle of the twelfth century onwards a very large maa$ of litigation, of litigiitinB too whkb in no very strict sense can be called onrliw'iiTrifsl, wss handed over to tribimals which administered the Miidn lav, tribunals vhich were often constituted by a papal rescript, and from which there lay an appeal to the Roman curia.
The canon law begins to affect our temporal law sometimes inflaence by way of repulsion, sometimes by way of attraction. It is in np^'fing- opposition to 'the canons and Roman laws"' that (if we may so •i^'*''- speak) our English law becomes conscious of its own existence. In the Constitutions of Clarendon we have our first authoritative redaction of hitherto unwritten customs. If our consuetudines are to prevail against the leges and canones, they must be accurately formulated and set in writing. The ' Nolumus leges
) Uaitlsnd, E. H. B. xi. 646. Oratiao at the end of o. 47, G. 11, qn. 1, Boinmed ap the matter thus : ' Ei hia omnibos datur iDtelligi, qaod clericus ad poblica indicia oec in oivili, nee in oriminali oansa est prodaoendos, nisi forte civilem caosam eptsoopos deciders noluerit, vel in crimioali aui honoris cingulo earn Qodaverit.'
» Schroder. D. B. O. 669 ; Ponmier, Offioialit^s, 79.
* Glanvill, vi. 14. The widow who has received no pari of her dower may go straight to the king's court.
* Schroder, op. dt. 568 ; Foamier, pp. eit. 64-94.
* Mat. Par. Chron. Maj. ii. 368.
■ OUnvill, Til. 15 : ' secandam canones et legee Bomanas.'
9-2
132
Roman and Oanon Law,
[nc. T.
Au}(liw] tuuure* of 1S36 ia do aimoaoccment of a poroly abftmct conMrvAtum; our Kn^ttAh nitc It to be nuunuiiwd in op|HMiitinn to the ouioiu. RepiiUioii (m-^pU unolakiocL GUiDvUI will buvu it that tho Engluh law>. at lout Umm mMfo by the kifig with the oounMl of hia baraui, are Uyrw, jtnl much t«fjMi a» any that are stadied at Bologna'. But (hit Doi all III later daya, in thg fbtirt«<aith aod fifUicDth t>-nturiwL' the capon law on be administored ra Kogland with»ui io" flnenciDg our commop law. The king'* juirticefi. the practi. tiooen in the king's court, are in all probability profouDdly ignorant of the Digest and the Decr«tak. Th« leanHid doeton who practise before the episcopal trihunAla ore not so ign'>nuit of the tonipoml law, for it wta limits to thuir sphcro of action ; Btill thvy would not profow tbanwolvo* matters of iL Bat i& the twi'lfth, and oven in tho thiri4*«<nth, ixminry thJA was tkot 9a. Henry's greatest, his mott lasting triumph in lb* legal field was this, that be made the prelat«« of the oharch bie justioea*. Nothing could be less tme than that he qaamlird with the whole in«M of bisbopa and otcigy. No doubt hm tr-t bestowal of the great plaoee of the church upon men who bad eamod, or were to uani. ihem by fiscml and joatidary laboan, haaan erilaide ■swell tu* a f^ood. We are here oencsned with it* good nde. ED^^IjaJui*uL_3gae adroinMrtered br tbe ablwt> the beet edocateS, nugp "* ^fa* w***"!; nor ooly that, it iraa by the eelfmnK* men who were 'tfce j»dg— offdinarv * of t£e ehnr^^ floorU r** *"" leni JumnA lo ntfmt least in milH |||neenni| Irarnfiri '" 'hn flfflll '*" -A-t monieot Henry has three bishops (ur his * archjuaticxars'/ dimai ia reached in Richard's reign. We can then see king's court as it sita day by day. OfW ■ooogb it oompoeed of tbe archbiabop of Canterbury, two otbc two or three arohdeacooa, two ur thnw ordained oleHu who wore going to be btsbope and but two or three layman*. Tba
' OtuTiU. l*rote«M: BraMnt. C. 1.
• Tb«* OS 104fa Jul;. IIVA. tU w»m ssaiMs «l Batal Walter, sl^ CMls>tef7. Qudtamy Laej, b|>. vi WInttiwlw. MakaH Rldtsil. kp. of ^aduf «f ths i>tel«fw). UUfaMt Gbarflb. fep. W ■■■hiiisr «s ■ihotar), Wlrtsri Bstn^ snhd. of E^. Bsl|A r«Ual, uiM. irf WfllkH sT ChlMlU< snM. at lH*eiiil. WUba li Ms UIm II aftw«si4i ^ at LoBdoo, OfoCnqr yiu^^w, mmm lUebsrJ BaiteL
»
CH. v.]
Roman and Canon Law.
133
majnritj of its menibers might at any time be called upon to hear ecclemastical causes and learn tht) lessons in law tliafc were afldreB»>ed to them iu papal reacripts. Blackstone^s picture of a nation divided into two parties, 'the bishops and clei-gy' on the one side oontending for their foreig'n jurisprudence, 'the nobility and the laity ' on the other side adhering * with equal pertinacity to the old common law ' is not true'. It is by ' popish clergymen' th-tj^ „»>■ Rnjj-liol^ ^f,r»Tri»n l^^^ \^ ^cnvfirtt^A fn^m a rade mass of eufltoms into a\^ ari^ipntat.^ ^y^tftm, nnf) whpn fha ^pf>pla^^ pif»i-^^r»^r^ ' yielding at leT^^f*^h tn t.h.:. pipf-y.
|fl
cotptnajods, no longer sit as thg principal justices of tbii Jting'a, r-oiirt^ t^p fireativR a^f! of our medieval lfv>v irt ■■"*"^ Very charicteriatic of our thirteenth century is it that when there is talk of legitimation per subseqitens fiiatrijuomum, the cham- pioD of the common law is a canon of St FauTs, William Raleigh, who is g^oing to be a bishop and somewhat of a martyr, whiose name is to be joined with the names of Anselm and Becket'. These royal clerks have two sides; they are clerka, but they are royal It would not surprise us to discover that Martin Pateahull. justice of the Bench, had prohibited Martin Pal^huU, ainhdeacon of Norfolk, from metldUng with lay fee. But as archdeacon he was bound to have a decent acquaintance with the canon law, and as justice he could not forget what be knew as archdeacon. In the second half of Richard's rejgn Hqbert Walter, the chief justiciar of England, who sat day h.v dat at Weatminster, was also the archbishop of Cant^rbttry- A gpitefol tongue has told us that he was no great Latinist, that he could be guilty of ' Tres sunt species cautionis, fidei- iussoriam, inratonam, pignoraticiam ' and the like' ; still, though we can suppose that this busy primate of England was not deeply read in the Decretum, he must have heard a great deal of Decretum and Code and Digest, even before his prolonged struggle with the Canterbury monks and their Pillius and their Ugolino.
We attribute to these clerical justices in general no more En^iah than a superficial acquaintance with the canon law, an acquaint- ni^^nxi hj ance with its main principles and with its methods. But this JS^***^
1 BUckstone, Gomm. i. 19. > Bob. OroMetMte, Epist. pp. 76, 96.
■ Oinldaa CambrensiB, ii. 314-5, iii. 27-6. Giraldas afterwArds retracted fab efaarget ; tee L 436.
134
Homan aiu/ Canwi
[«t.i.
KfttafBof
tteMAO-
obnl 1d-
It Ui^i
ID D^H
l3
much w« most attribato to then, and H mmaa a gnat (ImL Let lu OfiDceive a man, mhcmn notitm of taw and tha kigie of law ia that which is displayed in the Ltgn ffrntriei, eoming npon a gloaaod ve-reiaa of th« DcctpLiidi, or «till b«tler npoo ■ofne 8umina Much an that nttributod to William of Luagehamffc Hill wbolo Doiici'pt ion nf what a law-buok, what a jvdgmtfnfc dhould hv. of how ni*^n should state Uw and aigoe about lai isunt otidergo a radical ehanyv. Viewed then*fiin< (him point, th^ rffoct prodaced un En^liwh law by iu contact the romnno-canonical IcarniDg rcvnui immeaAurabtc* or xm able only by thu distaaco that divtdea Qtanrtirs troatMe tnm ihv t^jt* Hvnriei. i
Law, it way bv said, in one thing and tho txpraiBioa of Uw another. But wo can hanlly. cT«n in thought, divnr«a tlw matter of law from ita form. Old traditional rules most loaa their <AA meaning ao soixi aa men attempt to wesfe then into a reasonable system. En^ish law, more eepeoUHy tb« EoglMi law of civil procedure, was rationalizod andor thi* infliivDra of the canoD law. Here and thcro wo may note a plaia caat in which the one system has borrowed a whole set of mlea fram tM the other. Thus Glsnvill tpllrt n.^ that the ' exeeptioaa.* or aa we should say the ' challoogua*' which can be mad* agai— I jnron are the same as the exoeptioDs which can be mada agaiaal witnenea in the courta Christian*. Here a whole ch^Mr of law. which in the hands of the raoonista is already baaowing a bulky chapter, is borrowed. Such instances, howeTor, an rsdra, and this instaiwe is typical and itistraotifo. Our Rnglish jaimn i, are already very unlike, and ar« becoming more unlike, t|^| canonical Csster; and they will not be made any mure like tll^^ oanoaical Utt€a by the application to them of ibeae nilc« abont exceptions or challenges. Another maia erf raXm ia borrowad. The elamenlary oollines of ibe icieBee of pJ sailing can oaly be expreand ia iema iumUar to anliaas canooista In any caae we must begin by Myii^ thai exeeptioDS (special pleas) utmw an> dilaUirr, white otbef* pwampioty*.' fiat in onr lay courts a distinctiire tarm m gi to tbcae mlea by Ibe mode of trial wkidi pnvmik tbore;
1 Okar.a IS.
■ Wm. 4s Uoas OsBpo (OsflliMir. p. W| i ■ Bb |ia|iilsai. bUm 41k»ortoK* Bn««. t «Mki 'gtiiUlisifc 4QBlstta% iloMdaa ptnmpLohm.* TMt Inm ImL 4. U. ».
I. V.
Roman atid Canon Law.
135
triiil by jury, and before iong the canonist will hardly be able
»k> imderstand the English lawyer's doctrine of special pleas. ^hs taazB of aov«<l dbi»ebiii iaaM-ggesit^l by th(.> actio apoUi ; fBt it 10 not the actio spolii, J Our English law shows itself fltPiDg enough to asaimilate furAgfi ideaa and convert them to its own use. Of any whok^sale ' r<:cepuoii ' of Roman law thore ^^ is no danger. From the day at Clai^eiidon otiward^f it is plain ^R^it we have many ccniJiirfMrfr'ne/ which must be maintained in ^v teeth of legex and citnofies. The king's juaticeft, more especially those of them who are clerks, become interested in the nmintenance of a system that is all their own. From titae to time the more learned among them will try to attain n foreign, an ftalian, standard of accuracy and elegance; they will borrow terma and definitions, they will occasionally borrow rules; but there mtist be no dictatioii from without. The impSpaJ laws as auch have no rights in England ; the canan Uv^Eu its proper province and should know its place.
CHAPTER VL
THE A(3E or OLANTILL.
Tbvwork XL
TnK reign of Henry 11 U of aaprotne importMKw in ibe \p.t hi-it'tQ' i:>f our bw, tuifi \x» iinporUnco i» dae to the Hliao of tbo contnil powor, tn nifoniM ordained by the khig*. Still it WM rather as an Dr;ganijeer and governor than n» a lef(i«Utor that Honry wiw active. He inned no code; we may eiroa doubt wheUior be publinhrd any ono nrw rule whiefa we ahuald call a rule of lubetAntive law , bni ht.> was for nvrr bufly with new devioef lor enforcing tho law. Much of what he did, much that was to detenniaB the fiite of our law in afUr ^i^ vas done in an infennal fiMhioo without tho pomp of fagirfilinft A few words written or but spukcn to bis josticn migb e«tabli<4h a new mode of proocdoro^ There would bo Doibtay ki bo procUimod to the world st Ur;ge, for in theory tbdro no change in the law ; and yet very turely tho whole law Boglaod was being changnl both in form and to rafaeUDoau To this admin iiitmtive character of hit reibrraa we may aaenb* oar lamentable lock of dooununtaij avidoDce. Nrw laws dn- manding the obedience of all bui mbjcota would hare been prawnred ; but a mfny tnntnictian given lo hb joatioes mjfht DOl be embcMlicd in any formal instniment and nighi w«U uHcapu ihf notice of the moat punctual chniaider. And mt oaoM about that in a veiy thort time many of thm raaolia hit aotiritT were rsgardec^ aot as the ontoona of
> Am 10 ihi nfiniinaHt— I Jji nf 1!ij^ nioiM «• kna Unto to mtk wWt hM kMs mU k]r Dr Mabte la ths lamiwlbo to ite H. Om MMi CbmhmK m4 ths CVinglMilfaaal HlHaiy.
>m
t
but as part and parcel of the traditional common law. A few onUnancaa or 'arizes/ those which seemed most important to his contemporaries, fonad theii- way into the texts of the ebronicler^; some have been recovered of late years out of ttlmoat unique mauuscripta^ but we have every reason to fe^r Uxat others have been irretrievably lost
The first grea-t legal monuraeDt of the reign is, however, no 2^*JS*" ordinance. In 1164, when the dispute with Becket was waxing ClareDdon. hot, Henry held a council at CSarendon and there caused a ' recognition and record' to be made of certain of those customs, liberties and ftignities that his ancestors had enjoyed. He called Upon his nobles to declare the law of the realm as to the mattera that were in debate between church and state. Their declaration of the king's customs was put into a written document, known to ua aa "^ the Constitutions of ClarL-ndon7 antTTo thLs the bishops were required to append their aeals'. Henry was not legtslatirig ; according to his owu theory he was playing a conservative part and relying upon prescriptive right. He demands a deBnitioB of the old law and then tenders this to the prelates as a concurdat. Not long afterwardsj probably in the first months of 1Hj6. he was again halding tin assembly ^|*JJ^ At Clarendon and 'by the counsel of all his barons' he issued an assize which made great changes in the administration of the criminal law. Whether this was intended to be a permanent measure or was merely to serve as an instruction for the justices who were just being sent out to hold an eyre, we cannot say for certain, but it was sufficiently new and stringent to require the consent of the magnates. We have, however, some reason for believing that on this same occasion Heniy took another step which was to be of equal importance with that which is recorded by the words of our extant ' Assize of Clarendon,' that he issued — it may be merely by way of instruction to his justices — an Assize of Novel Disseisin which in course of time was to mould the whole history of our civil procedure and to cut deeply into the body of our land law. The words of this ordinance or instruction have not come down to us ; very soon they were concealed from view by the case-law which had grown up around them. In 1170 Henry instituted l»qnprt of a grand inquiry into the conduct of the sheriffs whom he had
' The dooomvot that we have professes only to give * a oertaiti part ' of the eastonu that were ' recognized asd recorded.'
138
TKe Affe of GUtmnlt.
[BE.
,tt«)«y.
removed fniii) th*Mr ofKces. Th« inntnirtion for tbiit *Ini|u«it uf J Shuriflii ' we have : it in Jui auiy example of ihoM article* of in- quent hy which, a» tiin« goe<t on, the whol<^ inArhiiifn.' of ji ui siibject«d to examination ami uinendaifut. At NurtttampUa' iu 1170 a fWrah set of inatnictioDa wad jfivea lo the itinermnt jutticfdi; the Assise of CUreixloD wa« to be enforced, but ia * yet severer form. A brief clause in this Aimse of Northamplna •eetnH to be tbo origin of iht^ piisnwiiiy action of ' xm>n d'an*] oeslor ' which tokw il« place beHidi* the ' Diivel di«Hriid&*/ Aa Awrize of Arms from 1181, an Amtxc of the Kortwl ttom 1194^. no Ordinanoe regulating tb<* mlterlion of the Saladio Titlia^ fh>m lifts, an Asioxe of Bread of an uncertain dale. — lhea« seem to romplotc the list nf the ordinaneos that have eoaw down to UH* For the r»Ht. we may draw some infefeooae tton the sb^riffv' accuunts recorded in lh« uioual pi|n rolU, fru« works of Olanvill and Richard FiuNc«l and from the told hy the chrunicleni'.
If we tiy to sum up io a few word* Ihoae reenlts of ilenir's rcigD which are to be the nxwt dormbfo and the moat trtiUi ful, yr« may my that the whole of English biw is oefitimliaeil' aitd uni6pfl by the institution of a firniuin«nt court nf pm- f€>(wionai judgi-ff, by the frmjuont tniMiion of itinerant jil<)gM throughout the land, by the iutroductiou of tht* 'ickqueX' or ' ruoogniliuD ' anil th«* 'driginal writ' sn normal parts o( tbo machinery of justice. We muvt njteak bri'^fly of each of tlMaw mntlojs. and will bugin with that which modera rufllishmm will be apt to think the moet djatipctive I he tnqiieit. reoognition, trial by jury*.
The leeuneu of the jury— if for a while we oae the 'jury * in th« widtat mmim that am Iw given to it — seems U» this : a body of neighboura ts ■ummone*) by some public ofl< lo give opon oath a tnie anewer Ut sdom qneelinn. Tkat^
• ktK Kcf«luUB|>. «u 4.
• TlH rtnuBwiito an prlsM la m» 9ttm* Cbmtm, BwU. lor wfakh mt CMsb^hsai, gotllrii fslsilg tmtO aw mLt,\.
' Ihm tsett fllrtUn^i tMUuonlM to HamtjTt gvfvnMMuUl ariMii* m« mI U0Mli!rltlttUH.roiirt. HiM.|l«7. IUl|MiKlp«a^;«i*N>lkiiuM>ta sbsMh kiftu uttqols. ttagtMm saals aevw k*
• Ib lh« Bsio «• SflMfS lb* HMOta sItefMd fcy Bniasir to his 4m SfliwiiTfsriebto. Tbw Iksw titmij bMi aiofM hf SMblw, |IM. 9m sif hnmm, P. ft. O. tt Wi-T; TWyir. Di iiliiwiil sT my Iff
4
Ip.118} qtiestioQ may take many different fonus : it may of it may not be one which has arisen in the course of litigation ; it may be a ^^ question of fact or a questian of law, or again what we shuulil ™ now-a-days call a question of mixed fact aod law. What are the caatoma of your district? What rights has the king in your district? Name all the landowners of your district and say how much land each of them has. Name all the pei-sons ID yotir district whom you suspect of murder, robbery or rape. Is Roger guilty of having murdered Ralph? Whether of the two has the greater right to Blackacrej William or Hugh ? Did Henry tiisseise Richard tif his free tenement in Dale ? — The jury of tri&i, the jury of accusiition, the Jury which ta summoned where there h no litigation merely in order that the king may obtain information, these all spring from a common root. On the other hand, we have to diatiiignish the jury from a body of doomsnuen, and also from a body of compurgators or other witnesses adduced by a litigant to prove hia {.-aac, A verdict, even though it may cover the whole matter that is in dispute between the litigants, even though it inay declare that William has a better right to Blackacre ihmn hiis Hugh, differs essentially from a judgmfeut. a doom adjndgmg the land to William. Even though the form of the verdict and its conclusive force be such that the judgment must follow as mere matter of course, still between the sworn ▼erdict and the judgment there is a deep gulf'.
If what we were seeking for were a court in which at the Jnron, bidding of its president, of some national or royal officer, ^nd *° ealdorman or reeve, the inhabitants of a district, or some ^itnesswr. selected group, perhaps twelve, of such inhabitants, deemed the dooms, we should have no difficulty in discovering the origin of trial by jury. Everywhere we might find such courts, for during the earlier middle ages it is the exception, rather than the rule, that the judgment should be made by the lord or president of the court or by a group of professional justices. But what the jurors or recognitors of our twelfth century
1 Whan both the jary and the body of doomsmeD are already eBtabliahed iiutitBtioni, tbe tranaformatioD of doomsmen into jurors may be possible, and this transfonnatioa may actually have taken place in our manorial oonrts. See Bd«ot Pleas in Manorial Courts (Selden Society), pp. Ixvi-liviii; Vinogradoff, Vniaiiiage, 870-1. But that the jury shonld have originally grown oat of a body of doomsmen seems almost impossible.
140
Vie Agf of OianrtlL
[bx. L
delivt
judgtnt
I
fmfimU-
Orfgkial
Tha
er u no judgtnont; they come to 'reoogmm. to dacwn, CfU the truth : their duty U, not iudicin factrt, but rteoynMoert wntotem. No lew deep U the giitf which tepamtM ibem from witiMNaos addaoftd by a Utignnt If all Lb«l we wuil«d mn wiliicwM^K, ifoll thAt wc wanted wuruafixod number of witneMei* lor ^xsniplt.-, twiilvo, ih<!re would really b« no probtein bdare UK. But th« witnesMM of the did Goniionic folk-hw difler in two mpeobi frrnn our jnmni or rucogniton; — tbvy wo mm- moiiw) by »i)(t of thn litigattU, luid thoy im* mmmoiw^l to %wtmt Ui ft act (brmula. Tht- junjnt an- xuniiiiurivd by a public oAcar <bd take an oftlh which bindi« thorn to toll thv truth, whfttevvr
I tbo truth miiy Iw. In pfirtttMilar, they difTor frtiin nAth-hi'<lp«n or coropai;gfttor& The oath'h»1{M5r \» \m>\x^\\i In th«t hr nwjr Wremr to bhe truth of hu pnueipola uath. Nunnalty he hu beon
'choKcn by the litigunt whoM oath ho i« to support^ «nd orvB whm, sa nometinivfl happtmn, tho law, attompting to make ibv old proccdun? tmmowhal more ratioo&l. compvla a man to chooM hu tmth'helpon from amung a group of pvnomi denignat^d by hi« ndvonouT or by hin judges, «till tho chosen oath-holpcr haii aicri'Iy thi' rlioicv botween iiwMring^ to n set formula ('Ths oath is clctui thnt A . B. hath iwom ') or refuaing to nroAr at tJL On tho fithiT hanl, the rwooguitor mutit awear a promi—wy oath ; he awean that bo will apoak the truth whatever the txuth may bn.
~ Thon on tho (aoo of our Englinh history wv b«mi to aec that the jury is intimately oomiMtod with royal pamr. X»i only do the king and his oSoen nako tho (rtmi we of it in the form of ' an inqoeafc «r ofieio ' for the parpoM* of obtainii^ any informntinn ihnt they want about royal rigbta, local fnuiuuu ur other uutltcre in which iht* king has an tnlerest, but, an a part of logal procedure cinl and criminiUi. the jnry ■preadt outwards fnim tho king's own court. To the haft, iftal by jury haa no plaoo io the ordinar)' prooedon of our old oominuual ouurta.
Tbo English jar)* has faaan ao highly prized by EngtisliaM^ •o often copied by fbroignsra, that its origin has basn soqghl in many diflonmt direetiofta At tiio praiant day» hawarar, there ran bt* little doubt as to the qoarier to which wo ooght Io liKik. We mnat look to the Piankiih imquintio, tJw prarogatm rightji of the Fnuikiah kisga. Mot to tho urdinary prooadiiM a# thu Knukiah ooarta ; that, like the prooednre of otir own aneisBt
I
CB. VL]
Hie Age of Glftmnll.
141
communal courts, knows but Bueh antique modoH of prwif as the ordeal and the oath with oath-hclpors. But the Frankish king has in some meamtre placed himself outside the fortnalism of the old folk-law ; his court can administer an equity which tempers the rigour of the law and makes short cuts to the truth'. In particular, itnit-ating, it may be, the procedure uf [■the Roman Jiscus', he assumes to himself the privilege of SiDGrtaining and maintaining his own rights by means of an inquest. He orders that a group of men, the best and most tonatworthy meu of » district, 1k' sworn to declaim what lands, what rights, he has or ought to have in their district. lie usda thift procedure for many different purposes. He uses it in has litigation : — he will rely on tho verdict of the neighboiii-s instead of on battle or the urdeal. He xmen it in order that he may leftm how ho is served by his subordinates : — the ncighbo4rs mre required to say all that they know about the misconduct of the royal officers. He uses it in order that ht may detect those grove crimes which threaten his peace: — the neighbours most aay whether they suspect any of murders or robberies. The procedure which he employs in support of his own rights he can and docs grant as a &vour to others, tu particular, h« will concede to a church that its lands shall, like his demMne lands, be protected by inquest, and that the bishop, if his title be attacked, may put himself upon the verdict of his oeighboon instead of abiding the risk of a judicial combat. *^* *-hifl ^** ffl^ 'H tfb" ^''^"'^'''^*' finpiryof the niuth i^TTiMirj-j we see it in the Neustria which the Normans are invading. Then the deep darkness settles down. When it lifts wo see in the new states that have formed thcnkselvcs no central power capable of wielding the old prerogatives. For_a_hing— time. tgf eaifte the sworn inquest of neighbours will nnt bo fin ntti^rljL unknown tiling in France ; it will only be finally overwhelmed by the aprea^l '^f *^- rnp^anft-rRn^cal procedure. Even in Qprmanv it will npp«-nr fpym time to timo. Yet on the whole we may gay that, but for the conquest oj England, it would h%rr_jTrrii''°'' •*"'' '""g "fp ^'flY^ *ff*r^niB ^ mat
antiquary.
■Such Is now the prevailing opinion, and it has triumphed in TbejiiPT ii ihia conntry^vtir The natural diainclination of t^uglisbmeu to^^"*""-
^ brnonnr, Seliworgonohb), pp. 74-5. « Ibid, p. 87.
U2
77ir Age of GlanvilL
[bk. L
ndmit that thii ' palUdium of oar libertim ' u in iU urigio Dofc English but Fnuikinh. uut popular but royal. It iscortaio that of the inqaertt of office or of the jury uf trial th** AngkHSaioa doomfi fpve ua no hint, certain also that by uo slow pmeoM of evolution did tb« doouuunan or iba uatb-hulpur beoome a rooognitor. Tho only doubt that tht>n' ran bo ia «« to the jory of accuiAtion, the jury as an or^n of/nnui publitxt.
Thia spociM of tho im]uc^t in that which it the moti likely to bavo p<*netmUnl U'yond tho linnu of thr nnpinr. for within thoM liniitit it waM adoptc^l by tbi* church fur bur u*rn pui-puM*. Jtift as thti king mi^[ht collect cbara^-a of cnmc, imi the rhureh iDighi colwrT^Jgo* *jf »i»- fo tht; early jMrt <*( thir tenth JBuniiytAa canooiat R4.*gtnii of Priini dw»rrili«« thf* btahop holding bis synod, aelecting a number uf trustworthy mra from aoiotiti thu aancmbb-d laity, adtniuintering to tbom ao oath that they will tell tho truth and conocul nothing lor low or hato, rewanl ur kumhip, uking ttuMU to report tbair ■u^iriooB of th«ir Doigfaboura, and oompetling to the ordeal or (o eomporga- tioii thoM* a^iinMt whom bad talca arc told*, It wotild not be wonderful if thii prooodnrc Mpread from the Fruikiah church to the English. In the days of Dunetan and Uawakl the EngliAb church wju borrowing ideas and instituliofu fron the Frankiah. Bat we hare no din.<cl prrxif that at any time bi*lun) tbo Cocqneet the Euulisfa church did use this lyatem of awofii coinninnal accosalion. Theru ifi, bowavvr, one taw which mosl oauee witne difficulty. It is a law of iSthelrMl the Dnnadjr, pobtiiAied, eo it wuuld soem, in the year d07 and applieahb only to the Danish diatrict*. In it we rrail bow a moot le W be held in every wapentake, and how the twalva oldeat thrpa am to gu out with the reeve and to swear opuQ ibe Itdk that he putM into their hands that they will acooae no innoevnt and coDcoal no K"^''y ""Ui. Certainly thi« Uwka Ufce a jury of anmsation ; but iho context will make us doabt wbatlier wa
■ X^^ rmnMiaa da BMha. Umtpl Ub. 1, «^ « (H^m. NlnL sm). SI«bfai,Osaai.llM. i.^Mtr«Mrk■1haldMteM«mi<yMrfl <4*aae ptM«t,*hrt*«a)rr«HjrtoUHmi|«if7Df tl»vWilackM«r.* Boi iW« U w
IsqairiM ai<*Fi«ii bo lU« ky lb* nrfsl oAmt. C^ Bu^uA Wi DacNM. Ub. L capL n <1*««aoL aaL my
• JRIbalnd. m. a. A« to tba Oaahb ateiartv of thii OmMm. p. Ui Uwiuam. Behwaivakhla. ^ eMt K. Xmv. KriL T. Mt ^ Stasaalrap* Oasalag. p. MN.
I
I%e Age of GkmviU, . 143
have bere a law of any genonlity*. There aeem, however, to be good reasons for belteTing that some of the Scandinavian
^ Tintirrnff <A>uae by a route of their own to something that wu veiy Hke the jozy'. The investigation of this me^ter is nude the moie difficult by the comparatively recent date of the SesadiiiaviaiL law-book& No doubt there is here a field for rsseudi^ bat it seems unlikely that any new discovery will distarb tiie derivation of our English from the Franki^ iu- qooslSL We ma not aa,y a priori that there is only one piwibin (dgin ibr the jury, we cui not even say that England was ooipce^pand ibr the introduction of this instituti(»i ; but that IdkA Nofinao duhe brought it with him as one of his prerogatives COD hndly be disputed'.
Hsn^y had England been conquered, before the swoxhTIm inquest of neig^boais appeared as part of the system of govern- ^SSm- meat and royal justice. The great fiscal record known to us as ™" ""^ Bomssday Bo^ was compiled out of the verdicts of juries*. The king makes use of the same engine in h^ own litigation ; hb can bestow the right to make use of it upon &voured ehurchfls*; he ean direct its employment in any particulur case*. We see too a close oonnexicm between the jury of trial and the protection of possesftion, a connexion which is to become prominent hereafter. In the earliest case in which there is to our knowledge anything that could be called a trial by jury, the Conqueror directs his justiciars, Archbishop Lanfranc, the count of Mortaio and the bishop of Coutances, to summon ,to one place the moots of several shires to hear a plea between tHe abbot of Ely and divers other persona. Certain of the English who know what lands were held by the
1.123] church of Ely on the day of the Confessor's death are to declare
> Bnmner, Scbwnrgflrichte, 402-3.
* E. Uaorer, Dm BeweisverfabreD nach deutsohen Beohten, Krit. Ueber- acluQ, ▼. 3S2, S74.
■ voB Amira, Pftal'a GmndrisB der German. Philologie n. ii. p. 198, contends tbAt the jar; appears Independeotly (I) in the FranluBh king's court, (2) the Danish king's coart, and (3) the Icelandic courts.
* D. B. IT. 497 (Liber EUensis.)
■ See e.g. Henry II.'s charter for Roohester, Monast. i. 177 : * Omnea minatas terras.. .confirmo in perpetTium...in tantnm et tarn pleniter eicat proprii ministri mei ezqairere deberent.' This should be compared with the Frankish and Norman privil^es. Branner, Schworgerichte, 92-95, 23S-45.
■ The principal oases are collected by FalgrBve, Commonwealth, ii. p. clxxvi, and Bigelow, Placita Anglo-Normannica.
144
71w. Age of OlanmlL
[bk. l1
lb*
th«ir knowl«dg« upon oath. Thii will hm « vsnlict. not • judgmenL. Tbe justioes ar» to restore Co lb* church, doI kll the ItLluk that she beil ut ihu tlatu thtut fixtid, liut ouly imrh nf them AS no ooo claifi)« uudcT the Cuaquvmr. A [MniaiUr quistion. a qucstiuti about poneauoo at » gtveu nioiiR*itt i>f lime, i* thus unglud out $n our ihiit MhuuUI be dflciUvtl by » aworn inquekt of neighbour^'. Had iho abbc>t of S( Auguatui'e a fthij) free to ctum tbe »«« oo the day when tbe king laM went ■broad 1 How many pigs free of pannage had tbe abbot of, Afaingdoa in the time uf Henry 1. 7 T)id thii« land beloQg old t4t BridtoD or t** Bridport / — Such and mich like an* tiM qamttioHM aboat which Tcrdicte an taken. Still throughooi tht' Normou iK'riod Irioj by jury, the iDtruducliuQ of oil inqu«at into the prvx-edurv of a law-auil, rcinaiiw an exceptional thug. The £«y«r llenrici know nothing; of it ; tbe iWicaf who an thorc mentioned aru nut recoguitun but doomamen. Of the aociuiug jury on the other baud fiunt traoea are to be found. We oertainly cannot aay that it was nevsr oaed, hot we r«ad very little about it*.
Pedcr Henry n thy ytwpt^/mal beoofnea "^TTlH -Th^ kiag oonoedca to hu nibjeota aa a royal beoo hia owp preiiigatifw pniccduro. Thi« in dune bit by bit. now for this cla« of caaae and now for ihnu It ia probi^ thai while not yei king ba had done aoincthing of thr aame kind in Nonnaady'.
It is by no meana nnliktsly that the daa of dtqrataa wbiofa was the fint to be vubrnitlod to a jury aa a matter of nommoo practice waa one in which the claims of the chnrob nama into ec^liaion with the daitna of the atato. In ttuf twelfth o the church was aaaerting and establiahing tbe principli' that litigation aboat land that had been giren by way of alma
•I n
■ BaaOlaa, TinnWIo Oob. OSatab. p. ntk •On tmrwai niearfwii. fwnitrm w« mirtaarf oo ih* Pf|» BaD
Hear; L Bm ako Braaaar, flakwamifahta, pfi, Mi-4.
■ BnuBB, pp. IOt-4. Aa to SeeOuid. Own it aa 4a«ta ikaN tnm tk» Haw or Datid I. onwd* th* ki^p aud* uai ef ilw huaial urmlwi 0«a ^MM« in lh» U«i wiUi lo DkvU (a. IQ ipaaka aa Ikoa^ i^lwhijUMaf <mu of oonl diaaiUbi *^ awcl ^'huhCot vbs abw^r *■ hIUhih : ^i t^
MM. In wUab Ma | r i* hwid mm lo U tea a«4 kto. aai H la WnUy ia
Waf«c« with ita munmoSn§^ Oa Iha o4kw lMa4. wrtate paMf •Mab poial to tarjuaa «bMi daoUa Mbat^laato ^mmIdm la wlMiaal mm* (a. it ■1^ «^ W aaaiaaL Oa tfa* vbala «■ Mt* U thai iW |Biy ha* aiaia ika awaa fcbtoiy to Hiinlaail aaJ la titf inj i tt ipiiaili aat^artt fraai lasUag; Ut*
ky
k lUl God and the saints should come before her courta. This principle was hanlly disputed in Stephen's day ; but of course in nxituy cases the queatioa would arise— ' Is this knd alms or i* il lay fee V To allow the casts to go for gootl and all either lo the temporal or to the spiritual forum, would be bo beg ihw preliiniiiiary question. Church and state are at Issue, and
I neither should bo judge in its own cause. The voice of the oountryside about this question — which can be regarded as K quGatiou of fact, ' Lay fee of alms ?' — -may be listened to ; it ctuzie^ so to epeak. Jrom the outside and will be impartial. At ■WyTtfff Hffry '" the Constitutions of Clarendon claimed jg one uf the ft^ci^^nt customs of ihc realm that such a question ghouFd be decided b^^ the oatb of an inquest in the preHetice of his jiiatioiar'. In this a« in other instances we have some i-i-ideuce that the kings claims were foundefl on past history^ A Btory comes to us fivm the abbey of St Albans which describes a lawsuit of Stephen's day in which the question * Lay fee or aJms r^ wiis submitted to a jury charged to tell the truth both by the king and by the bishop of the dioceao*. Be this as it ^ may, already in I Iti* Heury asserted that a procedure which in after days was known as the aasisa utrum was and ought to be a normd part of the machinety of justice. A^ recognition* by twAlv*» ]Attffiil mt>n vraa ij^ »it>o\f\e: whpther (utrum) the lan"d~tn
Hiieatjon wan alma or l^^y ^p*^i
Some two years later, perhaps at the council held at The Clarendon in the firttt month» of 1166, Henry took a far more dindsin. important step. He issued an ordinance and instituted a procedure: ordinance and procedure alike were known as the assize of novel disseisin (aasisa novae disseisinae). At that council was published the edict known as the Assize of Claren- don, which deals with criminal matters and which served as instructions for the justices who were being sent out on a great eyre throughout the land. We 6x this date as that of the assize of novel disseisin, because the next pipe roll, a roll which records the abundant profits reaped by the itinerant justices in the field of criminal law, gives us also our first
I CoMt. Ctftnnd. c. 9.
* 0«bU Abbatam, i. llS-fi. The story is told with great pKrtienl&nt;. Id mU probability tbe sobntaDce of it ia true aud comen from Stephen'^ reign ; bat apfwrently some miitakes have beeo made about tbe names of the variona peiaoDt eoooemed in it, as a diKunssion of dates would show.
P. M. I. 10
UG
The Age of OlfwvUf.
[I
tidings of tnon being amerced for diaMnnn 'agmiiut ihv kioR** Jt^ MnJTt' ; fn>m tbal tnumunl uimanlii wc fpi% nuch lidisgft jtmr by ye*r'. f^iwrtrf Of thiit ivrdiniuirt'. which woh in ihc long niii lu prorr ibvlf
OM of Lhv moHt iiojxirtuit laws ovur ii»acd in Enyknd, w« have not the words. Br«cton uJIh u* thm wakcfhl iii^to w«m i^mit i«vi>r it', and we may well btOinvc him. fnr Uie that wan lo Itu enforced was new and utartling. It waa tbis If one pcraun in difWiMK], that in, dispoaacMed. »f hia tODOomot unjustly and without n judgment, hv i» to h*v« mnedy by royal writ: a jury i» to be Bumroooed; in thm pnaenoe of ihu king'n juKticra it ia tu amnrcT thin Mmpip qan»tii«i abont seisin and diitacisiu ; if it givce thv plaintiff a verdici tn to Iw resluml lo hiji poHMMnion. We may stole tbe santtcr two other wayn : by the one wc may show what is beinff for our private, by tho other wfast ia being done for oar pabi law. ( 1 ) PomQSBian or seisin, aa something quit* diattDct [twnenhip or bi«t right, ia to be prolected by an unusually mpid remedy. (2) The soiain of a free tftnemeat, no nattv of what lord it be holdin. in proteoted by the king. Beraaftcr ia Donnexioti with |>ropeTty law we may speak of the pnTate lidv of this new remedy and of its rekilinn to the actio jpali'i of the canon law; herv wc have but to notioo tbe great priaeipto nf public law that th<' king han laid down. The uvnemhip of land may be a matter for the feudal couila : the king himself will protect by royal writ and inquest of ncighboun every of a free tenement It is a principle which in course of uan be maile good even against kings. The nMwt srordi of Magna Caru will enahrioo the forunla of the noivel dMMJain*.
1 rip- IloU, 18 Um. a p. OS: >pta U B». IL p. UM: -pM ilhMUim f^ila tmpa ^tfM^H. No dookl than mn wiiu oT MfllJT dkt* wUdi la twmUa tb> writ uf aonl dt«i*lida , m» Uiobm. IIm^ f^ l«i. ITO ; llualaU, OluunidM uf Htophaa •!•. «oL ik. f. suril ; IM «• • «a;Uilitg vUitb akum% Ih&l tfat flKMnI afdiaaaM at 'maim' mm «l ■ Otta llfie.
< Urutoo, [. IMbi 'Jilin Irii fslai^ls illwaiilHi M |>«r ■■!■■ iiiiin ii—Wim !■ ' *4MfttalaMrt tovsatask'
* Ohartir. inT. c^ U I ' < too ». >iaililiiir4iUWr»
••o...aU fw fa^b IsdMaa pwiaM wnn (•! t ->««| t»* hei Camfun Om fafwila of tk» mmU* • 8i U. latul* >c ua* 4alM« ■U UUtf> UuiKwata •am.'
I
Cfi. VI.]
The Age of Glawmll.
147
At some time or anobber iu bis reign Henry went furtliei' llw grind thA& thU. He decreed that no man need answer for his free teoemeot withowt royal writ'. He dccrefd algo^thflt in j^
action fr" hm^i *wi>***^>^« pn^^^ft^jng^ in t-h^ fim^al
•ojp^ the defendiry T^'^Ti **ip ' tfinffi"* ' m he waa called, might loved- into *'*^ MrfT*" *"""ft ftlT^ *he whole of ripfat detegminfed by the vftMint ^ qfiighhn^"' ^ ttie inquest bears the name of ' the grand ateize'/ It k a finr mora ao^n a&ir than the asoM of novd diBseisin and it fpeaks to the qoestion of beat right The term 'grand aaaize' mmki teem to ^point to some great ordiiunoe ; bat the thought oaBDOt bat eeeur to ne that the three' principleB which we have ban atated au^ have been anaoonoed, and l^t the inatitationg vAadi wen to maintain them may have hem fashioned, at one ind the same time. In every case we see the royal protection of possession. No one is to be disseJacd of his tree tenement UQJustlv and wiJLnont a judgment \ fli? ^"p iii l""^ 1"^ -^'fif^fil^"*^ '^^ hi.H_free tenement even by a judgment unless he baa been siirtinioDg'd to apgwer'by a royal writ; no one is' to bo forced t«j defend hia Bejain- ^f a frfi' tpiTRVP""^ \y battle'. The ordinance that instituted the grand assize was a one-sided measure, a protection of possessors. The claimant had to offer battle; the possessor, if he pleased, might refuse battle and put himself upon the grand assize.
Then to all seeming the council held at Northampton in Tbe taoM 1 1 76 instituted a second possessory assize, the assize of mort d'socestor. d'ancestor {asgUa de morte antecessoris*). Apparently we have the words whereby this was accomplished, though the practice of the courts soon left those words behind it. The principle of
■ OlAnTitl, xii. 3, 2S; Brunner, Schwui^erichte, 411. s OlanTill, ii. 7.
* BractoD, f. 113: *Gt Biont non debet sine brevi respondere, ita neo debet une iadicio diaMisiri.' Ibid. f. 161 : ' Nemo debet sine iadioio diBseisiri de libero t«nemento buo, dm respondere sine precepto domioi Regis oeo sine brevi. ' Bot. Pat. 76 : Kiog John sa;s to the people of Ireland, ' NolumD8...qnod oliquis
..voB posnt disseisire de liberie tenementiB vestris iaiuste aut sine iudicio, neo qood in placitam ponamini per aliouius breve nisi per nostmm vel iusticiarii nottri.' See Manorial Pleas (Selden Soc.), p. Iv. We know from GlanviU {ii. I'J) that the grand assize was established by a written ordinance : ' poena autem in hac assisa temere iarantium ordinata est et regali institationi eleganter inaerta.'
* Am. Northampt. o. 4.
10—2
148
The Age of GtanvUi.
[BE.
th« novel dMCtsiD in that one nuui. eTen though he cUinw and (M iK'tually hiut the nvrnunhip of the lauil, u out to turn anoiber Ruin out »r jMuwrnion without fint obtaiuing a judgment. The prinfijile uf the inori tl'ancentor ia that if a man has died iaj aoiHin, that in, poMurMMtoD of a tcn«nM*nt, and was not holding il u a meix) life-tonnnt, hit heir ]a ct\i\\\v<\ to obtain poeniaaioti It an againat rvcry other pt*rKoti, no umttrr ihnt imch petMD olaifni and actually baa a better right to the tund than th« dead man had. Such a right, if it exists, mwit be anwrt^l in an action : it in not to bo iutM<rtnl by ' wlf-holp.' by a iwisurv of the vwauil tenement. AnothiT nnd a bnavy blow in thu* Btnick at feudal juiitice, for the defendant in an aiaim of mort d'aocraler tft Ten' likely t«> \h^ the flc>od Icnant'n lord, who will havn ariard the loiiiU upon M>nie prt>text of making good hiji M-ignuruU
1 claims. Another uik< i« found for the ini]ue«t of neigbbimiv. the i]iiit>lion]4 whethtT the dead man died iMMd and wl the elainmnt in hix heir will In- deeidM by vwdieL
Scarcely leai int|Kirtant than liligntion aboat land ia Ul
' llie advowMiUM of rhurchejt- Hmry hju here! A.. -v.. .. .- -vuiiiBt the church that Bucb UtigatuiU bctuoga U» tempiral fomm, and an againit the feadaletica UmU it baUngk! to the king'ft own court'. A proprietary' action for an advowwoa moat be begun in the king'n court by royal writ, ' writ of right of advowiuin'i the claimant niuxt oflvr battle; hi* adrecwy may ehofwe between battle and the gruml aauae. Tben at tunm time or another during Iiiji reign Uvniy gate a pvaMaocy action, the aoriae of Harrein preaentaMnt (oaiiM iU ^t$imm prtseuttUione), which standii to the writ of right of advovveo IB •omewhut the name rvlalioo hn that in which the dotpI da dlAmlK to the writ of right for land. If the church ia and two pcnwus arc qiinrrclling aliout the advnwaoa, il U very naeeanary that Hoino prnvinonal, aomo poMeiaufy judgmeot ■bonid bv given. EHpecially niriiiaarj ia lki» aftar the I aU—n Council of 1 179, for should the chnreh remain Taeaat far a hm monlha the dioou«an biahop will fill up the varancy*. TWm principle of the new aanixc in, Kimply atatod. thia : * He who prawnted but lime, let him prvM'nt thia time alao; bat thia without prejttdioe to any queation of tight.* An 1bi|I
• Ommnmwi^l aS; Hiiiilw.a 1*4.
CBL vf.] The Age of GlanvOL 149
Iktsij ueighbours is suinnioiied to declare who it w&a that preseoted the last parson'.
r Thus the sworn inquest begins to make its wny into our
Didiuary civil procedure. In a proprietary action for land or for ftdvowson, the * tenant,' tte paasive party, tnay, rejectiuj; battle, ' put himseir upon the grand assize of our lord the kiog/ and an mijut-st wiJl then declare who has the better right. In four odwr owes a plaintiff may begin prooeedisgs by obtaining a TCjd wiitt vbidi will direct that an inquest shall answer a pKtiealar question fcamnlated in the writ. These four cases am the mfajeet-matter of the fonr petty assizes, (1) the aanise mimm, (2) the norel disseimn, (3) the mort d'ancestor, (4) the dvffvin pressDbnent It is probable that for a short while a Smt other cues were met in a similar &ahion ; but in a little taob we bare these four and only these four petty assises. Oi^ m theee four instances does the writ which la the first ■tcp in tile prooedore, ' the original writ/ direct the empaiielr Ui^ of an inqtiestb Trial by jury, in the narrowest, sense of that tenn, trial by jniy as distinct from trial by an assias, dowly tcanepB in by another route. The principle from whi^ it atarts is amjUj this, that if in any action tbe litigants by tfarar pleadings come to an issue of fact, they may agree to be bound by the verdict of a jury and will be bound accordingly. In course of time the judges will in effect drive litigants into such agreements by saying, ' Yon must accept your opponent's offer of a jury or you will lose your cause'; but in theory the jury only comes in after both parties have consented to accept ita verdict. An assize, other than a grand assize, is summoned by the original writ ; it is summoned at the same time that the defendant is summoned and before his story has been heard ; a jury is not summoned until the litigants in their pleadings . have agreed to take the testimony of ' the country ' about some matter of fact. In course of time the jury, which has its roots in the fertile ground of consent, will grow at the expense of the assize, which has sprung from the stony soil of ordinance. Even an assisa when summoned will often be turned into a jury (vertitvr in juratam) by the consent of the parties. But still trial by jury, if we use this term in a large sense, and neglect some technical details, is introduced by the ordinances
^i»j of Henry II. as part of the usual machinery of civil justice.
> OlanTill. xui. 18. 19.
Already befure the
(Jlanvill's tcjit*book.
proof by ^*\ip r-^ "hnii h«w*-jKith wii
end of hill rvi^n it HIU a Imx^ tpacc m The old inodca of pniof are put ahoUi^gjIj
cath-iiclpM* until 18831^ but fri>m thia moment oowanlA Lfacv are being ptubcd into tho backgnmod.
"' Cloaely oonuected with Um introduction of trial by iaqiMi$ ifl th« growth of that lyitani of original wriut which in ioaa to bdoome the grnnnd-plan uf all civil jofftica. For a loqg time pant tho king at th<' itiKlanott of complainaoU hftM tiMNd wriu, which cithvr badi.' thi-ir ndvorauim apprar in the royti eoart to answer the complaint, or else oommilt«d their oaiuM to Uw caiT of tho ffhcriff or of the feudal lord aod com- maaded that right nhouM br done to them in the ooaatj court or the leigDorial court. 8nch write wan wont to fiMaify with Monm particularity tho subject-matter nf thf* coaipUaM. The fihcrifr, for cxaniple, waa not moreljr told toeaterlain a foit which Uic abbui uf Abingdon waa brit^ging afuiwt tho aaa of Stanton : be waa told to do full right to the abbot in th* natlv I'f a kIuicc which, so ibo abbot altogad, had baao fanAflB by tha men of Stoiitun. Ab the king'« inWr&rancs haooniM moto fr«- qaent and more normal, the work of penning nich writ* will natumlly fall into tho bnadsof aabordiiwlo officials, who wiU follow prvccdenta and koop blank famia A elawificBlino of writ* will be the ootcome ; aome will be granted more or Imb aa a matter of oourK, will be frrmo </« rwm*. writ* uf ooutm , thoae which are directed to a feudal lord will be dintingniiAad from ihoae which are directed to a tlicriff; tboM whieb bid the aberiff do justice, ftom thoee whi^ bid bim fBiwirim Iha defendant to the king's nwa o(»urt ; thuee wbieb nlato lo th«
I
ownenhip of land fmm th< introductiiM) of the write a pacoliar dt*fii)i' have a new prucedun j , - , by carefully worded formulaM.
which n-laU lo debla, Bnt Um gieea to thii lyeHa
'i<l rigidity The aew adiiMi' -it4* to them and are gOTtfiMii Thua the firrt writ i»ued in aA aanae ut novrl diMKiiui comtnitMia Um ilMriff to •omoMn am inqueet io ord<T that tmt preeiw qnwlion mfty be aaawc Did ii unjustly and withtmt a judgment dineiee j| of hi* fre* ^] lenenMit in Jf wincr ih<* king's la»t junriH^ into NurmaDily fi At coontteM |H>int» an action tbne U*gun will dtftr
* KM. If <»M. Ul. a. M,
• BM. a A 4 WUL lY. a. <]. m. II.
Wf
OB. ^] TkB Age of GlanvUL 151
• fKOfnekaxy aetios for laq^ b^fon by a writ of rifi^tj both d Ikum will dBfer from aa action of debt, and even betweoi tiie levenl jw—waui^ aarizes many distinctionc must be drawn* m |»rtienlar aa to the number of ' esBoiii^' ezcnsea for ncm- i^^wanmce. that the litigants may proffn". Thus before the end of Heniy^ rei^ we must already begin to think of ngnd Joatiee— and this is becoming by fiur the most unportant Imd of "^jnstiofr-HM eonsistiQg 9I many varioofi oommodities cMh flf #itidi ia kept in a diffiwent receptade. Between these Ae wwUd^be Htiigant mo4 make his ohoice ; he mmt dioose an affiepnate wzft and with it an ap[Hoi»iate toirm of action, neaa waMa am exposed hr sale; perhs^ some of them may alwta^y be had afc 'fixed prices, for others a bargain must be rtiuuk. -Aa yat the king is no mere Tendcv, he is a manu- fiMtursr anl ean make goods to t^er. The day has not yet eosne rtea ih» niTention'of new writs will be hampered lij it 11 iilaiiiis nf a pariiamenl Bat still in GHanvill's day the juttiitim has already a considerable store of ready-made and Ei^^kh law ia already taking the foim of a comiaen-. UgfvpmwaU.
The aeeosing .jmy also has become part of the ordinaiy tim medianimn of justice. The first definite tidings that we get of J||^7^ it are somewhat puzzling. To all seeming Henry insisted, first for Normandy in the year 1159, and then for England in the year 1164, that the ecclesiastical courts ought to make use of this institution. Laymen ought not to be put to answer in those courts upon a mere unsworn suggestion of ill fame. Either someone should stand forth and commit himself to a definite accusation, or else the ill fame should be sworn to by twelve lawful men of the neighbourhood summoned for that purpoee by the sheriff: in other words, the ecclesiastical judge ought not to proceed ex officio upon private suggestions*.
■ Continiutio Beooenns, Howlett's edition of Robert of Torigny, p. 327: ' Bex Anglorom Henrioos ad Natale Domini [1169] fait apnd Faleaifttn, et Ic^b instituit at nnlliu deoaniu aliqoam parsoiiam aoeoaaret line testimonio vid- noram dicomioanentiam, qai bonae vitae fama laadabileB habereotar.* CoDst. Clarend. c. 6 : * Laici non debent aoonsari nisi per certos et legates aoansatoreB et teetea in praeeentia epiBCOpi...Et si qai taleB fuerint qni coIpaDtor, qnod non ▼•lit Tel non aadeat aliqnii eoa acoaaare, viceoomeB reqaisitaa ab episoopo faciet hirare dnodeoim legalea bomines de Tioioeto, Ben de villa, coram episcopo, quod ioda Teritatem secundum oonsoientiam Buam manifeetabunt.' With this ehould be compared Magna Carta, 1315, a 38 : ' Nullns ballirus ponat de oetero aliquem •d legem limplioi loquela ma, eioe teatibns fideliboB ad boo inductie.'
Henry aeuoui lo bo foreiDg thift rule upon relnctaAt jntfttoi, [» and at the mme time to be wnerting ihnt it ix an aDcienl rule. From tbu wo ta»y perhftpi infor tluU thi* s^iiodid jory. dcaorilied to a* bj R^no of FrUm. hail btt'n known in Nommndj' — il may \x, in ElogUotl kbo — but th«t of Ut« it httd boen ihrubt wido by a laxor prooodure which wa« \am faur ti* tho laiiy. Thia pari of the story muHt rvmain very obioarv'. HowtiTer iu IIOU the accuaing jury become pramineiiL la evftrv cuunty twrlva men of every boadred and foor ima of ovury tiiwiwhip am to swear that they will make tme aamver to the qiicHtion whethur any man w rrputMl to have bo«n guilty of iDurder, robbery, larvi'iiy, or barbuuring rriminide laiioe tb* king's ooronation. Thoee who aro tbus aocuaed ronat go Id tba urdeaL Ercn if they aiw aooo—ful thvra, even, that u to iay, though tho judgment of (Jt)d is in thi'ir favour, tboy abjure tho rmlra. Ten years later at Northampton a edge was given to this now wespoo ; forgery and aiaoa added to the list uf crime* (or which inquisition was to be nude ; the criminal who failed at tho unloal was to loss a hand beaide that fu^il of which thi: I'sriier unlinance deprived him. Tbe new ocdiiiAOoe wu to endttre during the king** good pletsoiv. Such inqufsta ware to be taken befon tbe ili— nut jnstioes of thtr king ; they were alao to be taken fay the shertBk and here we may aoo tho origin of those inqnisitiona into friue which in InU^r (ia}-« the sheriff makes twice a year as be lalna (^ i bin ' turn' through thr hundreds'. Every time that the jiBrtioas ans sent <m their rounds the king can at pleasnrs add lo tba
■ la sr thouv IMS Udkmi Otmmimlm Midi Mrtet ianawl m to iW «>» lis— fl» mad mania of tba lolljr. Ttw Ui^ immmj m (iiiblfc>Hia Is ik* i^M Ihsl b* «s« BM to tot* t««asBtttuM apua wUb ««■ to oMlfitoaaial at toi*^ ■Mtotao ■»»«. am frjnmt, ■wiw^, U. fM-«. MaUImv rWK Omb. Uh
if. S79, ^mlm sa tboafb Uw hUnp^ piiitorfli^ «m* I I hi
ksnh. Tfa* wnto i^aiirf I7 frjmtm ttU Iha «■> toto. fwmm tafcr dwL to III Ml ^nm 1 ■ at HmkH't wjwitoa af iW ffiMiHall «■ rf <
tha clionh toll • licht sAnd lo bar bj Uantjt, ^tmttj, a osbl to iliwinl ibat Iba elTtI povOT iboaU ftofld* bat ailb ■jMdal toriM. fm tba fSton ^ hmA to nir (Vna har ««s yaw. umI tba M«ta «•■« nta to W*« mimwamn m vin mit I7 Uwilatoi to oaa tba fiwJiw tt aaiswttuu H » s*eto«l toiMN of tltoMliai aisL As s toiMto of fiutmiun MMM to h**» baaa abMjr aaad wiUi ■■a<imiiwl BHttoim. aaab aa iba r«|>sir «f ibswbai uS or to Iboaa daa W Iba $mh mUtk, •4Bkto41/ laj >ilbto lb* r^ftoaa «« todntoMlMl iwfaiAkttoii.
' Saiait riHM in UMWtol Cosru (fUi^ Mm.). ^ uft^-unW.
CB. ▼!.]
The Age of Glanvill.
153
list of que«tion!i that they arc to put to tho jurors; in the next ceutury that list, the articles of the eyre (cujnlula itinenn), will be loDji and will be coustantly growing longer. Closely con- nected with the discowry of crimen is the agcortaiiimont of the king's rights Criminal justice is one source of revenue, but there are others, and the inquest may be used for their detection. From the verdiclK of local jun'oH the Icing collects t whatever iuformatioa he may require about hi» demesne laudit, J hia feudal rights, the receiptH of his sheriffs, the misconduct off hifl otiicer^.
There can be no doubt that one reHult of these various Htnctura measurea was Ut incrense at a rapidly accelerating rate the j(in,(»a amouDt of judicial business that waa transacted in the king's'*""^ name. The functions of his court were changed and a corre- sponding change in its structure became necessary. It waa no longer to be an ojttraorditiary tribunal, a court fur great men, for j^eat causes, for matters thp*' """'■^'•npf^ \hf\ king ; it wa^ to become an ordinary tribunalJur thw yi-hntr nnlm Muiy difficulties, however, meet us if we attempt to doHne the fitructoral changes'. In the ^mt place, we are tempted to nse tenoa which are more preciae than those that were current iu the twelfth centiin,'. In particular we are wont to Kpeak of the Curia Regis without remembering that the ilt-finite article is not in onr documents. Any court held in the king's name by the kings delegates is Curia Regis, Thufi thr inBlitutinn.of what in cuurae of lime will bo a uew tribunal, a Court uf Kiiuf's- Bench or a Court of Common Picas, may be tound in some smair rearrangement, some potty technical change, which at the moment passes unnoticed. In the second place, the form which his court shall take, the mode iu which it shall do justice, these aie matters for the king ; he is very free to decide them from day to day as he pleaiics. and this by a few spoken words. In the thin! place, we have direct evidence that Uciiry tried experiment after experiment*. He waa keenly interested in kbe work of justice nn<l learnt from year to year the lessons that experience taught him. Therefore it is but too jiossible that we may give tindue weight to this or that passage in a chronicle However, from the year 1 178 we hear that the king
* BtaUt. lotnMltictiun to Ov»i» llotirici. vol. ii., ha* ituwup^ tbw matlvr •t koglh. 8w «lao UuuikI, Feudal EnKlaiit). 609. 3 IhcMo, L 4M-5.
154
The A^ of GlanviiL
[bk. I.
iiaa ebcMn Av« men, two clerks and ihrM layrooo. who w« tiol to dopwt fmrn the king's cuurt liut ore to huar all th« eooi- pUiots of the kingdom ; qtu«tions that ihvy can Doi decaila ara to he nMorred fur tiit< king nud hta win nwn'. We faeni Heo the definite Mioctiun of a lonall number of moo who anr to do juBticc hahitiially. The owrt that they are lo hold Ja to ba a permanent and h ceniml cotirt ; but m raaanre of i'f^Ti li Iff
Mftmaiit in ^^ gttip anrt kia fvintK*«||«^ It IS Iin)hablo thai
we havr hen a BMuare of great permanent iinfMrtAiict.-. Fhiaa the fuDonring yean we begin to get rccordii whitrh aefm lo put before us a tribunal which in the main ia like that lucv deacrilNxl. It mta term after term ; uiumlly at Weainunalar,
I
TW««rtr«l
often at the exobequer. It i<« oonatituted bj the king** truatod adraera. There ia Kauulf OUnvill who in 1 IHO ehiof jutftadar. Then are the three fafnuus clerks who kaira served Henry well during thw Bern* v-trifi* with Bi<«ket. Rkhaid of Ilcheatvr, now bishop uf Wiochveter, John of Oifotd. now biabop of Norwich. QeoAvy Ridel, dow biifaop of Ely. Tbm ia (be treaaurer, Richard aon of Nigi'l, who ts to be faiillop vl LoodotL A litllt! Ulvr ihvre is IliiUrt. Walter, who is riaiaf to gmifnflM Some kymcn then will be ; bat earb and powerfid banoa an oootpioaoQaly ibaaoL Wa aan not fU Ibe number of the juRtieaa SoraatimoB tan «r iwelve will be mentioDed But the cimrt aertna lo hare, aa it were, a friag*; Um thki justiciar, the tmwurer, two or three biebopa, will usually ba sitting, while uthi-n come and go; suae of lhi>ni may be away uptiu circuita ; others who an Darned auy U* not jmrticoa, birt chumberlainii or Miners; and the king ia stilt making expeii- nicnt«, tiying now one man and oow aaotfaer".
Howercr, we may aay thai belan the aod of the mlf there is a |ierroaoent eenlnl iribQpal of |M<t«ona expert in the admiaiamiioo uf jnstioa of unworn JwtoaJ. li can be diiaia- gwahed from the eourto beMby um imMnat jnmiem. lor. > m though evtTV uich eotirt is cwria Aa^. this is aapsftaiw cwnis
I
' Qmtt lUartai. ti. S07.
• Sm BTtoe. lUMnf7 oT Omrj U. A food mu; • lus fmn sf dka ni^ an ipsrfaally Maf km^lii ta larflart Wiam, I. H. K. xiL »>.
•Map*. Pa Mi^ p, Ml: Mba, ^oanaa laaHMiai Amtel wmi t\ Vaad aa^idlaM ■anala mmmkmml al lairihli twa Plel
OH. tl] I%e Age of GkmvUL 155
JUgu^n It can be disfeingaished from the exchequer, for, though ifc<rfkeD 1^ at the exchequer, and though its principst justicesiv v31 be 1^ tiie principal barons of the excbeqao*', it haa a y } Mai cf its onra and may well sit away frc«n Westminater, y^
while the fiscal buainesj^ could hardly be transacted else- where'. It can be distinguished firom those great councils of prelates aod nobles that the king holds irom time to ttmeS questions too high for it are to h& reserved ^ such ooansilA^ Prubably it is already getting the name of 'the bench* and ilH juHt^iceH are 'justices residini^ at the benohV Though it is ct-frw Reffiit and capitolti c-iit-ia Hagit it ia not necessarily held cirravi ijuto liege. Appai*ently thi' writs that summon litigants before it, bid them appear 'before the king or.b^re his justicee,' that is to say, before the king if he happens to be in England and doing justice, and If not, tiMn before hia justices*. No doubt when the king is in this oountiy he will sometimeel pi^sidi? in court, but whether the justices will then follow thej Im^ in his progtcaaoo, we can not say for oertaiv; as a matt of fiwt during the last eight years of his reign the king's visit to Eagiand were neither frequent nor long. Westminster seemi to be beeoming the hcHne of this tribunal ; but as yet all its' arrangwnents are easily altered.
The visitation of the counties by itinerant justices hafl itinerant become systematic From the early years of the reign we ' hear of pleas held on circuit by Richard Lucy the chief justiciar, by Henry of Essex the constable, and by Thomas Becket the chancellor. In 1166 the assize of Clarendon was enforced by a party of justices headed by Richard Lucy and Hlarl Geofirey of Mandeville. In 1168 Richard of Ilcheater, Guy the dean of. Waltham, William Basset and Reginald Warenne visited most of the countie& In 1175 the north and east were perambulated by Ranulf Glanvill and Hugh of Cressi, the south and west by William of Lanvallei and Thomas Basset, while the king himself
seems to have be*>" jnnmpyiTi^ with other justices in his suite'. f 155] In 1176 to execute the assize of Northampton eighteen justices
' QUnvill, viii. fi. A fine levied before the itinerant justices always purports to be ' fioalis concordia facta in curia domini Begis.' Sach st least is the case in later times ; bat see Ronnd, E, H. R. xii, 297.
» Diftlogus, lib. i., 0. 4-6. » Ibid. lib. i., o. 15.
* OMt* Henrici. ii. 207-8. . <> Modox, Exchequer. J. 798-801.
* This is the asnal form throughout OlanvUl's book. ' Bound, Feadftl England, 5ia.
156
The Age <^ GlamXL
[at 1?
were cmplojotl and the countiy wm tlividud into six dmiiti; in 1170 twenty •oiir jiiHticiw were onipltiyi'd ojul tho country wu diviilt^d tnlu fuur circutU ; indi>ed fntm 1 17ti ouwards luuiUy A year wont by without lhi*re being a vinitaLiun of wovam part oTj En);lanH. Thtttw ilinifmnl juatict»i seem to bare boco chiody «m{doyo(l in bmring the plcaa of the cmwu <fiir which porpuav Um7 wore »qnipp«d with th« powar of ubUuDing acciualMiia from th« \iKMX juriuM) and in entcrtuining sunie ur all of Uw now pfl—CMiiry artiunK The court Ihul ihcy htild waa, aa already ■aid, atria titgu; but it wiu ni>t capttalU curia Rf^, and probably thrir pow«n wert' limited by the word* of a levipomy ooniuiMtion. llifv wore not nucowarily mcmbura of tho cenlial court, and they might bo summoned before it to bear record of their doiiigH* ; ftill it wah unuoI that each party of jmtioea should include nome few mcmbem of the permammt IribunaL Alao the eountiea were froiucntly viiuted for flieal porpuaoa, joatioea or barona of the exchequer being MOt there to aaHai aidti and tallages*, whilr the chief jiutioe of the fonrt ofton traTersed the land and afBictcd the people.
No judicial rolbt of the rei^jn have oome down to oa. bat during the Inat yean of it auch reoorda were being oompiled*. Fur uur knowledge of wbat wont on in the ooorUi we have attti Ui look to aniialifltA and biographen, and they are apt to givw us not the a»ual but the eilraordinary. W« dare net, (w1 ftxamplo, draw many general infercnoea about the oolistitutioa •od proeedirrc of the king's ooort from tJiat famous seene in tba eaatle of Northampton, in which Honry aad Badtnt wairr the prifidpal aetora. We aee, however, that, oren though the kiof waa angry and wan striTiog to crush oaw who h«d Uoiena his enemy, ht< did not vuutnre to paaa ju^gnwofc. To And the judg- ment at the king's mjueat waa the function of the aasnnblod prelates and aobloi, or, if the pndatea would not aid » the wwt. thoD the lay barooi would do h. Bean the doty uT pnnonneing the judgment was delegated ; It waa committod la the jii^tictAr, ihr Earl of f^ficrrtor'.
Another lifc-likc, if not impartial, Bt<Hy toQi of a gnat
■fctoainsMrftfwOiewatlill ■ gaa>. w «***-*«»<»■ W Mnal ImMtm ^atam af ia tW DtakfWs Uk U. a 1. aaj k*««
• Wfakm nuMiflMi (Matartak far Ufa <rf hmh^ U.^ P- «•
■nit betweeo tlio abliot of Bultle and the biahop of Chichester, another of a similar suit between the abbot of St Albans and thr bishop of Ltncnln. In both cases abbatla) privileges were urged against episcopal rights; in both the hitthop practically lost his cause ; but in both papal claims fvere involved, and the king, who had no mind to break with the pope, succeeded in bringing alHMit what was in form a compromise; in neither case therefort! was a judgment pro- nounced. In the one', which occurred in 11-57, the king sat in the chapter house of the monks at Colchester. Around him were the two archbitihops, three bishops, his chancellor (Becket), tho two chief justiciars (the £arl of Leicester and Kichard Lucy) and several other barons, while the hall was filled by no email multitude of the jieople*. At times, it would seem, the king retired with a few chosen couucillurs, the chancellor, the two justiciars, the cjinstables of Knglnnd and Normandy, a chamberlain and a clerk, and gave a private audience to one of the portiea. Some of the principal members of the court had openly and wnrmly taken sides before the discussion began. The justiciar Lucy was the abbot's brother, and played the part of an advocate rather than of a judge; the chancellor a\m had espoused the abbot's cause, and they and other members of the oonrt took counsel with the abbot while the case was pro- ceeding. The diitpulc b(>tween the abbot of St Albans and the Uahop of Lincoln' was heard by the king in the chapel of St itherine at Westminster in the year 11G3 He was suri-uundcd the prelates and nobles ; no less than thirteen bishops were present. But again we see the king retiring to consult with a much F>mBller bod j, which consiNtcd of the EnrI of Lcice^ter, Ricbard de Uomniet the constable of Nonnandy, and that expert clerk, Richard of Ilchester. Along with these he care- fully peniHcd the St Albans charters, and showed, so the monks Hiid, a wisdom comparable to that of Solomon*, for he declared thai the unficaled laud-books of the Anglo-Saxon kings were an g^Kid as sealed since they were confirmed by a sealed charter of Henry L In vain anuther of the king's conGdeutial clerks,
' hlKni*v, Common vcaJth, vol. ii. p. xxviii.
* Ibiil. p. il\ii. : 'popalique in»aper muUitudiae non modioa.*
* 0«*U AbbaUitn, i. lAO.
* Ihkl. IM : ' Quod in ttun iuTi>no n>K« uoii mioori uptenliae depaUitaio rat ^ood diiil, ijuAin ludiciuu SaUnuonU iulcr meivtriceit alleioaQtea.'
Geoffrey Ridel, dimurbud this privaU mmnuo. and miggMA«d ddbola in ibe ablxit a tillo ; the king turned him out of ihr pooin. The paUio seoboD was nearoed ; ibe king delimnd an a|iuuoo unfiivotmibie to the bishop — ' pririli^pa prvinu] ^ainai prcacriplaon*' — but odviaed a oomprumiw ; the biafaup wiafi— k d the immunity of the abbey and got aomo land in rvtoni for the oonfuanoiL On another occaaon the king sitting at ( 'Urendtai heard a rait U-lwM'n tho abbot of Battle and UilU>ft (k* BaJliol*. Thf JiiNticiar, Kicbard Lucy, vaa pnaent. but Henry took m prominont part m the diacnndon. maintaining the validity oi thu myal charion pmdoeed by the abbot and nreanng bj Uod'a eycn that Mich cbartont ooet him dear. Still t^M jui%- nip-nl waa givun by the unaiiintitu* oonpmt of the whole lutfi. Short of proclaiming hi» uyn will to ba the iai^jmecl ef hia cotirt. tbara waa bttie tnat hr could nut or wuul<l n«.t «!» h\ ¥rmy of mntnming all thr iMHtirn thnt wnw done Jn hia Daa>a. Donngthi' I'wiy y*mn* wf kw n-ign. though he w» abroad and' though he had loft • joaticiar in Bngland, bo maintoiiwid tbit ooQtrol. Thr nbbdt of St Albam mmt all the way to TmdouM.- for a wht duvctuig the Ju»Uciar to rehear a caar, in which, in eonaaqnanoa of lh<' abboi'a deliuilt. oenain landa bad baaa at^udgcd to hb advenary. Hv btui to pay (be beary mum <4 a hundrvd pouodii for that writ, and nrtainly it waa uf dq ordinary kind, far ho had floomed to appear in a court bald by a OMsro juatjaff*. But *v«a for ordinary write man bad u goafanaKL iiMitr T^ cttrioaa atoiy lold by Richaid of Aiieaty baa ^ been retold*. He waa claiming aa hoir to hta uncle
IwdB of which Habal of FrancheviUe;, vbon ha aaairtwl la ba illagitimate, waa in poananon*. Ha bad to bogU by MiiiJiag to Nurmandy for tbo king's writ ; aooa aAer be had to acod far another writ directed to the aicbbMbopi, ainoe Ibe qMW*iy of baaUnly would be tfUMonittrd to tba enrlaaiailiml flourt. Tite litigation in the ■pirituml forum waa tedioaa ; ba was adjouraod from pkoa to pbK*. ftvm iDioth to mouth. The king
n
I
Wartow, rtaiil*. ITL
Hri|4M«L*
> Owta AMstvn, i. UV-IM.
* Pftlcm*^ OMwaoavwOlk, raL fi. p^ v.-mlL.i Wailnw. riMilA, til ( Owrt IMm tmim tk» fli ai^pam i IUUba«. U Q. R. ttlL Ul.
CH. TT.] The Age of Gmnvm, 159
the army for the expedition to Toulouse ; Richard had to go as f.iMf] &ras Gascony for yet anothw royal writ bidding the archbishop
• proceed despite the war. The litigation went on for another year, during which he appeared id the archbishup'a couil on name ten different occaaions. Once more he had to %Tsit Prance, for he required the king's Hceiice for an appeal tn the pope. He sent his clerks to Rann? and the pope appointed judges delegate. Then his adveraiiry appealed, ftnd again he had to send rcpre-sentftlives to Rome. At length the po|>e decided in bin favQur. Thei>L.'upon the case came back to thf royul Murt and week after week he had to follow it. The king appointed two justices to hear his causc, and at length by the ktog's grace and the judgment of the king's court he obtained the wished for lands'. Many coninieuta might be raadiL' upon this ftfcory. It will not esca]>e us tiint in chfse early years of Henry 'a reign royal justice is still very royal indeed. Though the king has left hm justiciar in England, there is no one here who can issue what we might have supposed to be ordinary writs. A great change in thig most important particular must SDTjn have taki^n place. The judicial rolls uf Richarrl L's reign are largeiy occupied by accoiinta of law-suits abont very small pieoea of ground between men of humble station, men whu could not have laboured as Anesty laboured or spent money as he spent it. But throughout his reign Henry took an active shfue in the work of justice. Even when he had appointed indues to hear a cause, tli^y >yf>nlVn>rivJat. f,f^p pnccessim iitigimt to wait until a judgment could be given by the king's own^ mouth*. He was at heart a lawyer, quite competent to cnticize
"m mutely the wording of a charter, to frame a new clause and give his vice-chancellor a lesson in conveyancing* ; quite willing on the other hand to confess that there were problems that he could not solve*. No doubt he sold his aid ; he would take fpfts with both hands ; he expected to be paid lor his trouble. Tf^crtlH jiiafj^jy^ but it was a better article than was to be had elsewhere.
■ Pftlgnre, p. Izxxiii. : ' et tasdem gratia domini Begia et per iudiciuni coiue Boae adiadieaU est mihi terra avunoali mei.'
* Bigelow. PlaeiU, 170.
s PalgraTe, p. Ixxiii. ; Bigelow, Placita. 322. Mapee, De Nngis, p. 227 : ' In l«gibiiB eonstituendia et omni regimine oorrigendo disoretiu, inautati occultiqut: iodicii HibtUu inTentor.'
* Bigelow, Placita, 289.
M
160
T%e Agr. of GtatunlL
r«
Wdter Map ha .h how in tha enebaqver a poor wmn
obtaiued an cxpediUoUB jurlgmeni ugaitut a rich anUigoiust. Of ihia aa of A marvelloua thing bo nfoke to lUnulf GfauviJl. ^ u Tea, mid the josticiar. we are quicker about uur boaiiMs tbui your buihopa an. Very true, replii*d Map, bnt yntx vouM be m» dilatory aa they am if thf king wen* an far away frum yoa ■• Um pope ia from the bi«hop(t. (ilanvill itmiliHl*. And than Ifap tella how all wbn had a good caiiiw wiahed that it migfat eane bcfure the king himacir, and he recalla a great day in the hictory of Kugliah law. tho day wheo our king'a ouurt eotcr- taiocd a pica between the king of Castile and the long Navarre*. Certainly thia wan oo nwaa event; the kings iif the aouUi bad acknowledged that there waa excellent jualioe to be had in £uglan«], and if this waa ao, to Henry IL Um praiae ia due*. In the middle of the nest oentary Henry III. had qnamUed with BrMtan's master and patron, Biiduip Wtlbani Bata^h, and a proposal was made that the dispota abonkl be referred Ui the legal fiurulty at Paria. Raleigh rejectrd tliia plan, nayiiig that there were good enough lawyan in '^g*«'r<. and that time was wheo the greatest prinoes of the safih robmitted their cauMa to English hwyert*. Thia not boN^lt*^: Henry 11. had made it tnie.
Altur many caperiments he ooumittod the ordinary woft. of justice to a eowt of expena. to a learned eourt. It waa weB leavened by la^-mfm ; a layman praoded over it ; thera waa no fear of ita nuwkly aoorpling the ncDano^anMiieal sjMcia; hM among it4 moat activr mi;inbef» wtn great clerks, and the htgb rank that they bad won. for they bail become biabopa* weald bavo made tlinn infliu-ntial mcmbiTB. oven bad they baea la» able than thi*y wen*. Hut thry were able: We speak of suck mt-n m» Rirhard uf Ilchcstvr, John of Oxford and tieodh^ Ridel, who hod lived in the bug* world, whit hail brm in France, ikiMany, luUy. who had aeea men azkd citica. pupe •ad aoipcmr, and had written the dia|tlchta of a |»iaoe whuaa
• Wapm, ri» Ni«>«. p. til. • AM. f. MS.
• A Ml •'^tM of III* OM tatffvn •■ <l«to ttilifW, I. U»-IM. wmrm-'.ii «««ill, Uwt Uwn »m bwvaa 'taliraaliiMl wUtnUlaa' •■• ■— 4a«lwl vllk *U Um tmiPiXaaily at • l»*«Bit, ani Um a*w4 «•• «i| hami B|^« a raU nf ptmiutt. Kaeh ml Um kmm «lMnp4 tW otkm vwa hatiac «ti>*sfWl7 dnynnwij Wiwi of Mrtaia Wnd^ X«tlhrt imttif Uw alanNL Tk» ^at^m% k Ikal waa aiwrt tmmtn wbat b* km latea.
• riyaw, »■■! Ii. U. M% tmm MULt^M H^a. IIL
i
poJicy WM at work in every corner of Western Chnstendom. Very different were they from the English judges of the fourteenth century. Law nnd literature grew up togother in the court of Henry II, Ro^er Hovedeu the chronicler' and Walter Map the aatirist' were among bis itinerant justices. Law becomes the subject of literature in the Dialogue on the Exchequer and the treatise ascribed to Glanvill. f.uo} The Dialogua de Scaccario b an ftnonymouB book. ^"'^SftL U there can be little doubt that we are right in itscribing it to |™ Richanl Fitz Neal : that is to say, to Richai-d the sun of that Nigel, bishop oj Ely. who was the nephew of Roger, bishop of Sftlisbury, the great minister of Henry I.' For three genera- tions, firflt Roger, then Nigel, then Richard, held high offices in the king's court and cxche4aer. Richard himself became tTeasiirer in or about the year n58; in 1XS9 he becftme bishop of Lt^^ndon, bnt he retained the treaaurership nntil his death in 1198*. He was a well-educated man, knew something of the clu.4sical Latin literatui^, had heard of Aristotle and Plato, could make a hexameter upon wcasion, and was fond of the technical tenns of logic* ; he acted as a royal justice ; he wrote a history of hitf own time, the lost Tricolnmnis" ; but above all he was a finanner find knew all that experience and tradition could teach about the history and practice of the exchequer. He seems to have set to work on his Dialogue in the year 1177, and to have finished it in 1179 or thereabouts, when already for twenty years he had been the king's treasurer'.
The book stands out as an unique book in the history of Dialogue medieval England, perhaps in the history of medieval Europe, chequer. A high officer of state, the trusted counsellor of a powerful king, undertakes to explain to all whom it may concern the machinery of government. He will not deal in generalities, he will condescend to minute details. Perhaps the book was not meant for the general public so much as for the numerous clerks who were learning their business in the exchequer", but
> HoTedeo, ed. Stabbe, i. p. xzi.
■ Eyton, Itinerary, 265.
' The book has been fnlly discnssed by LiebennaQD, Einleitnng in dea DialogTiB de Scaooario. It is printed by Madox in his Hietoiy of the Exoheqaer ftcd by Stubbe in his Select Charters.
4 Iiiebermann, pp. 83, 42, 54. ■ Ibid. p. SI.
• Ibid. p. 66. ' Ibid. p. 10.
• Ibid. p. 96.
P. M. I. XI
I
L62
Th: Age tif OianvHl
[BLIr
GbfeTflL
•till iKkt Mich A book ihoiild Ih; wriUvn, U une of lb« iraodcHbl ihiufp) nf Henry 'n wontliirful reign. Wo ma^r mfvljr wmy UuU it wu Dot (rtiblutlxHl wilhoiit the k)iig'« licettcc, lUid yvt it expoM* to the light of <!»> iiiah^ thitigv which kings ntul minijitttn mn woDt la tniit AH wili'mn myvtirritm df bIaUi. Wo ■huukl know hr Biaro of the htntory of gDVcmttivtit ibaii over will be kaown, ooold wo havr a DiaKiguo on iho Cxchiiqiivr from aVMy ccDiury ; but wv hare on« only, and it oohms from the reign of Hcnrj tL Henry wu bo atroog th«t hL' had nathiiig to d^ coDc«U ; hi? could stttDd crilictaro ; bis will and plewmr* if properly Gipluned to bis subjcscts wouM appoftr «» uminisMs, find At Miy Ditc would not be rmistcd'. And «o hi« ircaMirrr cxpnnndt'il the course of pruOiwdings in Um «ichvt{uvr, Um curutitutiiin uf thiii finucUl board, its writs and its rolls, th» vArinttii ftuumM of niynl tnronii% tbi* dan«gi-ld and tho inunliff fine, the collection of the debts due to the king, the insUiaaiii of hi* di-btopa, sod, coming li> details, he described the cheai* hoanl Aiid the cr>unt(*rv, the tallird. the scsJos and the OMUin^ puU But fur him, we should have known little uf tlia ad- niiiii«lmtive and 6«cal taw of his time or of lat«r tinsas — for tiia rolls uf the exchequer ndly oued a coninii'Otanr — bat, as it a^ we nmy know much.
What the trvoMirer's Dialogue did fur adrainislrmtire and fisoal law wa» done by another book for private and chnuaal law. That biMik has long beiMi stlrilMjtcd Ut *ic>e whii bekl a yet higher office than the treasurar's. to Banulf CJUnviU. ibe chief juHticiar.
Ranulf GUnrill* csme of a lamily which erer sinoe Um Cosuiuost had held huids in Suffolk ; it sras not anmag tha wealthiest or most powerful uf the Nomiaa bosMs, bol was oeitbcr poor nor insiguificajii. Prolubly for somi! iiwr baftm 1163. when be was made sheriff of Yorkshin, be had bee« in the king's surrice; be had lately been one of those 'friemK helpers and pbiaden ' who had aided Richard of AiMoty in baa fiunons taw suit*. The shrieTalty of Yurkskite
> tiUl.lLc.lli * U>lu •«>«» M HMMUM. tiMt 4iatafls siate siiUtaU Mr«ii4H ridMsr, miimum at mth 1(«M SBWpwitsMl ' nifL & «^ U: 'Praf^ satsowii asB«U» art gsl wgliB ■aatlllsMael, ^oss pes ka«o pad* ti,4Att«M
I
• DM. VM. tUm^^.
' rsivsfii. Ci—iwwuih. u. ^ mil.
I
CH. vl] Tht Age of Glanvill 163
that Henry would not have besttiwed upon an untried man ; Glanvill held it for seven years. la 117+. being thpn sherilToi' XADca^hire aud custodian of the honour of Richiiioud, he did a aignat service to the king and the kingdom, Ab a critical momeat he aurprised the invading Scots near Alnwick, defeated them and captured their king. From that time forward he was a prominent man, high in the king's favour, a man to be employed aa genemi, ambassador, judge aud sheriflr. In LISO lie became chief justiciar of England, prime minister, we may ny. and viceroy, Ht^nry seem-s to have trusted bira thoroughly and to have found in him the ablest and most faithful of aervanis. Henry's friends Imd of necessity been Richard's eneioies, aJid whi-'U Henry died, Richard, it would seem, hardly knew what to do with Glanvill. He decided that the old statesman ahoulrl go with him oa the crusade. To Acre GLativilt went and there in the early autumn of 1190 he died of aickne^a.
Whether he wrote the book that has long borne his name is TntrtaiM ft doubtful question. Some words of thu chronicler Roger hat. Hovedeu, his contetnpwary, may mean that he did write it; but they are obscure words'. On the other hand, the title which it generally bears in the manuscripts seems to imply that he did not write it. It is called ' A Treatise on the Laws
' Hovedea (ii. 215) ander the year 1180 saya that Henry appointed as jostioiar Ranalf Glanvill 'oaiua sapientia conditae aunt leges aubsoriptae qnas Anglicanu vooamiu.' On this there follow (1) one set of the Leges Willalmi (HU intimatur), (3) the Leges Edwardi, (3) a genealogy of the Norman dukes, (4) an Expoiitio Vocabuloram or glossary of A.-3. legal words, (5) the treatise in qaestioQ, (6) certaio aasizea of Henry II. We may regard it as certain that OLuiTill did not compose 1 or 3 ; also that the man who oompoaed S did not compose 2. The qnestioQ remains whether Hoveden's ' oondidit leges ' oorers all this legal staff or is specially attributable to 6, the treatise on the lege$ Anglieanat. In the former case it must bear a very vague meaning) it can mean little more than that Glanrill administered English Uw in aooordanoe with thoae documents which Hoveden is going to transcribe; the phrase is hardly better than an excuse for the introduction of a mass of legal matter. la the latter case we still have to ask what Hoveden meant by 'oondidit leges,' This would be a strange phrase whareby to describe the compilation of a treatise. In the ooatemporary Dialogue (ii. 14) it is used of a legislator. The treatise undoubtedly sets forth the law as administered by the royal court under Olanvill's presidency. Hoveden, so it seems to us, means no more than this. It is fiairly certain that Hoveden found 1, 2 and 3 already hitched together so as to form a whole, which Dr Liebermann calls Tripartita, and not improbable that the treatise known to as as Qlanvill haj already been tacked on to this Tripartita. See Liebermann in Zeitsohrift fdr romanisobe Philologie, xix. 81.
11—2
i
The Age of GfanviU,
D
' lUttlMd, OluTiS HvviM^ Ramri U» Ivr^. «L L
• Tlw Ungof Uh tmktogttp la oMomI^ Haw?. la lA. *U. c L ■mU to • rt«)r4 e< 81 OetobM, lin.
> lUpM. Da Xiwk. p. i.
• AMofdiiNI lo B^tuo, lUaatM7. »i-1. (UM«tn «M to JCinh niiUl Ju* ll«»i ba iha* onoa l* Ki«l«iii to Urj %»oofm »m4 -mtm to Fnw* acaui la iol/.
• Thta I HIP mill li «M I* • pMiMi to BMtoa (L IMh). H*U ft MMiiy ■Iter Hi*«1 Walter^ 4mK tfcirtw. wWito* to sImv h*v Mftl It to tot • pUwiir to nalM ilrtalM to maam» akoatm m aaamflm hi* nm ■■■» aal tlvl «f Batoat Wftl«v. )(«• Ika una * BaWtoa WalNri ' »*« feM Mi4t7 m OMOWHa —a. to «M a nuM of aa ata«ihg|7 SMMMMa ktod- ' ili AUm WdHfi' «mU •( ooam to ft MMa «t dka niii ini l Itmi, k«l uaia>w« af llw *ittaa* U, aMM^ mmi u< gilU toilK •■ atowa*
ood Custonift or England compcMud in the time uf King Henry Uw Second while the hnnouniblc (iUustri* rir) Ronalf QUarill bold the helm of juRtice ' ; but we caq uul bn crTtAio UuU ihto title in H old u the book. Such a title would suflkiaadjr eiplnin tbr fact that tn the thirteenth centufy thr butk waa alnadjr known as the 'Sumitm ^nme voeatnr tilaunvilc*.* Fhwn intonml evidenoo we mfi-r thai it waa writtai bcAm Henry's death, that in before the (tih of July, 1 1KD. and yvt that it was nnt oompleted before the month of Noretnber. llt(7*. Certainly we oin not aay that Ulanvill waa incapible of writing [^u it, for, though a book written by a layman would at ihta tune have been an extremely rare thing, we know that Olannll was nut illitcmte and crmUl pan reoiarka on the iUiteney of the Bngltah gentr>-*. It i> a more aetioua obgedion that durii^ the stormy laiit yeitra of Henr/a reign the Euthful and hard- worked juBtidu- can bare had bat little leimirv far wrifcing books*. To this we muaC add that the author of Ibe trentiae writeR, not aa a stateaman, but aa a lawyer. He speaka not m fine in authority, but aa one who ia keenly interested in tlw problenM of private law and civil procedure, and ho is noi ftihamed to ooaSem that he rmiaea mm qmatMoa than be laui AQfwer. He fecb the iinpube of •eientific curiociiy. fio donbi Ranulf Otanvill waa, like hia nuuier, a many-aided man, but kia life waa very bu«y, and we can uut but think that Mich a book ati ihia came fr<»iii the pen of aonie derk who liad time br reading and for Juriatir »peruUtiooa. We abonld not be aar> priaed if it were the work of GlanWtl'a kimman and aeeretarf, Hubert Walter, who in hia turn wai to beooae a chief jus- ticiar*. The questiod ia iniarerting rather than importani.
I
•
CH. VI.] Th^ Age of Glanvill.
for, though we would gladly know the name of the man who wrote our first classical text-book, it is plain that be was one who vfus very familiar with the justice done in the king's court during the last years of Hent^' II. We may go further. we TPay wfely say that it was not wntten without Glaavill's permi-ssion or without Henry's. I»-l*C The writer kuew something of Boman and of canon law. itflnmuaoa Perhaps he had read the Institutes ; probably his idea of what m tho a law-bcxik should be had been derived from nome one of the '''^''^''^' wnuy small manuals of romano-canonical procedure that were becoming current'. He does not however adopt the arrange- ment of the Institutes a& the plan of hia treatiwe, and he can not have followed any foreign model very far. The first sentences of his book are a good example of his method; — ^ ' Of pleas some are ciTJI, some are criminal. Again, of criminal pleaa some pertain to the crown of our lord the king, othere to thb aheriSs of the conntiew. To the king's crown belong these: the crime which in the [Roman] lawa ia called crimen laesae trutdestfttis, — aa by siaying the king or by a betmyal of his peraon or realm or army, — the concealnient of treasure trove, breach of hia peace, hotaicide, ai-son, robbery, rape, forgery, and the like,' We have but to contra^'it these aentences with the pa- rallel passages, if such we may call them, in the Leges Henrici to see the work of the new jurisprudence'. The dilemma ' criminal or civil ' is offered to every plea. This is new and has been foreign to English law. In the disorderly list of the pleas of the crown a great simplification has been effected : homicide, for example, is now always a plea of the crown, and we can finish the list with a 'si quae sunt similia' which leaves scope for rationalism. And yet the materials that are used are ancient ; the terms which describe the crimen laeaae maiestatis
nurk of a partioalar family, that to which the great arohbishop belonged. BrsctoD therefore eeems to be choosing the rare name of a man who haa been dead these fifty years. May be not be coupling with his own name that of his only predecessor in English legal literature, whose book he has been constantly nsing? However this is no more than a suggestion. For arguments against OianTill's claim to the treatise, see Hunter, Fines, i. p. xt ; on the other side, Fou, Judges of England, i. 181 ; Liebermann, Etnleitung, p. 73.
> Much first<hand knowledge of the Roman texts is not to be inferred from an imitation of the openiug sentences of the Institutes, from the oconrrence of soeh phrases as 'qaodprincipiplacuit,' 'melior est conditio possidentis, 'or from oocaaional allusions to the * leges et canones.'
■ Leg. Hen. c. 10.
inft
The Aye of OlanvST
[bic I.
ore rooted in th« old law. And so UiroDghoafc: w» hiife no raucm to nupeet thAt the writor in giving lui hi» tiMoricB intlMd of the* practice of the kioga court. Wlwt bo has boimmod from the new juruipmdeiws ooiuista ftnt nf a few gmmrnl diatinetioBS, snch aa that botwoen eriniiiial and cavil pleaa. that bolWDco poaifwiniy and pmpncUry actiooa — di»- tinctioiu which are already bccnminj( well marked oatlinea in the procedure of the Tujni ctiitrt, — and eecuodly a lo|pcal mothod which wo may call dilemmatio. We have to oouicliar — fiw uataraU)r pnic«.*dure ia placed in tho fi«ofiroat — how mi action i» carried on. llie defrndaot 'u inmiiioiwd. Either be appean or he doua not appear. If he dooi not appear, either be scnda an excuse or ho acods none. If he eenda an cicuee, it HiUMt be uf thiii kind ur of thai:— and ao lurth. And at every turn tho writer has to consider the wording of tboee royal wriu that are becoming the sk«lptoo of Kngliab law. Substantive law come* in inctdeuuilly. and wu are allowed to ■ee that Numu very elementary problema are ttill unnilved. Tor f-xantple, that Minplt* prublfm in the law ttf priuogenitaiy inberitnucf which ua KiDf^ Richard'a death will be ntaed fae- twcoD Juhu and Arthur'. Again, timra ia a groat deal «f enatoniaty law admiiustoird in the local courta of which be ymAmw hk igoenncv*. Old rule* about awr and iHU aad M may still br lorkii^ in uut-of-thO'way pboea; bat bo aya nothing of ihem. He hts nothing of the /<^ Sadinardi and betrays no acquaintance with those books which have pnrfeM* d to set forth that ancient system, lie in coaeerDed only wilb the 'chief or 'prinripal 'oiiurl of our l^ird th» king, and jiM& bManae that ooort it nkaking a aommoo law by way of ■■BiBfy OD royal aaaiea and rajal wriu aad ia dhI hampered by coslon or evon by precedent, — br aa yet wa have no ciution vf [»rceedentB, mi 'ease Uw'— he ia abia la write his laciil book. It became popular. Many manoaoripta of it are yet extant Sownly ymn after it was written lawyeta went still UNog it and etidravounog to bring it op tn dale*. Someone was at pains to tnuulate it ftom Latin into Franeb*.
> OkDTffi.Tttl. •QltafOl.lVekcas: iU.t: sit.t.
* Msilkad. Ofaaffn Mt^imi, Banwl U> B*t«i«. vl 1. A mmmA ea. •( ma nnimi OlMtOI t> pnMm4 M Ckim Cdk**.
• Dril. Mm. n. t*iii4. 467: lU ttwwMor «U1 (i*« Um IMI *W aa MBSss nvsnu Mac rjm* ' i Osiuk U^lt. U L It, C Ua 1W iiniB tft Otmk. Uahr. Ks. L 1 Is fsftly la I.«ua, putljt Is
en. VT.J Tfie Agi' of Glanvill 167'
A version of it known as Reffiavi, Afaiesttitem became current in Scotland*.
We tuny fairly aaj thftt under Henr}' II. England takf^a for English p i4«J 4 short while the lead among the states of EtiropB in the oeatiiienul protjnction of law and of a national legal literature. No other prince in, Europe could hava enforced those stringent aaaizea, and he cowM iiot have euibi-ced them in all of hia continental dominions. The most in the way of legittLation that a king of the Fn-nch could do, the moi*fc that an emperor eould do in OeiTOiiriy, wits to make for the maiiiteiianeG of the pea,ce rather a treaty with hia vassals than a law for hie eubjetta". No one liiul been legislating since the last Carolingians isatied the last eiipiiulunetr; law had been taking the form of multitudinoua 1u*:a1 customs. The claims of the renovated, the scientific, liiimun law were nnbounded ; but north of the Alpa it was only beginning to influence the practice of the tempoml tri- bunals. We can not call Olanpill's treatise the earliest text- hofik of feudal jurisprndence, (or parte at least of the Libri Feiiilanim, the work of Lombard lawyei-s, belong to the first half of the twelfth centuiy, and Bome parts of the Assizes of Jenisafem, though not in the foma in which they have come down t*i us, may be older than the Englit^h book; but in the production of such a book England stands well in advance of France and (Germany'. Moreover it is noticeable that in France
* The Regiam Maieitatem is collated with OlanTill in vol. i, of the Acts of the ParlumflDt of Scotland. Neilmn, Trial by Combat, p. 104 : ' Either the Begiun was compiled in the first half of the thirteenth century, say between 1200 and lS30...or it was compiled from materials of the law of that period.* Olanvill's Treatise was printed by Tottel withoat date about 1554; later editions were pablished in 1604, 1673, 1760 ; an English version by Beames in 1812. It will also be foond in Houard's CoutumeB anglo-normandes and in Phillips's Engliflche Bechtsgeschichte. A new edition is wanted.
' What is accoaoted the most ancient ordinance of a French king oomes from LoDJs YII. in 115S : it establishes a ' peace ' for ten years : Viollet, Histoire da droit civil francs, p. 162 ; Eamein, Histoire du droit franijais, ed. 2, 488. From Germany also we have as yet merely LandfriederugeteUe which strive to set limits to private war: Schrdder, D. K O. p. 628.
' The Libri Feudorum in their present state are a composite work, some parts of which may even go back to the last years of the eleventh century : an edition by E. Lehmann is appearing in ports. See Lehmann, Das lango- bardische Lehnrecht. 1896 ; Schrdder, op. cU. 668. The Assises for the Goor des Boorgeois were compiled, it is said, between 1173 and 1180, a few years before Olanviil's treatise: Viollet, p. 170; Brunner in Holtzendorff's Encyklopodie, p. 310. The Assises for the Haute Coor are of later date.
i
[68
The Age of QUmvUL
D
«iii«d
the provinces which arc the fint to come by vrittpn Rtalrmente of their law arc those which have boon uiitlcr Henry » away- Koivmust HtaudA Nunuaoily. which in or about the yew 1300 haa already a brief writu>n curtamal. Normandy wberv ex* chequer rolls are ocHnpiU<d and pranrved, and whorv Lbv judj|- menta of the duke's court arc collected by lawyen; aiwi it la not irapoHKiblc that the M-cond pIiuTu must \» oooemlvd lu Tounine or Aujoo*.
It b a well-knuwu ductrinv n«*i yet obaolele ouuiti^ tu thai our legal memory is liiitiU'<l by the dat« of Riehard I.'a wcuna- tioQ. The origin of tliiM dnotniK* ut to bu found in mrtauk Atatutcn of Edward I.'s ivign*. Probably ll)ii» dat« wat Umb chotfcn because it waa jupt pDwible that a living maa ihoald b«TD been told hy bin fitthcr of what that fiuher had wtra ta the year llhO, and in a pntpriclAry artii>n for land tba dfr mandout'a champion wa» allowc'd to »|M.-ak uf what hia U»hm had aeeiL And yet hod Ivlwan) awl hia parlianMot \mn concaroed to mark a boundary beyond which the history of BngUah law could not U- jtro6ubly traood tor piacticskl pvr- powa. they could hanlly have hit a{Kin a hotter data than Xhm 3nl of Scplvmbttr, 1189. The rentleas Hrury hail gotw to hia rest; hia reforms vera b^inning to take effect; oar fim clytaaicat text-book had jnat U-en written ; the abOBg eenlnl court wafl doing juiiticD term after t«rm on a large wale; it was begimm^ to have a written memory which wnuld ebdarv far
> Tbs MMM nolabU trvtuOt law Wek* an (I) lbs Ant part (BnuOOT** TMa MXMna* aoolaa*} of fTanUr*) Trii ■tiBJi <o«t— far 6» itantmmMm, mm- fOtA aire. UDO; («) tb* mmmA pari ot lb* mm* work, cir*. ISM; fti ite Oraod oootaaikr d* Nmaadta, win. 1S4~« lm» Tuilif* «UiiMi)i (^ a eaitMMl of Aafoo, UUi (0) a cenaaal of Um OvMaaaU. bvaitlM arrt ImM tf tk« lUrtaralh sMtaiyi (^ IW m-mIM 6ilillM—rti 4a ««lat tmh (*a. UTS), ■ toit-book wUoh tokM op inui iutU Itw vovka kva ^migutti m 4 tmk A; (7) Um CoomU d» Pton d« KirnUinM, eirc ItM-*. Inm Um V<
d
bifUjF iMnaiMl i (>} lU Un« d» JwUm •« Pbl tnm IW OrUaMto. atn. tXM; (•) Bnanaaoir'* C^nagm «< Clinaoal la Uw BMavoia^ talfthal la ISA Bo IT mill, (f. rit T«MU; VkiUM. 07. rlL ITI-m. la H imiij Ik* Ant U«<boak b tbi flirtiMBiyteiil. 19U-U; tichrMOT. «f. ril. MtC Tkte «m men fello^U by Uw D— Habiin|iiieil ami Uw iJ-mUmJ Mnn 1 1 ii i^l^ , llh> by ao — ■■< la^oarfU* iku ih» itowlupawai ef rtsMk lav !■ «a«al «w HiU"!-!^ kp lb* lirfihaw «r adafalMiailw aHtoiv •< H«iT» D^ ^ Hwmilr aad CooM of Aefoa; Um pimatim of Mi^teg |Im mb* to
aotwaidi bmaa XorBua4r and vtUi II lh« iwrfM «f evwrf MaoHl ^a JaMHartwiB. p. MS: *l'aMs» 4m loofaMn 4'an«b. 4 ■w<i • Ta tba mmm ■•«<. twida. tfk rU. TO.
•Btoi. Wnl. L<tt7C)«.Mi StelMa ol Qm Wwaato (llia-«0>.
CH. tl] The Age of Glanvill, 169
all ages in the form of a magtiificeiit aeries of judicial records.
Our oxtant plea rolls go back to the year 1194, the great
s^rieu of the ' feet of finca ' (documents which tell us of the
compromises, the final concoids. made in the king's court)
begi&a in 1105. The chaucery theu takea up the tale; all
Ih that goes on therein is punctually recorded upon the charter,
IV patent, close and fine rolls. The historian of law and constitu-
ivsi tioa has no longer to complEiiii of a dearth af authentic
matPriale; soon he is overwholmed by them',
Richard's reiga, despite the exciting political struggles Bichird'n which filled ita first years, was on the whole a time of steady if JoIiur. tippreaaive government, and the same may be said of so umeh iif John's reign as had elapsed before he quarrelled with the church. Thp ^tyslpm nrpftted by Henry Il^'as so strong that it would do ita work thongh the king was an aLaentee. Term Thecflnifitl afUT term, at lea.-rt f^ffj^ Hfl-t oinvj^rds. a strong central cnurt. aat at Weatminsler. Until the middle of 1198 ita president was the archbishop Hubert Walter, and shortly after he had resigned the j usticiarship he became chancellor During the autumn term of 1196j to take one example, we may see him presiding in court on October 13. lo, 17. IH, 19, 21, 22, 24, 28 29, 30. Xovember 4, 6, 12, 13, 14, 18, 20, 21. 22, 23, 27, 28, 2\h and December 1, 2, 3, 4 and 6, until we wonder when he found time for the duties of his archiepiscopate*. As justiciar he was succeeded by a lay baron, Geoffrey Fitz Peter, who held the office until his death in 1213 ; he is one of the fi"'^ ftf Firff'*"^ laymen who is famed for his knowledge of law'. Another laym&n WbO comes t;o ihe flTAht as a great Judge is Simon PateshuU* ; he may well have been the father of the yet more celebrated Martin PateshuU whom Breicton revered'. Already
> The earliest of the known plea rolls has lately been pablished by the Pipe Boll Society; others of Richard's and John's reigns have been published by the Record Commisiioners and the Belden Society. The earliest charter rolls, patent rolls, close rolls have been pablished by the Record Commissioners.
« Feet of Fines, 7 A 8 Ric. I (Pipe Roll Boc.) p. 8 fT.
* Mat. Par. ii. 558: 'Erat antem firmiseima regni oolumna, atpote vir ftenerosoB, legum peritas, thesaaris, redditibus, et omnibus bonis instauratuB, omnibus Angliae magnatibus sanguine vel amicitia oonfoederatus.'
* Mat. Par. iii. p. 296 : ' qui quandoqne habenas sane moderabatnr totius regni iiurtitiarii.' Ibid. 542: 'cuius sapientia aliquando tota Anglia regebatnr.'
' See Baker's History of Northamptonshire, i. 267; also Diet. Nat. Biog. He certainly was the father of Hugh PateshuU, who was for a while treasurer to Henry UL and became bishop of Lichfield. Simon had a clerk called Martin ; Seleet Pleas of the Crown (Seld. Soc.). pl. 18.
i
170
The Age of GlanvUl.
[BK.
iillMVMI
in 1808 th» king's juatiawi are rffR.'i«nj- «tjm 'juBtigy U m ffl^ [>w~ Bui the court wm still full of bUbojw. arrl d— ootw anil nLli«T r]i<rl»; frtr pxArnpIo, three saooenmi bnhNl or London. Hjchnnl KiU Ncal. William of S. Blkv t^fiae. nd, Eoatace of Fauctmburg, were men who had Jooe much ji for tho kinj^. During tho reign of Riehiird. who piud but twol farit'f visitfl to thiK iviuntry, it l» of counie an unusual thing ttfj find the king prenidinK in porwm. though undoublctlly ht'did ao wbilu hd wod hcrv ; the court thvrtfMrc nhoHs no tanikacy lo bcvamo two courts But John ltke<l to di> ju«tic«. cr wlmt he calliil juiitice, and during hifl reign h» wa^ oAon timnrllinf about tho country with oiw piuty of judg«« in his tmin. whi] another party of judgift hi'wlod by thit chief jurticiar wm acakcd on tho Bench at WcvtuiinsliT*. Thy pCTHMUKnt crotiml tri- bunal i^ hn^nninp Ui BplJt it<>fff irito l»|| ^n^nM^ft fffT, '^
which followB the king, whijf'*'" "''»"r fff^imt tlw BMoh. and a aeriea of amall chanypa ia «*n^yh''tifg ^b* faiwF^Bi'g between me court a"'* »*"* ***'^fafT*^ But at pnaent all theae arrmogprnentA are of n teniponuT' charactor.
Tho counties aim were Tidt«d from time to time by itine- rant juflticea. Apparently they wen* eametiiBea amad ampler and ■oEDctimce with Icm ample powcra There waa a grent e)Te iu 1194, and the articles iHued to the jnaticee m that oocaaion aro tbo meet important edict cf the period There was tittle that we cuoM call legislation ; an otdtnanee c 110A f nfo«ved the ancoent ralea for the piusait of mUebetan iu l]U7 an asnn of meamrea was ianied*, in ISQS aa aana of money'. Richard's curious laws tor the fleet of ermHlMK. ooder which thieve* are tarred and featberad. dianne a pM^ ing word', and ordinaocea of John's niga befan the aiteaMoa of English law over tboae parts of Inland which were subjed to his power". But it was rather by deeisiocia of tJie ooqrts and by writa poonad in the chaocury ibal Kogliah law was beioff oacuArueted. A oomparisoa of a ooUecUoa of fmualas wbidi Henry 1 11. sent tu the Iri»h ehancerj' in 12S7 with UlaantTs treatise shows us that the number of writs which wccv to te
' MehH>ifc«taiMff«m: Holb of Iki lla|'« Ooarl (ftp* IMI
* H«»iiw. If. aft. • Bm. Pu. J4^ |L M.
' Q«la BmcM (D«Mdkl)w B. nOw " Bm. Pm. idk |u «?.
CB. in: J The Age of Glmimll. 171
bad 33 of course, had growu within the interveniTig forty years*. A new form of actian might be easily created. A few words said by the chancellor to his clerke — ' Such writs as this are for the future to be issued as of course' — would be as effectual n» the inoet eolemn legisUtion', As yet there would be no jpalousy between tht? justices and the chancellor, nor would they esutily be induced to quash his writs. .liO] It is not for ub here to relate the events which led to the Ti-e Great exaction and ijrant of the Great Charter, to repeat its clauses, of even to comment on all the general characteristics of that many-sided inHtrnment. In form a donatiou, a j^ant of frau- cbL*iea freely made by the king, in reality a treaty extorted from him, by the confederate estates of the realm, a treaty which threatens him with the loss of his land if he will nut abide by its tejons, it is also a long and misceltaueotis code of laws'- Of rmirwp it, \'^ "^» '""^ Vfhftn t^omparpd wjth a Statute of t}|p iprightt^rrjf.h CGUtury : more words than it contains have often been spent npon some trifling detail. But, regard being; had to its date, it ia a lengthy document'- Every one of its brief sentences is aimed at some different object and is full of ftiitire law. The relative importance of its various clauses historians will measure by various standarda It is a great thing^ that the king should hi; forced to promise that no scutate shall be levied save by the common counsel of the realm, ftpd that an attempt should be made to define the national •fwftml^ly'. It is a great thing that he should be forced to i^y, ' Nft frPA mytn ahnll Iw t^kpn or iTpprisoned or dJsseised or outlawed or exiled or in any wise destroyed, save by the
* This Iruh Bflgister ol Writs is described in Harvard Law Beview, iii. 110. Th« MS. ii Cotton, JnUas, D. 11.
* Bot. Clans. Joh. p. 82. A writ of 1206, which in technical terms is ' a writ of entrj stir disseiain in the per,' has against it the note ' Hoc breve da cetero ait de cnrso.*
' Charter 1215, o. I : * ConcessimaB etiam omnibas liberis bominibus regni nostri, pro nobis et heredibas nostria in pA^taam, omnes libertates sub- aeriptaa. habendas et tenendas eis et heredibas sais de nobis et heredibas oostris.' Bj e. 61 power is given the twenty-five barons to distrain the king 'per c^iUonem eaatrorom, terramm, pOBsesBionam et aliis modis qaibug potenint...Balva persona nostra et reginae nostrae et liberorom nostrormu.'
* For an interesting diBcnasion of a docnment professing to be a cop; of an earlier ebaiter of liberties, see £. H. B. vii. 286 (Bound) ; iz. 117 (Prothero), n6<HaU).
■ Charter, 1216. o. 12, 14.
172
T%e Afff of OtanviU,
[mcT.
Uwful judgint'm of hjg pecm or the kw of the hwd'/ BtU eventa will nhow that some of thne oelelw«tod cUumm mn prematarv, while uthcx» uro ragu* uid can be eludMi In the eud tbu vfury definite prumiMMi about ■nmller tnativri — promtHes which are ab» lawB — are porhupa of grvater valoa. i*rt<ciiK! limitii are set to ru^al claioti iu atrici leniu of maoaj, time and ipoce : — the a*lipf for a knight's fee U Dot to czecad one hundn<d Rhillings; the kin^ will hold the felon's land for a ^ear and a day and mi longpr ; Ml wrin tn the Thamps. in (be Ifedway or vlaewhen in England, nave along the cooet of the^J wa, ahftll be destroyed'. Such provi<dona can b« anlbreMl bjf^f oourta of law, which can hardly eoibroo against tbo king hi* ^ covenant that he will not wll ur delay or deny juxtice, and ihaX he will appoint tu judges only thoae who knuw the law*.
On the whole, the cluirtiT cootoins little that is afasnluteljr [loiiwirf new. It is rvstomlive. John in these last yeara has bca* ^ttaAvtor. ^jpB^ifiog w^^ inw ■ therebra the Uw must bo defined and ael ia writing. In aererml instences w« ean prore that the rule MmX is laid down iti one that was observed durin); the early port qf hia reign*. In the main th* refonns of Uenry li.'s day are •eeeptod aod are made a bass (or tba tnoly. So maemahX have tb« piiasflainfy mmbm b«en. Uwt cdod will no« now bo conteot onltaa four times in every year two ro^-al jurtiooa omdo into eve«7 ooanty for the pnrpoM* of unlbrring tfarm*. In a finr eases Uiore is even retrogiiesiotL Every ekws of mm i« lo b« concilintrd. The vagoe large pramiae that the churrfa of Kngiand idiall be frcv is dMtiaed to anmae hopes that have been ■*"tT'*'rt and can not be fulfilled*. The claimii of the feudal lord U» b<>j a eiiort which shall eigoy an ejcdaaive oompetenec in propn»>l tary Bction» ix acknowledged ; Htory U. would hardly have beeft' Ibraed into mich an acknnwledgiiMBat, and it doea immeasarabW baim to the form of Kngliah law, far lawyon and royal will aooo be inventing olabcKnte derioes for
* Cbortor. 1811. i. M. • IMA. c S. IX H-
* Vm loitaBM t. M t • Ksllm ■at^nw ai UmXnm 4s awrts altartas fo— vM i^*; Bstasi TUm of (IMtl: 'aBllBni srt sypaPw as fso4 Im oliqoMR ski d» Bortt viri rat ««l is ni^* Hw nit •*» tltmtf !•• m Hmy a*i 4»j \ afaMvOl, alt. s. 1. «. •,
* taiHMV. «. It.
> IMd. s. 1: 'inrt»li Intflisas Btea aft •« bskMl la» im k*va m
CH. VJ.]
The Age of Glaimill.
173
principle which they can not openly attack'. Even in the most famous wortlB of the charter we may rlt'tept a feudal claim which Viill only ceaae to be datigeruuH wheu iii coiirtie of lime men have distorted their meaning :— a uian is entitled to the judg- ment of his peers; the king's justices are no peers for carls or k-lSS] barouit. Foreign inei*chant« may freely come and go ; they may dwell here and buy and sell; yes, but all cities and boroughs are to enjoy all their fi-anchises and free cimtomR, and often enough in the coming centuries they will assert that their deareHt finuichiM is tlmt of including or oppressing the foreigner'. And yet, with all its faults, this document bccomoa and rightly becomes a sacred text, the nearest approach to an iiTepenlable * fuiidumentul statulo' that Kiigland has ever ha<l. In jige after age a conHrmattoo of it will be demanded and granted as a remedy for those oppressions from which the realm is suffering, and this when some of iti^ clauses, at least in their original meaning, have become hopelessly antu)ualcd. Fur in brief it Tn^im ihift, i\\pL\. ^,he king is and yh.all bt^ below the law'^^
' OhMter, 0. 31 : ' Itr«Te i]uod vocfttar Pra^eipr de cvU-ru nt^ti fint aliciii dc allqao tenemeoto onde Ub«r bamo amitterfl posslt oariam snam.' Ol&nvill, i. 5, ■How ibe king to ume thia writ wbenerer he pk<i8«8. Hkd ihiit prarogative been maintamed, Ihs borhblB Imoiile of oar 'real acliDtia,' oar 'writii of entry' aod so forth, would sever have perplexed oa. ' Ibid. c. il, 13.
* Id atUtr d»y» U wse pouiblc fur meo la worsbip Ui« words 'nisi per legate tadidatB parium Baoram vel per legem terrao ' (cap. SO), boeaimt' it was potMible lo itdnuderBtand them, lo psasiog, a oommentator should nlinvrve that in madiefal I^tio vel will often stand for and. As tbe writer of tlie PiaIi>Kii<i (U. 1) Myi, it oan be used nibditiHitetirv (tor which t«rai u« Dig. SO, 16, 134). OtiMB U U like the mat (or> of our mercanltle docameDtB. The wording of ihu datiM leave* open the qoesttou whether a man can ever be imprisuued or ilisaiiiwul \ij the law of the land without having had the jodgiuent of his peer*. Id the •«ooDd ptaoe, it is now Rcneralljr admitted that the phrase iudieitim parium AttM not point to trial by jury. For a lefjal inatrument to eall the vo^llct"^ rMogtUlon a Jodgnent. woold hare been as gross a bluodur in 1215 as it would be at tha pranot tlflUu Bee Select Pleas in Manorial Courts (Scldeu Soc.), p. IxvU. Thirdly, tliere con hardly be a doubt that this otaose expreaiei a claim bj the banrn* for a tribunal of men of baronial rank which shall try even the eivil oaoMs in which faarnan aro concerned ; we iliall eae har«aft« that thtiy certainly Tteiwil fnr neh a tribunal. The spirit of the eUnse ts eicailenlly expressed by a pesfiiUfr Ui the laws aacribed to David of ScotUiud: Acta of Parliament, toI. L p. 918: ' No man shall be jodged by his inferior who is not his peer; the earl ■hall be jndg^d by the earl, the boron by the baron, thu vsvamor by tlie vava«aor, the bnifws by the borgess; but an inferior may be jadgfd by a tuprrior.' 8oai« of John's fastioes went oerlatnly not of baronial rank. Just at ibis laina oumwat the French magnates also were striving for a ooort of peers; Lochalra, llaauel At» iiutitQtious, p. S60; they did not want trial by jury, for Uu btaury of tht pfattM indicium parium, see 8tubb«. Const, ilist. i. &7a.
CHAPTER VII.
THK AGE OP BRACTO!<.
CL
TuK tviga of Henrjr III. (1216-7S) » in the htmaij oTtM oar Uw an ago of rapid, but Rtoady and peniuinant jpwwtlu At tbo end of that |»eri4xl moM of the nMUb oulUaos of mtvlieral bw have bco dr»«D ^ cfond ukI »II : tb* MikK' •e<)titfnt CAiitumM will bv ahiv tn do tittif tni»ro than to fill ia the drtaiU iif a achvioe which in wt bcfon* thcni as unaJlnmbl*. It U difficult for any hipi^riaD uot to lakv a Mdo in th* puUtical struggle which filU tho reign, the uqunccing tfi^ oonl«nt, the loud dehat« «&d th« opftn nebellion ; aod the aide that he Ukt'f) will pnjbabty not be that of the (iteble, wilfal and ftiithlfj* kiii({. Hut uveu ut tbu wun*t of limes law waa •toadily growing. Htmry'n tjmuiDjr wm lb* lynany of caa whi) liiul a l^al a^Htfrti iindtr hii runtml ; it waa anfimsd by Ivgnl pHfOoaiM, bj judgnicnu ihnt the courts <lelirar*d, bgr write* tliat th« court* upheld. And on tho othor ttd« tfa«tv waK littlf InwlaaiMM. Not unit- wm it in the r. l«»
that tbo naiioo nm agalnut thf Itmjt, bat no wirt ... -;» WM mada lo nndo the work of his coorta and €u
If only tbo nation at large, thf umirtrtiiiu rwffni, ouvld obUM noint' nharr in the oontroi ovar this greai ouoliiBo. ita pWM might be pati«oUjr borno. Bat. hvmtff tb* political amI «••- Ktilutiona] urenU of tb« raign for olhnra. wa, pladog ourwlvaa at the snd« will moke • briof nirvajr of what baa baen dana in tbo i«Alro of law.
Oar Eogliab lawyon bavo no philoaophy of law. nor hava '*'***' thoypurwvd vitiy fiu> Um qoaatiMi, ll>i«r dui-« Uw. iir alaw.eoow intoboiiigf Tbttopeati^cbiqMoniof Jmtiniaa'i Inatitataaw
CH. VIZ.] The Age of Bracton. 175
i,l*»] kDown. The aentences which define iit^titia, mrisprmtentia^
§ivs natumle, iua cfetUtum, im.s civile^ and so forth. wi?ra copied ar imitated ; but, any real knowltidge of" Roman history being still ia the remote faturo, these seuteuces served as el check upon, ■ rather than as an incentive to, nitional specnlation^ In practice
there is no careful discrimination between ius and lex ; the whole mass of leg^ftl rules enforced by the English temporal courts can be indicated by auch phrases as iu3 re^ni^, lex regni', Lea; te>Ttie', ius tt consuetudo reg^i*, lex et comuetfido, leges ei consuetudw^s, lei de ta terre, lei et dreit de la terreK Of course ius, lej: and (ion^uetudo are not in all coutests exactly equivalent wardis ■ ins and the French dreit often stand for ' a right*' ; ?ej3 and lei are technically u^^d to signify the various modes of proof, such a^ the oath, the ordeal, the judicial combat'. Glanvlll and Bracton nwfce aonie apology forgiving the name le^es to the unwritten laviB of England' ; BractOQ can upon occasion contrfist co/isuetvdo with lex'. Of coiirwe too it is necessary at times to distinguish a new rule lately «stablished by some authoritative act frotii the old rules^ which are conceived as having been iu force from time immeinorial The rule in question has iii^ origin iu a royal decree or edict, iu a novella constitutiif of the prin^ceps^", m
* OlanvW!. TH, 1; 'BKKundam iue rogni.'
* CliarteT, 1216, c. 46: 'qui soiftDt legem regni'
' Ibid. 1315, e. 39: 'per legale iadicium pariam Buorom vel per legem terrse.' Bracton, f. 126 b: 'atlagatas rite et BecuDdam legem terrae.' Ibid. f. 127b: 'ante aetatem dnodecim annorum noc erit qnis sub lege, et prias extra legem poni non potent.' Ibid. f. 147: 'Beocodam legem Bomanorom, Fraooonuo et Anglomm.'
* Otanvill, vii. 12: 'secandum ins et ooasuetadinem regnl.'
* Pror. Oxford (Select Cbarters): 'La haute justice a peer de amender leg ton.,.eolam lei et dreit de la tere. E lee brefa eeient pledez solum lei de la tere e en leas deaisfl. '
* Thas in the comit on a writ of right, ' Peto teiram ut ins et hereditatem meam.. .pater mens fait seisitue at de iure...et de eo desoendit iu8...et quod hoc eat ias meam offero probare.'
' DialogOB, ii. 7: 'leges candentis ferri vel aquae.' Glanvill, zit. 2: 'per legem apparentem se purgare.' Charter, 1216, a. 38: 'Nullus ballivus ponat... aliqaem ad legem aimplioi loquela sua.'
■ Olanrill, Prologus: ' LoRes namque Angllcanas, licet son scriptae, leges appellari non ridetor abaurdnm.' Bracton, f. 1.
' Bracton, I. 1: 'Habmt enim AngUci plarima ex coneuetudine quae non habent ex lege.'
** Di&logas, ii. 21: 'Decrevit enim rex illustris.' Hoveden, iii. 299 : 'Edictam regiom.' Dialogue, U. 1 : 'ex novella oonstitutione, hoc eet post tempora regis Beorici primL' Olanvill, ii 7: 'Sst autem magna asaisa regale quoddam benefloiam, dementia principis de conailio procerum populia indultam...legaUa
176
The Age of Bracton.
[•«.
provision** mode by the king with the commoo eoatwel of hu (ykl
prelates and nobles, in on uaize. or when wo wpeak in 1Uif^6th
in mn ' isetnyae' * — the word * ttatnte ' is hKidly yet in OMnnwin
nao' — we may uveu have to aay of some aapriDeipl«d rule that
it is to be explained only by reference to the will of tbf lcp»-
lator*. Bat as yet ihuru u no deliml« theor\- as to the retatioa
belwc(5n eiuuttcd and ubenaotod law, the relation between law
and ciutnm, the relation between law o^ it is and law as
onf;ht to be. The asiases of Henry II. haro worked ibe«B«al»<
iiit<i the moaa of unenacted law, anil their text nemai all
to be furgotteu. Ou the other hand, the wrtt«r of Edward l.*a
day. whii in knnwn to us m Britton, riui repnwent tho wbol*
law us fttatulory : it all pnicrrilii frmn the kiog's inuotb. The
king's jttstioM aMin to claim a certain power of imprortng
Uw. but thoy may not cban^ th>' lawV Tho kin^ without
ooDscnt of a nulional assembly may iwrae new writs whirh
beyond the law. but not new writs which go agaimHt the law*.
Th<* term n)mmon Ittw (iuM commurtf, ter eommuntM, etmt
drfit, commuHs let) is not as yet a tttrra frvquont m the mouUw'
of our icmpoml lawyers. On the other hand, iuM commttm b •
phniM well knnwn to the caoonifta. They use it to dtstingaiah
the general and ordinary law nf the univerNal cfaureh both fru«i
any rules peculiar tu this or that provincial ehoreh. and frvas
tbuse papal priviltgUi which are always ginng rue lu eode-
naoticftl litigstioo. Two oxampiei may solBcc. ianoeaal lU-
talls the bishops of Lnudoo and Kly that ih« gmrdlanihlp
of vacunt churches in tho diocese of C^terbury bdoag* to ih«
arebdsacon, Ixith by commim law and by ths gcnerml cnaloai of
Um English churvh* In ISltt papal dol«gal«a report thai ths
Isls iaitflaUo (•'• ii«stti bts eMMOaUe).' Biwloa. f. W: 'm4 pm* mfm- «*abnto fKlis •« pcovWoa*.*
» Pioels«stfou •( Oh Ui«'s iBitHieu sT Iki hsihliiM of Otla«4 (flMM Ghsrtsn): * and lo wwtaa H iHlaaMs !■« kHw iHsksis.'
" Hm 1s«« of Sfartss sod MiiTtiiiisiti. Ihiinh Ihqr sn iiliiiinrtliiti asUsd •tatatai. asllal ihiBMtfsa pwtiitat. Dmmw, \lmaj X. fa*J hta tMlau. Vm sbdTs, p. 96^
• Uslofls*. li Iti • Praflv MisH isfls m^sb
• DfwtM. t Ik: tlwortrattaliliiM siliif sb4 *» wJisi iMialL
' VMSIMi. t 4Kb: Um niBtnul ■• Wla*P« s wtll vllisll (• w^w tm eas wfchh \» ft*tur in* bat at tW mum tUor riH— * ttmammm M mm (WHfranBiL
• «. M, X. t. »i *Ub Aa 1 1 ■■ml tank %fmm d*
p
CH. VII.] The Age of Brecon, 177
bishop of Salisbury jisserts a right to the church of Malmeabury both under the common Haw and by virtue of a papal privilege*. But IB truth the phmse was usual among the canonists, and they had wamaut in ancient Roman texts for the U6C that they made of it'. From the ecclesiasitical it would easily pass into the secular courts. A biahop of Salisbury in 1252 tells ' the pope how, acting as a papal delegate, he hft& decided that tb« common law makes in favour of the rector of one chuich and againsit the vicar of another. The common law of which he speaks is the common law of the catholic church ; but this bi&hop is no other than William of York, who owes his see to the good service that he haa done as a royal justice'. In connexion with English temporal affairs we may indeed find the term iU'ScommuM in the Dialogue on the Exchequer: the fore-sE laws which Jire the outctjme of the Icing's mere will and pleasure are contracted with the common law of the realm*. A century later, in Edward I.'s day, we frequently find it, though imc communia (cotnimtm lei) has by this time become the more usual phrase. The common law can then be contrasted with statute law ; still more often it ia contrasted with royal prerogO' tive ; it can algo be contrasted with local custom : in short it may be contrasted with whatever is particular, extraordinary, special, with 'specialty' {aliquid speciale, especiatU)*. When Bracton speaks of common law or common right — and this he does bat very rarely — it is to distinguish from rights which have
> Scram Chuien, p. 89.
' Hiim in Cod. Th«od. 16, S, 28 is a conatitation repealing an earlier law wliieh had plaoed a certain class of heretics under disabilities. ' Tivant iare eommiuii,' it says, and this we can beet render by, ' They are to live tmder the eomiDOD law,' i.t. the ordinary law. So in Cod. Theod. 3, 1, 10: ladaei romano et oonunoni iore liventes.'
■ Sanun Charters, p. 820: ' Nob vero...iiu conunone pro eoclesia de Preeohut faeiens considerantes.'
* Dialogns, i. 11: 'Iiegibiu qoidem propriis Babsistit; quae non eonununi regni inxe, sed Tolontaria principom institntione anbnixas dieunt.' Ih. ii. 22 : ■ conunonis lex.'
* ThoB T. B. 21-2 Edw. I. contrasts common law with statote (pp. S&-6, 419), with local eostom (pp. 318, 287), with prerogative (p. 406), with the law merchant (p. 469), with 'special law' (p. 71). P. Q. W. 681: -Tidetur iostidariis qnod dominns Bex plaoitaie potest per breve magis conveniens 1^ commnni qnam hoc breve.* Bot. Pari. i. 47 (1290): 'Perquirat sibi per legem eommimem.* Artionli super Cartas (28 Edw. I.) : ' oa remedie ne fast avant par la oommnne ley.. .mil bref qne tooche la eonunnne lei.' Y. B. 20-1 Edw. I. p. 56: ' Ton pnt forward no apawyaltt.'
P. U. I. 12
178
The Age of BivcIoh.
[I
HUinU
9W
Umit ori^o in nuue ^eoiAlly warded coutrftct or duCMricty tboae rights which are giTen to all rocn by ibo law of the It u not until there is a oannderable mas of taacled law, the kiug'B excseptiooal privileges are beii^ defifMd, until tfa«] plaoe which local castom is to have in the legal ^rvl«ni hmg fixad. that the term beoomea Toty umTuI. and it is bufore thu lawyers of the tamporal oouru will bear the tiUi 'eommoo lawyers.* or appose 'the comnion law* tu 'thir law of holy ehorchV
The mass of enaeted law is as yet by no maajw baary. Aa Wti have said above, the assiies of tha twelfth oentoiy i be already itrgarded a» part of the unonacted ancient Uw. N«1 one it at pain^ to preserve their text An to the Angtn HafB^j dooms, though men are still at timea oopyii^ and tampering] with the Latin vcntoas of them, they are praelieally dead, and] will rtniatn almost unknown until io th« aizteeodi oautoi/^ WilHam Lufibtini unearth)* them as aiiti(|uarisii curioutMs*. W« have in manuscript many oollactioiui al atalaica iranacnbcd in tiw days of the two ftnit Edwards: they aolckw. if ovar., go b(*bind Mngna CartA. That Charter takes its plaoa aa first chnpter of thf enacted luw ; but, as l-* wrll known. ti text u not exactly that which John sealed at Ruunyini«d 1115. Important ebangos wen made when it wu iwiMaad
lnHlon.tt7bi 'Modoi I tas soauaaM at SDBtis '
^■B dsi dsestfsnl ii
Ubi 'Uffs potaril sQodiUo Inps&s dsMasaa sd fsvprfas iMeoRmoML' fWlWfc: 'llMMpwIarmiirtiiiw loi cmmaa* eoaftllaanD mwb nnlknai heaf* in
* Ksr|7 IimUimm of iIm ua> of th> tann In ■ nor* m Imb tmdmlmi tlMs*. FaadwB. t. ««, s writ of IMSi 'Bn rait fsal oisais sasussal Ion ^ns* camot io AaiBs ■*»«*— nvasA Is nhsBslL' of Oztefd (IM9): '^ metu in>M qpm
^ tiiiBs(NlaM la
Ws
tkagy told ia lbs Bartsa Aaaak. p. no, wlMa Jdba mkmi lb faysl ^^
vlwt tbi7 «saialllMy iifiM. 'Nil nUI Im isssi'; ihkMn* to ^m.
• NothlDs t«« uMiii JulisL* Sm tenfav m to Iks Mmiy sf i^ ffaMk Clsrk. flMtioil JsihiniJiiii. f. TO.
• Th» liiVM Mw«f4i sad B<M Mflf *■ L^ps WllMni (jrtr MfeMa*) ««• Min hii)« ftmpua«d by la^ctssdw ftoas. wlw wtJil >nfc»» Iw riMrtOi «•!« iliBtiJ In lb* gDod old dkji, ftM bom ib« Bao«* w« MbtMl Is lbs Mm^tA Usg. Bsi Ilrtaiiaiiiii, L^m Aj^tam, ^ Ml. WKis. L 1Mb. «aM« bMockslasMwftm thsUpsBdwBvtt] sad ta Ms wscb <L IIT) Iban ti m
CB. vxl] Thit Age of Brcu^ovi, 179
^m- ^
1218 ; other important chftugeg weire made in 1217, and a
16«J few minor changes in 1225. The charter granted by Henry in 1225, when he had btely attained hin majority, became the M»gna Carta of future times*^ Echad ta contirm it rp;pPA^,pHly - > These renejtfftd ^""firm'uH'nt" t"" "" ^"w h^ird it ia tiO hind _ie king by law. The pages of the chroniclera are (nil oi" s "compIsJuts that the terms of the charter are not observed." Theae complaintSt when they become specific, usually refer to the articles which gave to the churches the right to elect their prelates. If on the one hand the king ia apt to regard i the charter as a mere promise from which, if this be necessary, J the pope will absolve hira, on the other hand efforts are made to convert every one of its clauaes into a fundamental, irre- peaiahle law. In 1253 with solemn ceremonial the anathema was launched, not merely agamst all who should break the charter, but~aIsQ against all who sho^iH *-*^kR any paij, what- ever, even the hUnible part of mere trangcribera. in making gr promulgating or entorctng any atfttutes contrary to the aftcred textT Ihis theoretical sanctity and this practical in- security are shared with ' the Great Charter of Liberties ' by the Charter of the Forest, which was issued in 1217.
The first set of laws which in later days usually beara the *J?I*'!^ name of ' statute ' ia the Provisions of Merton issued by the West- king with the consent of the prelat-es and nobles in 1236 on the ^dulrl- occasion of his queen's coronation : a few brief clauses amend '»"'°8'*- the law about divers miscellaneous matters'. From the time of storm and stress we have the Provisions of Westminster to which the king gave a reluctant consent in 1259*. He did not bold himself bound by them ; they never became a well esta- blished part of the law of the land; but in 1267, when the revolutionary period was at an end, almost all of them were reenacted with the consent of great and small as the Provisions or Statute of Marlborough'. These four documents, the two
1 After 133S bat before Edward's oonflmution in 1997 a change was made in, or erept into, the elaase which defines the amoant of the relief ; the baron's relief was redooed from 100 poonds to 100 marks. 8ee Bimont, Charles dee liberty anglaiaes, pp. xxxi. 47-8. The text of the varioaa editions can be beet compared in this excellent book.
* Btatatea of the Bealm. i. 6,
* Statates, i. I; Mote Book, i. 104.
* Statntes. L 8. > Stat. Marlb. (Statntes, i. 19) : ' oonTocatis discreeioribos einsdem r^ni
12—2
i
The Age of Braeton,
[B«:
Charteni. the Provuduiu of Mertoo and of Marlbunnigh, an dw tf^^ i only dijcumenla uf Henry's n'ign which are geoeially regarded in aitcr agos as part* of tho writteu law, though to Unae w«^ may (wrhapa add tha Dictum of Keuilworth imoed in ]S66 <i OMentially temporary provision raUtiog to the ptmiiJuDcnt the inmirgonta'). and a writ of lt.56. which ha« iii>nMUnMa baml digniHed by the titlct * thu 8utute uf LMp Y«ar * ; it daab vtUk' asmAll mattor, the oompotation of th« 'oxcreaoeot* day'of thm hiMixtUc'. Mut it ia only io ratntpflcfc that the qoaattkj of IfgMbtioD ihttt Lham has been «ppMn ao ainalL An yM thv« ia no easily applicable ext«TuaJ test by which wo can divtiogniah tha tolenin atatuta horn th« Iota •ol«mn ordiaaDo*. Pram Haniy's reign we haro neither a * atatutc roU ' nor any * rotle of parliament ' ; and we haw nu reaaon to believe that any records wen kepi*. Copies of the two oharten were atot al the oonntry; the only authoritative rvcofd that we have of ProviBtonti of Utnton is a writ upon the doao roU; the anlboritative records that we havL- of the Proriidooa of W« minfltcT jin> writn upon the oloee and patent roQa, and itpea theas rolhi and the juiliciol nilb of the kingfa cowt wv find BcMMa of other legislative acu, which for one reason or aoother dU nol permanently gain the cbaiaoter of alatutea*.
ooirV
TlMr* iMaM BO rmttm why «• AaoU aaqr HuUirU|> »bMi «• MM Maribttfo^ i * MtffM^ * k hal • fij>SMBiatioD of il» Frwh fona UaMUhmwK
* BtatniM of Uh BMbu. L IS.
*1hiA.p.l: l(otaBook.L Ol
•Tfa»«arikrtsUUii*ranDo««taBlb«ttBiwiUilW SMals «f ms. What b DOW II* lofMoil maknai ibew 4Mail riff* ol
Tiilwriiilii L (lS7Si ud oOmt oaltan. On flm
* Am«« Umh m»9 bo iwhaarf Uw onllauot of lfl« aMWoa of iho oitel, r*»tea. L IMi U» •ooMtfMitfi'ol laA Iks koUtet of ihi loMl «eofto. |iteli4 la 8latM« ol Ite Kwha. L flidlBHM of 1SS« ratetiac to ipMial IwterJ;. «likk {tm Bwtaa'% L fi IM) b on tb* OOMM Bofo BoH t oa oottMiwi W USS euaooirtiliiii uf th« |inii. |e— rrol oa ib* Oom Doll oad foisM U Ghutan : o ■Utato of UnUslitM bvM IttT obMb |w* Xta* Soot. i. uaaaUy kid VTnagtr iililii » pot of ih« rmHitwii ol ■booi wtmatr ■a'* !■ ISSl on Uo AitflaailM of *■ aiMlimirf by fcartoa, t wnh; m biJI—w of IMi mtallm •0(4, pii !■ nl by Mtith— forto aa4 priaM ta ifa i*W •llMwd, iHiHTel la tho Aaaalo of Bmaa. |i ■>•, oa4
nil
CH. vn.]
The Age of Bracion.
\m) And if merely formal teste fail ne, so also will more material tests. Of course we can not iu dealing with Henry's day insist that A statute must be enacted with the consent of the three estates of the realm ; we may be certain that the third estate
I was not represented at Merton, and nmy gravely doubt whether it was rcpresenttHl at Marlborough. On the other hand, we may take it aa generally ndmittHl that theking can not by his mere won! ifi^itpt^ law. If lie legislates, thus inuat be by the oHinsel of the prelates ajuTnobles : even if he ordains, thin sliciuld be jay the counsel, or at least with the wiiues&. oi his haBiTual ^counsellors'. But it is not easy to mark off the pro\-ince of ord inance-s Trom the province of laws. In 1253 Henrj- issued an ordinance for the mainteuuuce uf the peace ; it contained little, if anything, that was very new. Matthew Paris tells us that he wished to add to it something that was new, foreign. ivoyard. He wished to give to one who wjia robbed, an (ion against those whose duty it was to pursue the robbers ; apparently he wished to do what his son did successfully by the statute of Winchester. Perhaps he desired to imitate an edict issued by his father-in-law Count Raymond of Provence in 1243'. But he had to withdraw thia part of hi.s decree. because so large a change in thr- \^\v pnnlH »■-.» Kp mtyHp- without the common aaaent of the Laii>nage'. But between large changes and small, between changes and ameliorations, be- tween laws and rules of procedure, no accurate lines could be drawn.
That the king is below the law is a doctrine which even a
inporUnt ordioanee of 1255 affaiiiBl alienation, recentljr diaeorered on the CIom KoU li; Ur Ttuneir and prioUid by him in L. Q. B. xit. 2dd. BesidM all tbi« |Uab*w Pari* nuntiOLs a eonudnrable nnmbflr of aoti of a IfigiilatlTs k£nd, e.g. ToL V. pp. 15, 18, ao edict of 1248 relatiiig to the coinage ; p. S5, an adlot nlating III ■■nnaimi apoo adalt«i«n. The rolls of Ueniy's da^ have jet M be oarafuU; — iihli for the renuum of Icgulation.
* Bob. OroaeetMte Eptetolae, p. 96: Groaiieleeti^ to Haleij^b: <Doa Um idiola ettio qood oredun *d aUeoiua eoggestioDcm te vel aliam sine prindpis et mtcaateB ecnuiUo pova la|ee ooodere vd oommaUre.*
■ 7o> Uue mw> Oiraod, Histotre da droit fraD^aiB, ii. 24. It will ba nmmbvnd Ifaal Henrj's (|ue«ii beloDge to the bouse of Prorenoe oo ber iUfaer's, to that of Savo; on her mother'N side. Rajinond himself maj have aepiad what Uattbew calls a eonnetudo Sabaadiea.
* The aidinanoe ii printed in the Select Chartets. Hal. Par. r. 360: * fUiMMtiw eum (ante le^s penautatio aine oommuni UHua banagii oonitltui miBinw nlniBwi.*
Ordiuance
and&U-
lute.
The Uut I below tbe
law.
182
7^ A^ nf Braeton,
(K^
Toytd imtioo may fwriwdy proclaim V Tb« ihmory that in ewy Imm Uierc mnKt bo soma miui or'flpfiniu Ixidy »f m«a abon Ifat kw, MOM ' Kiv«niigD * without ilutiea mhI wilhijui rights, wooJd kive boMi r^{Mt«d Had it been MOVptcO in th« Uurtcantb ctmiary, iho Knf^tiHh kin^ipihip must havo iMwomo an abaolut« monarchy, for nowhan oIm thnn in the panon of Ifao kiag oonld ibe nqnudt« ' •overaigDiy ' hnvu U.vn fiHmd. Bot^fcrcpatUag. »«AwIy lyppw^ ^^1 j|)|^ le^j^g «.gnn yjth the coownt of the liah pTplatea "^ ^rranw rM^\^ altar the common law i>f tha eathoUc diurch. If the thooty of lovareigitty jwpaUr amoo^ Englishmen of our own day bo preMod upon the relactaoi middlv agea, the wholo nf WMtem Chriatendom moat ba tnaiad aa ooe atato*. Thaotugy oui be bmught in to axplaiB or to ooDoaal any diffieutty chat tbara may be in the oooeeptioa of a king, who thotigh subject Ui nn mnn. in mibjeet to tha law : — Qod iji Hubject to law. and ban vvva made himself aafaject to the law for man*. Xfao piaotical qaartiun ia y^i'i)i«^ UwiT ^aay modcjin^irh **** '*w,oan ba anforoed arenwt tht^ kjng. Tbat DO ordinaiy prooei of bia coiirta will touch him «• ad- mittod*. For a while men apaottlata aa to whether in an eiCMaa OMB the Eari of Cheater as count of the palace may not haw some coercive power orer the king*, A more aooeptable aolutkn, •specially whan these palatine counts have died oat, u that tiw iooorpoiata realm repreaented by the baronage may jndfs the king in hin ciwn court, if thi< worat nuau' ta the woial* Bat than is nu uatablithed orderly method whervby this can fas aooQOptished, and the right to nsatraiu an tirnng kiag. a king who Hhould bo Qod's vicar, but bvbaTcit on the devil's
i
■ analaa. r. tb. 107: Net* Book, 1. «-N.
■ tUjEtik WmiwHi ol VtiUtm. f. 11.
• liBa*iCBaMorx««iB,pp.ioa-4. u>-«.
• tUt Msttor will In dlmnvd b«law »1ko «« apMk of Iki Dm wl *• Obova.
• MsL Fat. lit. ai7-«. 4* BaufB inssiMis tk» mii mnim lk» — tJ <| Bi. SAvwt • is ligaaB qnoa sBaat art psMU il npa ri «am«« kshal a« w» |rT|-'i'^ whftMili.' II Mias bM Ui|Oiiftri Uhi IUb thamy, «MA «• ■■C hmm Iw4 soj vsmul ts ffmWA pwiiiwH^ «i «Im* bm •mt M—rtlnf ilMa • Mort ftMhM cvsr ly evM Ui^am lbs Ravww to Jaiti i P^H«. D. B. 0.
'^■""■itlTlk 1^ iiiirtiiii wHnliw tfw vUitam pewiai «a t •< .
CH* VU.]
The Age of Bracton.
183
rather a right of revolution, a right to defy a taithlese lord and to make war upon him, than a right that caa be enforced in fonn of law. The result of the barons' wai^ is to demonstrate that though the king in not above the law, the law has no meana of punishing him, and no dii'ect means of compelling him to make redress for the wrongs that he has done.
ic unenacted part^and tbis ie the oi-eat bulk — ^of the law PnanKtecl
^US\ seemB t*i be conceived aw cusuwn {cotxsuetado). the most im- caiitoiiL
portant of all customs is the cuetora of the king's conrt. The
ctistom may be extcDded by amali^gieal reasoning ; we way
argue firom one case ta another case which is similar though not
H precisely similar'. On the other hand, we should he aaftipmng
" tax too early a date for our modfini idafts- if wf* supposed that the
ktw 0^ the thirteenth cenuirv wji't "'■^""^y 'j'^°a-irtw ' r.r fhAt a.
prf>viCTI8 Judgment- ^i\fi mg-^'^-^'i "- ■ » Vinirling ^mfimrity' ; it winild but be an illustration of the custom ot" the court. Brncton achieved the raarveUoua feat of citing some five
some
hundred Ci^es Jrom the judicial rolls. But Bracton stoiDds quite alone; hia succesar^rs Fleta and Brittou abbreviate his work by omitting the citations, hy some piece of gornl fortune BraccoD, a royal justice, obtained possessiou of a large number of rolls. But the ordinary litigant or hia advocate would have had no opportunity of searching the rolls, and those who know what these records bxq like will feel safe in saying that even the king's justices can not have made a habit of searching them for principles of law. Again, we may see that Bracton had not our modem notions of 'authority.' He has told us how he set himself to peruse the ancient judgments of the just because hia ignorant and uneducated coptemporaries wer^ mif^pp^nar.f;«g the law ; he appealed from them to the great men of the past, to Martin PateshuU and William Raleigh*. On rare occasions
' Brmeton, f. lb: ' 8i satem aliqaa nova et ineoDBUeta emerserint et quae prios luitAta Qoa foerint in regno, si tamen umilia evenerint, per simile indioeotnr, com bona ait oooasio a aimilibus prooedere ad aimilia. Si aatem talia nonqoam prim evenerint, et obscnram et difficile ait eonim iudiciom, tmio ponantar iodieia in respeetom oaqoe ad magnam ooiiam, at ibi per eonsiliam enria* terminentor.' Thus in a qoite unprecedented case the court may have to declare for law what, as Bracton almost admits, has not as yet been law. For this poipoae the court should take the form ot a great assembly of prelates and bAions. In the above passage Bracton alludes to Dig. 1. 8. 13.
> BiMton, f . 1, 2.
BpHcific precedenLn (txmnpla) mny htkve be«n allegvd to eoort*; in Edward LV day the plcodw are already citing md ' ditJO' gqj^hing' pn^iuiin ciMcg': bot oa a gcnemt niie thf jnogM. > aKuttMj by rU'rltfi, who were oo their way to become jndgaa, would regard UienuM>lv(» uit having oii implicit kn*>w)«dg« nf the contuttudo curicw and wonld not foel bound to upM abo«t post caiiea. The juvticeH nf the bench would oft«n be fidly justified in U'hanng tbuH; many of them wife expenenaed men who had wurltMl their way upwarda through all iKe rank* of the kingK court aiid chancvry. And w> even iho knigbu who wen nnpluyefl Ui Lake amusm in tbf ir iliirea, tboogb they had mad no law, would beliuve that thi^ knew the law and coaioa applicable to the caaes that came before theVL Kvety aaw who doe* hill duty knoim a great deal of law vaA eaalom : the di6Sculty it to peniujido him that he docs ofit kzniw evitfyifaing*. Thtt imat^gp frf tlifi fci"ff'a court Ja thm ^aatam of Enf^Uod. upd beoomwa the oowmon law. As to local contom*. th** king'* jUMtieea will in geoLTal phraurM cxpreaa their reapcct fur lb«n*. W« aee no aignff of any cnnscioualy conceived denre to them out*. None Uto Iosil, if they an? not bring doatioyW.
ftirther growth bi cheeked. Kepecially _
oeduTg. the knig^w eonrt. wjtich ia ntpy nhtMII'i^l ■ ibi— mh
«rmti«l tnwnr all nihcT CQurti^ I* apt to tTeat if OWD aa the
Jiiat nil^^ A heavy harden of proof ta eait vpua
* Mfll* Booh. pi. UU I tiw Satl or GbMtar nnili «b elh«rvakllM«rk. XbUL pL t»7 1 ia ite ooMilatfr tMpwturt mm the tiiwllnii whatlMr • |Mlattnala aa b« p>r«tiaaa4 tia aiacaali ltti%n lawiiii ] * nw raliMnuii ivitmn par nviplB aiAMa la
tranwimtiih ' Id IW ilwBarl olOl.iii ilii. Wn luaii lm>M
nimd M unma) gmii— . Mktd Um Uaa thai tfat nO* t4 NiMkall tmk. Ifli* tai or laMr jdIim niglil ha MardbMl lar pfawAMli, aad a pHiiiwri booi IMI; BoU Pnl I O— 7. Of aoafa* Uw nlli pradoMd to ahow Ihal a ooaaali laiaiii waa iw iHWMia ; b« (Uila ftttt
■ ba «.p. r. a Sl-t B4«. L p. lift. nawilMitly iW paaeadMt la aaftvat aa Iha rril m Iha iiitanna ti iha plaai K AHlMlalkpLaL
• kmloa, 1 1 b I • Uaal rial aaanUi vi 4> pvofvia
^imi aflA iaria tyaMtaa, aohaa altaalaa lOMniaw Mpilan.*
• Bncfan. r. 1
* Wmux LoKUM* al a awloai Uud U iaatawl to h* aalavfal. ■• WlMidAMbaBdte.p.lMi •Ohiiai Ii iwrtai laaiw—Ma^
LtU. Tha piHwhii of iha fcaJal aaarta la wpal al
CB. VU.]
The Age of Bracton.
185
who would apply other rulc«; they must be prepared to show tiot merely that a local tradition is in their favour, but that this tradition haA biime fruit iu actual pnictice and governed the decisions of the local coui-ts'. The iustances that we get of j^lFiM] customs peculiar to counties or other wide tracts of land, awch aa the episcopal barony of Winchoater' or the honour of Bntauuy^ aie of no great imiwrtancc. The taw about frank- pledge, the law about the presentment of Englishr)'. may be somewhat differently understood in the vai'lous parts of England; and In the north there prevail certain forms of land tenure which aie hardly to be found in the Houth : — but this \» a small matter. The county coui-ts are held under the preai- of flheriffH who will ask advice from Westminster when :nlt casea come before themV Ever)' manor will indeL-d have its own customs, and to the unfrcc men these customs will be very important ; such rights as they have against their lords, save the bare right to life and limb, will be but ctLst4)mary and will not be acknowledged by the general law nor sanc- tioned by the king's court. Still these manorial usages are iu)t HO various OS we might have expected them to be. If a castumaJ be put into our hands, only after a minute examina- tion of it shall we be able lu guess whether it comes from the west or from the east, from Somersetshire or from Essex. The grekt estates of the great nobles have been widely dispersed ; the same steward has travelled throughout England holding all his lord's courts, reducing their procedure to uniformity, and completing in a humbler isphere the work of the king's itinerant I juices'. When the time come» for the king's courts to protect that villein tenure which has become copyhold tenure, there will be little difficulty about the establishment of a set of uniform
bfU M nsardi wut«aly, pleading, and bditle tba rales of the king's court miut
■ BfUton'i Note Book, pi. 834. The Miitom of Hsvoring am a«k«d (o prodocw a prcMdent {Aiemplum) for a jodgmaQt that the; hav« deUwrsd t not haiog aUa to do thia, Iber are amoroed.
' DraetoD, f. SS b : ' licet in qmbaKJam partibtu et per abaaum obMrretnr is ooatrariam. siout ia epiitcopfttii WintoDioe'; Note Book, pi. 3SiI.
' Nat« Book, pi. 633 : ' talif ^t consnetttdo in feodo Comitia Brilaaiiiac.'
*■ Kojml Iitrtton, i. 103. K difficult oom' having sriaeu in the oouol; cotut of Nottin^fham, the bailiff who held the court adWaofi the slieriff to obtain tb« opinioD of the king'a eonaiiil.
* BalMt Plcaa in Manorial CoorU, p. 3.
186
Th0 Age of Bracton,
fMC
rale* which viU wrte ■> a * oommoa law* for copybuld& Within the walls of a chartered borough pccaliar cumIoum eao grow vigoroQaly. for the ofaartor will M>rTf to profeeot thma mgaiati the meddlinf^ of the king's jtutictM. Tha awmnftirfo of tha borough will bo the tex of tbo borough, and woMlinMM it will be •olemnly committed to writing'. Bat eren here Uiara is leaa vaiieiy than we might have looked for. The aapuinfc bnm wis |> often content to rooeivr lut n phvUege tha cosUnn of mom fiuDOua borough. Wincbeeter or Bristol or Oxford, and thiaaa^ forward to oue of doubt it wotild Mend to ita mother town far an t'Xpcmtioo of the mlea that Rbould guide it*. On the whole, thff local variations from the general hiw of the land are of no great noneot, and aekfom, if ever, can we connect them with ethueal diffiBiencee or with remote history. We can no longer niar^ off the Danelaw from Ifercaa or Woaex; we hear of Uttlv thai u fftrange from Cornwall or from Curobvland. power haa quietly anbdoed all thingi unto il fllflfflinTfr** "^ »— ;«f^t*«*^ So English county ever
Scottafa Kent ia aomewhat of an vxcepCioo ; it haa a eunaidaiaMe
bodjr of cuatoma; there ia a ^ JTimliiae". In Edward La day a written etalement of theae eoatoms waa mnetHiaed hy Ihi king'ti jnatioea in eyre'. In the main tb^ are caoeemed with the ttaintenaooe of a peenliar form of land-leimrs kiMnra aa fRveBdiid. The name taemt to tell oa that the chief chan^ teriatae of ihai tannre i« or haa bean tha payment of 9^^ of rent, as distinguiahed from the performaooo of militaiy actvice on the one hand and of agricaltiual laboor oo Ae other*. Thern in in Kent a large class of landbolden^ who an Doi knights, who aro nut gentle folk ; tbey pay rent to tiMir lords; their tennre is protected by taw ; they am not bardoMd with ' week wurk.' They are free men , indeed in Edward L*a day it is said that every one bom in Kent is bom A«e*. The cuftoma of Kent arc, at least fur the more part, the onatmni of theae gaveDdnden ; c9stom« which bll within the pmriocv of
> M«cw«1)IW«Mc4lbfkaf«^ ■ Or«<i^ Oitf MwvUal. L AM.
> Koto BMk, |J. 1M« t 'wmmalmmUfm
* ■lllBlll. l«>.
* Btea, T«BM 0f Kwt, ^ ». tn Iki flMieD; Boll* «l KlM'a Oni« (np» BflB laaf, ^ tt.
itmt T. a, w-M K4«. L p. ica
CH. Til.] Tlie Age of Bracton. 1 87
private law, which regulate the wife's dower and the husband's curtesy, which <livide the dead tenant's land among; all his sons, Bhowing hfiwever a certain preference for the youngest, which determine the procedure that the lord must adopt if his rent be in arrear, and which, contrary to the general law, allow the sfins of the hanged felon to inherit from him. Thus thti task of i**' accounting for the lei. Kantiae is that of explaining a passage m the social and economic history of England^ and a diBicult passage. Thore is little in Domesday Book that marks oflf Kent from the surrounding counties, little indeed to make us think that at the date of thy survey it was a pecnliarly free county, that it wa§ as freu as the shires of the Danelaw'. We ahall hardly find an answer to out- (jUeHtioa in the fact that the churches held wide landH in Kent ; church lands are not the lands on which as a general rule we find many freeholders or many fi-ee men. No doubt some traits in the Kentish customs may be deflcribetl as archaic— they enshrine old English pro- verbs, and a legend grew up telling how the men of Kent had made s|>ecial terms with the Conqueror — but probably we shall do well in looking for the explanation of what haH to be eiplained to the time which lies on this side of the Conquest^. Kent is no mountain home of liberty, wo remote fastness in which the remnant of an ancient race has found refuge ; it is the garden of England, of all English counties that which is most exposed to foreign influences. The great roads which join London to the seaboard are the arteries along which flows money, the destructive solvent of aeignorial power. The tillers
* Id DomeKUy Book and older charters Kent is diatingnisbed b; peculiar Imod meftinxes, tha tubing and the yoke {iugum). Also it had been lightly tftied ; MMtUnd, Domesday Book, 466, 484. We can, however, find nothing in the record whioh in any way suggests that the namerons viUani of Kent are in any respeet better off than the vHUmi of other ooonties or that they stand on a par with the tokemanni or the small Ubere tenentei of Norfolk and Soffolk. See however Kenny, Primogeniture, p. 29.
' Among the ancient features we may reckon the allotment of the 'aster* or hearth to the youngest son, and the peculiar nine-fold payment pins a wergild whereby a tenant can redeem land that he has lost by non-payment of rent. The proverb which sends ' the father to the bough and the son to the plongh * seems eormpt. In the oldest versions of it the son goes to the ' lowe,* the fire, the hearth, the aster ; Note Book, pt. 1644 ; Statntes, i. 223. The eastnmal ends with an assertion that the Qsages which it describes are older than the Canqoest. At to the legend of the moving wood of Swanscombe, this first . appears at a very late day ; Freeman, Norman Conquest, iii, 6S9.
188
The Age q/* Bradon.
[B?
of Kentich toil c*& mainUin ibeir ancient or obUia lib«rtic», becMM their lonU hnve It^amt to want mocMj nnd will rmtber have cunvul cuia Uum toiuioruU right*. Tho g»T«l- kinden am provpennu; ihey purBh««a a nigral charur froa Henry III.'. Thttr« in grnenU |jm«p«rity in Kent: «v«a i knigbtH i>f tbi* rounty nre aniiouK tluii tb* b» Kaniiaa \k< (tbw^n-ud*. All claaectf^ in tho cuunty Mvn to bo booad C9> together by a tio of looal patnutism. Thvy fuel that tb«y are batter off than other Engtiahowo art*, in ooune of tUM them nnrt be ' tnatiaea on gavolkind' and learned booka on * the tcnurea of Kent,* for when once a district has osubliahcd an rxenipliuii frotu ci'rtaiu uf iht* (.irdinary mlaa of lav, Um number uf the nil<w from which it \it exempt will be apt to grow*. But ou the wbule, tht* brief Kentiah cuntumal of the thirteonth oentoiy i» only • lonall eiceptiou U* the genonJity of the common law.
y^jjgF / English Iaw wait by thia time noogniaed aa dialiiwljval;
hwr^ (iBngtiKb. and Ku^lithmcn were proud of it Prom time to ti>a«' xmrouunt wi-ut ruutid that the king'tt dotcetable favooritea w«n going lu intnfdiiiX' furfigii lufwllim from Poitou or Sarcy. Vln a caae far which no Eiiglifth praoedont oonld be lovod our ^ kin^a court refused to fallow fareign. pranmably Freadi, 7 preoedenta*. But the mayi oontnat to Engliah law waa to be found in the U^n «l eaaoMit. Braeton. having probaUy takm ■oroc Italian legist nt hi« worrl. rntvrtained the belief that in almoal all oountriea the Zei/ef $cripta* pn'TuKil. and that only Ei^fiand waa ruled by unwritl^ law and cuaton* Thin a mistake, for the Roman jitrupmdeuce wan but ilvwly trating into northern France and had hardly touobed but it aorrod to make a great cuntnwt BHm EngUnd waa not gorenwd by the Upm aer^iHk All know how at tbe Herttni fiariiAmeDt the avambM deelared with one veke that tht-y would nol obiMa the
> BtalBte. L tm. * XsM BMk. ft tm;
'Otiwil Um Inl wordi of th* •wt«^:-'Than an « •artooa «Uati iV eammmmiif V Knt nlalwi l» ban fai tmamml te4^««IUalbUu-
• Tbto to via AMn ly tka ai^yiikHal ai a *«it hM pafa to AMto pmOdad bai I7 ««, a naltar la^j 4lMww4 t^B* Kart,TS— «.
■ ■" ..-p^... T "^ I r^Mln jakMayi i
«f a
CH. vilJ
The Age of Bracton.
189
ws:
I
England'. Perhi^ia we do well to treat this as an outbunHt of nationality aad conservatiBm. English law is to be maintAined because it is English, for as to the specific question then at iMue, namel)', whether bastards Hhould be legitinmlud by the marriage i>f thoir parents, we should hardly have suspected our barons of having a strong and unanimous opinion on so argu- able a point. Curiously enough in the very next year the Norman exchequer decided to follow the church's rule, perhaps by way of xhowiiig that, despite King Heme's claims, the breach between Normandy and England was Hnal*. But it is by DO means impossible that the celebrated Nolnmiis exprctsaes a prafet«innal as well as a national consei-vatism ; at any rate it was Qo baron but a lawyer, ati ecclesiastic, a judge, Bracton's master, William Raleigh, whu had to meet the clerical foi-ces and to stand np for English practice against the laws and canons and consensus of Christendom^
Of ' equity ' as of a set of rules which can be put beside the Equity. rules of * law/ or of courts whose proper function is the ad- miluairation, not of law, but of equity, we shall hear nothing ffir a long time to come. We must however remember, 6rst, that a contrast between aeqnitas and riffor turU is alroa<.ly a put uf what passes as philosophical jurisprudence, and i«ecundly, that our king's court is according to very ancient tradition a court that can do whatever equity may require. I<(>ngago this principle was asserted by the court of Franki.sh king?* ai all Bffaite ance the Conqnest, it has been bearing fn?''t' '"
laAdf It means that the royal tribunal is n^t so fitrif:rly
mnd by nilt^ th»t it can not dpf«fat th** '^*^v^'''^ "f «Hnwp whn would use legal forma for the purposes of chicane ; it means
' N(rtc Book, i. fp. 101 — lie. Wc tuiYe oo BathoriUtivc (est of (Ida fiunout lOlotiWI : bnt the ImI word of It aeenu to have been tnulurr, not mutan.
* DtiUU, B«aueO d« jut^ioeDU, p. 199 : ' Jndicatuiii mt quod illc qui nktus ito «ptmMli& livA pout att ptopinquioi herM Hd htbendam hcretltUUtm
l...tl tftoetA eooUaia kpprobrt niAril«Kiunt.'
Bob. ORMHtotf* EpiMolM, 70—117. UroMetecU (p. 97) writet lo Ralviftb : ' lodssutii teMinwmiom BicArdl de Lad ; ooitu testimoDiam qnantun ei ^nhli■i h»lml oomjanUoaeta md tcstimonii divinae soriptarM et canoiiiciie conlmillini ttatiSeuitU, lippu yaXet et tonioribtu.* The ftrgmnents which OniaMtMie adJoon from the Bible aad the law of nature are very cariooi ; hcmewar, h» HMsmB to expreMly diKolaiui Iho milion that th« king's jattlow «onld diwit their unjjodly preoedenl« in faroor of divine asd natural taw anlU Um U« oI England had been ehaoged hj king and magnates.
* Bnuuwr, D. B. O. ii. 186— C.
The Age of Bracton,
C'
MJftUo thai tba jiutieat an iaMme dcigrM fnt I ||circuiaiUooM of thoM omw that oonw bofore then and to (iadapt tb» means to th« end. In lb* dap of Hflofy II. and Uoiify IIL the Idog's court wiehU di-^cretiucuuj powen aiteh ai are not at thu ooramand of lowlier ouurtA. and the uw ol* thaao powent w an fxhibiiion of *«qaUj.' Often on \hja pica luU* vs >U find it written tbui mxma order ia nada 'bf iba ooaaael of ihe court' {d§ ootiMUio cuna§X It ia an order that ooald not be aiked Ibr w a nmtti'r of fitrirt rij^ht : the ri^r inris doe* not dictate it — wuuld purhope rvfuae it ; but it im made in oidar that the lubelantial purposea of the law may be aecotopHAed without 'circuity of action'.' The need tif a Hepoimt*; court of equity te not yet felt, fur the king'a court, which is imi a« y«ft hampered by many aiatoteA or by Kccuretvly funnaUte^l * Uw,' can adniiniater equity. ^9Mklar« In the middle of thu thirteenth century ihe high
that do jnaticc in the king's name are imptdly taking what will long be their final form. When in 1H75 a Supreme Oourt Judicature once moro lUMorbe them, the Court erf" King^a
BOneDt at which one court
__ To fix pnciaely the esMfe beeame two or more eourti^ ht
paritaps impoMHUe, for 'court,* a* our modem ftatnte book wituld sniply prove, is a Lenu that can not eoAiIy lie doAned. In dealing, bowewr, with the thirteenth ottitary and ttm lat«r middte agea we might be joatilled iu mying that aack of the high oourt« of the realm mutt have a ovi of rolls that ie iu own and a mal that is iti own. A oontiaoous naoMiy of all that it ha» duoe seeme the eaaeaee of a court's Meotity, and lUe OMmory takcw the shape of a continuotu lericM of written ivcorae.
tOVtOTiU. *iJ. It ••%!
isBlelB«to4a wnintn mttm Urn •» ■hsIiwi iisritwilsai
ML- K«4»
ft. m. T«w tW. too. MO. U7«. BnMoa.tlb
ht JiriiiA 'f iiietfliH wriM.' Ia tW T«sr B«a« «• w
■geteMt btts 1 H0ar — < — fMU* ; T. U- iO-l X4v. I. ttt.
•1k§nd^wmttmwiam4»»ukU0mwma hr n te
•fftjiriislslsksnslsrb
<>a«<iaifc»iitfniii^snh»
> Mtiel mlta vkM Mt hnh la* torts of Msosou.
rtiuj
At what wu may call an early time the exchequer ceaaed to The ettUt. be a phode of the gener&l governing body of the realm, and '^^*"' became a department, with a aea! and many records of its own, a financial department'. In Bishop Richard's Dialogue w^ atill see all the great onea of the kingdom seated round the chess-board. The chief justiciar is there and the chancellor of the I'ealm. Gradually they withdi-aw themselves from the ordiaary work of the board, though they may attend it on Hpecial occasions. The treasurer becomes its president ; ita seal 18 kept by the chaucellor of the exchequer, an officer who first appeartj in Henry Ill.'a reign', and the writs that it issues are tested by the senior baron*; as yet there ia no 'chief baron'.' From the beginning of the reign unwards men are definitely appointed to he barons uf the eschet^uer*. They are chosen from among the king'^s clerks, but they keep the old title and are suiSciently the ' peers' of the barons of the realm to enable them to inflict amercementBi on noble offenders. The treafiurer is the head of the court whatever it may be doing. The position of the chancellor of the eschequer is subordinate; he keepH the seal of the courts and his accountH nmy serve to check the treasurer's, but apparently the acts of the court are always attributed to the treasurer and barons'.
The exchequer is called a curia'. In our view it may be a Work of compound institution, in part a judicial tribunal, in part aqner" financial bureau. The process which in course of time will divide a great 'government office' known as the treasury &om the court of law held before a chief baron and other barons, has not as yet gone far. The duty of issuing the king's treasure is performed by the treasurer with the assistance of the deputy chamberlains — already the chamberlainships have become here- ditary sinecures^ — and in this matter he is not controlled by the barons. But then in this matter he has little discretion, for he dares issue no penny save in obedience to an order which comes to him under the great or the privy seal ; even for
* Hadoz, Exobeqoer, ii. 61. > Fleta, p. 83.
* FoM, Jndges, iii. 196. * Madox, Exoheqner, ii. 54.
* Write wnt to the flxehequer are addressed to the treaenrer and barons, or, if they merely order the delivery of treasure or the like, to the treasorer and ehamborlains.
' Fleta, p. 61: 'Hobet etiam Bex eoriam soam et iostitiarios saos in Beaoeario apnd Weatmonasteriom residentes.' ' Hadox, Exeheqoer, ii. 386.
192
The Aga of BmcUm.
[bk. l
every pa}Tn«*iit of ma KOntuU nUi^* he n!(]airaa such a wurmnl frook above'. There wm, however, lome riTah7 beiw««ft the two departmenU, and tlurinf; itotne late yean of Edwud !.'■ | reifii the Creanurvr. ruthiT ihuti iho chuncvllor, was the kiiif'a firvt mioiHtor* The main work of (he court or board over which he proddei iit ih&t nf cnUoofcing Um king's nv«iui& II tp- 1 receive* and audibi thu imx-ouqu uf the ■heriifii and oCbar eul' leotom; it cdlti the king'a debtors before it, bean what tbajr have to nay, iiivestigatea the tmth of their alligatioMi. gfto them an arqaittance or iMuea procean againai tliem, 'aooordiiiK^ to the oufftunu and uaagoH of the t<xche^uer.* We •"•^■^ p*^!*" rttl| |t an «ulmin;««rftf^yy tribunaj If qucrtJOM of fact Of (|Ue»- tionw of Iwg ar*"! ^ ""ght t-ri _indge impartially betn't'^n th<? Jtiii^ liud hu* >^ub|cci6 . bu^Blill_ith duty ia to get in what iw du».- rn thf. king unil tn do tfajg ^oiiUDeoualy witiwol waitiiiit ^ aqy Mtot^i*! ifnW**** It t« a ivvaDtte iMKiil wtiirk hvan
the king. Not that a subject can bring on action againM th4
moaay
king either here or efaewbawt but whi>ii a nian thinks that has a claim againat the king, either in ruspect <if that tho king owes him, or in respect of some land that th4 king has seized, he will (this is the eoiaion araetic*' of Biiwartl I.'m day) pm^qnt m pptitinn to the king and wuracil, and~a favHfit^^Itt vufpaam to this petition will gi-ocnJIy dfWgat* tbe M^^^tn tli* *TfBBnTr f» baroos attO ma thero do wKaLjJ jighll If a qiMstioci oTgOBflfal law ia iavelvad, tb«y will olU«^ be told to aasueiate with tbetnaalTas liw jortioue at the beochee, for they thatnaelves an rappiMrd to know r»tb<« * tkoi «a«ura» of the oieheqovr* than tho CHsaniuD lav of l^ IsmLJ However, during our period w« may aee as iircfwrnnMe taa- dsDcy at work which will giw thi*m a power to a^jodieate m\ panooal Mtaou between aa^jeot aad sul^ccL In EdwardV nift Ihty are oA«o fctbidJea to do lUs, bet they du it , and m ■■ doing tbty nay be tmtlier striving to rstota old powMi^ powcss
> TliU U Uh Uhb* of Lod Uaamn'B ■^^^■i**— i jfntgrn^Bl ts TW ■uite'^ ■M»; Msto THsH vdL iW. ^ 1. !■ «oan» oIiIm* • ffaMka* «l M«4tae I* lis
mm% of fwinihsl iliiigi , «m sAopud.
« H^ikM. tW PsH^Moi of Umatm, AmM. Miij. Wm.
> Usui «l rwlh»isl, nL I, f»mlm. It «mU m^ I Miiiwi wMA Is sittr 4»y %oaM fcsw fcws iW wHiifc si ' ««• ki «vte dsji Ihu Jil^liJ to lb* iiiifcusw-
Til.]
Ttie Age of Bracton.
193
that had be*!n exercised by the excheq^uer when il
of
wa& & pt the afl yet undifferentiated * curia,' than to usurp a new function.
^m We are at & loss to account on the one hand for the offence
^P that they thus gave to the conimunity of the realm, and on th« other for the persistent recourse to their tribunal of creditors who might have gone elsewhere, unless it be that a creditor might thus obtain the advantage of isome of those ej(j>editious
iTt] ajod stringent processes which had been devised for the col- lection of crown debts. In the end, as is well known, the exchequer triumphed under the cover of fictiony; but this
^■victory belongs to a later time thaii Ihat of which we are speaking '.
I
Men are beginning to speak of the chancery as a curiu*; but '^•"' even iii Eiiward I.'y roigii it is not in our view a court of justice; it doeft not hear and determine causes. It wa^ a great F-wrgtftriiftl V'irpft" "^ hrtmp office^ a foreign office and a ministry of justice. At ite head waa the chancellor, who, when thi?re was no longer a chief justiciar of the realm, became the highest in rank of the kind's servants. He was ' the king's secretary of state for all departmLmts'/ Under him there were numerous cleiHta. The highest in rank among them we might fairly call 'Under-Secretaries of state'; they were ecclesiastics holding deaneries or canonries ; they were sworn of the king's council ; some of them were doctores utriusque iuria ; they were graduates, they were 'masters'; some of them as notaries of the apostolic see were men whose ' authenticity ' would be admitted all the
1 Th« flozioiu point is that in ttuB matter the barons seem to hare aoted in defiance not merely of laws and ordinances bat of the king's omi interestB. Whether the well-known phrase in the Charter ('Oommonia plaoita non ■eqoantar curiam noatoam sed teneantor in aliqao loco oerto ') was originally intended to depri^ the ezoheqoer of jtuisdiction over common pleas is ^rabtfol ; bat that intention was authoritatively attribnted to it in Edward I. 'a day. We find Edward laying down the prohibitiTe mle not merely in the Aitieoli of 1300 (Statutes, i. 188), some of which were won from him by (neaeare, bat in a mach earlier ordinanoe, the so-called Statute of Bhuddlan Ol. 70), where he gives as his reason the delay of the ezcheqaer's proper bnsineee. As to the motives which sent plaintiffs to the ezoheqaer, we find that when the king by way of exceptional favour sanctions their going thither, he sometimee expressly aays that they are to have the benefit of the processes appropriate to crown debts. See Uadox, Exchequer, i. a»-214, ii. 7a-6.
* Fleta, p. 66 : ' Habet etiam [Bex] curiam suam in oanoellaria soa.'
' Btobbe. Const. Hist. i. p. 381.
P.M. I. 13
/"
194
The Age of BraeUm.
[I
world over'. Very little wmb doiw by the kiug thml wi
th«
Mftl
the key
done by a docutnrnl bvariitg ihe kiagdotn".' The uxchvquer nod Uw two bencbee had indeed ■min and ooald isBoe writii running in the ktng'H Duue, writu, fiir ***"*!*'*', ■wmmoning jnrue, ooeroing contumactoiw UligaoU or cwrying' jodgmente into effect ; but the pronnov of Midi wriUi WM not very wide, »nd it wee e very gcnereJ ruk* that bo Mtioa oould bo begun in the king's courto and that no eciiuo touching freehold oouM be begun anywhere without an 'ohginal* or (lu w« ni^t my) ' ohginatii^ ' writ, which prooadad fr«n the chancery and mnr«d u tho justicea' warrant fur eotertaim^g thai action'. During fch« oouie of Edward's reign write itadm the privy seal became cofninoB ; bnt the king waa oooatniiMd lo procnise that no writ which ooooemed the oommon law eboaU iflsue uoder that eeal*, and very many of the wrii« ihun outhon- tiealed were addrewtd to the chancellor and dxl but bid him aet tho gnat aeal to some instrument which woaU be the final expramon of the king's wiU*. Coofidoatial elarks or 'eraivUriai^* (fin* thia word was coming into oae) were bsiginmng to intsmsa faatwaen tho king and his chancellur. — "'^■"g lo him writtaa. or carrying lo him oral meeeagea*. The chanoelUr wne now a aift of eialted rank. and. though tbeoivcicaUy the ohaDOHfj * followed the king,' still as a malttfr of fact it often fcappMod that iW king waa at one place while the chancellor was at anoihor^ la
>i
■ Hm wns «H#lfltN «tei B^HM Is Ifcs ■mm iw BMnl7 to eMth ik^ «■ aa wlih aaiMndlgr digiMa Bel th«y <■■ pMMtfUtm, (or ia ewuio omsi Uugr bsd pe««r to efdw Iksl • •¥!• ksas; TUls, p. T7. Appsnotlj lb* elsM of write kn««« m etathte of Uww wbtwh mat b» a^WM fcycw ol ti» w^mi\ BiMtea. L Ulk Ueaid L had t«u apiMluUfi atAmnm ia hU ekaesMy. Jala ArllMr of CSaa sod Jolia BotehiL Tb* Miri« uf ouflUn ol Um nib t/mm leak lo tte m^ Tisn of Itdvard's nafla. Tlui BMtfsr of Ibo mb b ibo
• Msl. Fw. OlBoa. K^. t. UOl ' Wrtts baaid hj Ibo eovt ka Um ooens ««
Ibqr MO waHdaH mU lo ' l«a« OSS o( Um raOs fl< iIh «ueii i ' Ms Iks «nbr fas lbs iflSM oTlbs »ril U «■ Um oe««*o mB.
■ Aitbelf Bipv sw«Sik UOO, «. « (Btatek^ \. IW^
■ TW bs^ iiiMiiilliie «r prif7 nsl wMs la IW Bsmd Otti
• Hslibad. Maiimsii 4s f>riheiislB> n Bi«ari L. ^ nvfi.
' TW #s«H kr sMsfc As slwssMy oiMod M • eaite rf tal ••
Mb«b« Iho kia( ta lib ir^i !»>« wnv joi
it kal ii HMs rnteUo ihtf f^siirw Buirf I la IMOt IsMlii VoMMW, IL Nil. K ift
r. vji.] The Age o/Bracton.
its final form alixKst every message, order or mandate that cajne, or was suppoBed to come, from the king, whether it concerned the ^^eatest matter or the smallott, whether addressed to an emperor or to an eacheatoT, whether addressed to all the lieges or to one man, was a document settled in the chancery and sealed with the great seal. Miles of parchment, close rolls and patent rolls, fine rolU find charter rolls. Roman rolls, Gascon rolls and so forth, are covered with copies of the-se documenta', T41 and yet reveal but a part uf the chancery's work, for no roll sets forth all those ' origical ' writs that were issued ' ae of course* '
^
The number of writs which were issued as of <wurse for the '•'^'^J^'
purpose of enabling thoHe who thought themselves wronged to bring their cases before the law courts, increased rapidly dunng the reiga of Henry III. A 'register of original writs' which comes from the end of that period will be much longer than one that comes from the beginning'. Apparently there were some writs which could be had for nothing; for others a mark or a half-mark would be charged, while, at least during Henry'e earlj' years, there were others which were only to be had at high prices. We may find creditors promising the king a quarter or a thiid of the debts that they hope to recover* Some distinction seems to have been taken between necessfLfies and luxuries. A royal writ was a necessary for uno who was claiming freehold ; it was a luxury for the creditor exacting a debt, for the local courts were open to him and he could proceed there without writ Elaborate glosses overlaid the king's promise that he would sell justice to none, for a line between the price of justice and those mere court fees, which are demanded even in our own day, is not easily drawn". That the poor should have their writs for nothing, was an accepted maxim*. The almost mechanical work of penning these ordinary writs was con6ded to clerks who stood low in the official hierarchy, to cursitors (cursarii); it consisted chiefly of
' The best introdDction to them will be found in B£mont, BAlee Gasoonfl (DocomenU inMits), Paris 1696.
' If ao intending litigant has to pa; for his original writ, then an entiy will be made on the fine roll, bnt the nature of the writ will be bat briefly described, «.tf.ai 'a writ of trespass,' 'an attaint 'or the like. See Fleta, p. 77. The Beoord Ot&et contains large stores of these writs.
* Harr. L. K, ui. 176.
* Eieerpta • Botnlis Finiom. i. 29, 49, 63, 68 ; Harr. L. B., iii. 13.
■ Fleta, p. 77. < Fleta. p. 77 ; Excerpta e Botulis Finitim, ii. 101.
13—2
Thr Age of Bracton.
[BK. I.
filling with oarooi and sums of moDey the bUnks that wn« Uft ill thi' forma UuU they foood id their regiatwii ; but mjitw elach of ft higher grado w&tnsm to hnre been respooMble for cvoy writ'. N(i fiiuility wm m yet tecribnl to tbft r^iatar. it «w not regarded em aii f^xhiitutiire Hoheme of ju»tic« to which do addition could be made aavo by dafinito legialation. tbm^ a common form, when onee Mttled. waa not to be lightly laaiiwad with. Nttw writs could be made, at all events if tiMy wera 'penooal.' not ' real '— Aoy iniioratioo 'tooohing liwahald* was a more aorioun maUot^-and they ware mada aomavfaat frsaly'. [f To tnkc the beat cxamfrfe, tuwonht the clurc of Henry '« nugn the action Mfin-vpuK, which iit ful I of fut un- hiatory, bMonaa eocuDoa flomewhat (radduoly. The chancur)- had not yet fiUleo ao br apart from tbe ootuta of law that the juntiom could wrt gat d«w wrttN \x\iu\t if they wanteti tbcm. In manuacripl rc|piit«n we fisd n group uf new wriu aacribod to William fUle^ who far a while the foremost judge in the kiug'i court'. F vome years bdbre the barooa' war Ht^nry att«iDpl«d to without a chancellor or with a ohaoooDor who wae such only namv*; h» ohaaoefy waa no aerioua ohaUela tu hi* will pleaiure, tboogh now and again erea a rioe<«haBeBllar nsign nith(*r Ihwi n^t tbe seal U* a dorninaitt that ba aaillegal*. CumpUinU agminvt new and nnaooiutained writ* load*. The dtaoonteDted probtaa and barons demanded a cbaacoilor and ona ewoTD to iasacno writ«.8are'wriuof oootsv/ without warrant frodb tbe baronial council'. Uiuler Edward L two different cauaaa tcodod to give stability and finality u> ib« cycle of original writa. On tbe on* hand, it becaaoe a|ipBnnl that to invout new remedies was to make new law% and rwia were deciding that only in a parlianwnt of the thni* m/b^tm coaM new laws be made : aren when the king was Iba iBfc ul* aetiona was to be a eloMd bit'. Oo th« wlbar
t«Uk-AlAk
• Umi Pv. ahtsa.M«J.ULaM,M1.4M.«0L
• lUlttLtWtT. 0M.
•TUikmlMMMil7SslM4:iUl.lT.Mt.MTi «i. Mft. > Am. DanoB, Ml.
• nHilaiiqBsWsmBis.«tl.«M: vrttt kra^fcl ^ Ik* kk« ■« < k$iim\mktm. nsOi of Wit. L M i Mwil «mHb^ >• ^ «»ri putfMlw «M* hsi esMiW wkM b as! iBMltr Mt k9 s^f sf ^ *r •f Mbisft ssmai kilW ^u»T.
CH, Tn.]
lite Age of Sractoti,
197
duBoei^ and chancellor had grown in dignity. There were gTMt chancellors who were usually the king's first luinistcrs. The chancery was by this time independent of the * benches.' The days when the chancellor would often sit among the justices were passing away, the days for stiff official ourreepondence between the courts and the chancery had come.
It is but rarely that we bear of the chancer)' or the chan- ^J^^^' rcllor performing any work that can fairly be called judicial. uii.uu»i. The imuing of the 'original' writs was not judicial work, though ^J we may leam from petitions addressed to the chancellor and firom other sources that it was not always done mechanically: a friend of the chancellor might hope for a few words in his writ that a stranger would hardly have obtained '. Of any 'equitable jurisdiction' exercise^] in the chancery we hear nothing; the king's justices atill believe that they can do what eq^oity reiiuires. But even of what afterwards became the • common law jurisriiction ' of the chancery, the juriwiiction of its ' ordinary ' or ' Latin fdde ' we hear very little. Ixx later. days that jurisdiction waa concerned chiefly, though not solely, ,with cages m which a subjfict rPi|iiifwi tr>mt> rftHftt agnmst the t^*^ In the latter half of the thirteenth century a snbject rho has aught against the king has, at least as a general rule.
"'One cpurae open to him. He ' presents a petition to the
king or the king and his council. This may come before the
king himself, or before a full meeting of the council, or before a
■elect body of councillors aiisigned to deal with such petitions
M can be easily disposed of. If he gets a favourable answer,
Its — ainoe as 3ret he has shown but some plausible case for
Uef — will in general send him before aome tribunal which will
imrtrncted by a writ from the chancery to hear his claim
and do what ia just Commonly that tribunal is the eichequer,
which may bo afforoed for the occatiion by the presence of the
:ljajiccl]or and the justices ; sometimes it is one of the benches.
iooally, but rarely, the chancellor is appointed to hear and
Tdrdde the cause*.
1 Hofit Ultcn. L Ce, 976, 283 ; iL 4S.
■ tUlp. JitriidtcUoa of ibe Hotue of Lati*, 47 ; BUckstoiM, Comm. iii. 46.
> 8m Bollt of Pwtuunent, toI. i. pai$im, and Msiltand, Memormnda da
S3 Edward I, An itutance of a caa« commitUid to the ebaneellor
BMon ia BoUa of Pari. i. p. 00 : * Veniaat partes conun caocallario ei Mtendat
a Ajkm qsara ipaoa neoit i vt fbi oin iaititis.' Sacb a rmpouso as this ii nue.
AlzMdy a pnedoe obtained of acknowledgiug dobla io the ohaDeerjr, and when
t
198
7%« Agt of BracUtn.
D
Thtiwo The kiag't eooit— to aay do mon of the aoEoheqver aod Uw tl^l
ciluuweT7 — ba» b«aD ilowly brafkinff up into thfTrT lrib""''f ^hft** VL » Coounai *up*^h » k';«j|'- h«.i^[j^ j^ ^ yg^ high" oooii. which id Uw dajn of Edward t wo m>y h>jtfhaBifaLB>U> tto Jk^igg w LVWMil or ttte Ki^g t^i ffu-li«tn<'nL A dofl bcfpui 10 Bppnr whoD Hmaty II. in 1 17H appotnled oeruin jtMtac«* la At permuu^uUy in hit c*>urt and hoar tho oooipUinU of all men. bat ranrvMl ihv murv anluotu oMot lur himoolf asd the wioo mea of tbo mim*. U itawppMiod for a whtW nndor t^ abMntiO Riehard; it OMppaarad ooder Juhn. who tiavalWd thivugh thu country with juatice* iu his train while iHher jnatiow wmainwl oo * ibo boach ' at Wactaiiiitar". A^un it diwppaarad for a while daring the minoritj of Henry III. ; wo eao aoa do pernianent. aenlial tnbunal mvo that hek) by ' tbo iustieea of the boDoh ' who lil tonn after term at Wertminlor. tfaoo^ the oooncil of rttgcooy may in aomo aort snpernao their wurfc. It be^ns u> reappimr and this time for good and all wheo Henry ii i^f full agv and doaa juetioe in pcraon. Pnim the year 1234 oowards — but the eomoidate eao banlly bo &JU)d — there are twu diflvrvut coufte, each of which haa ila own art of roll**. The ono in held bclore the juaticca of ' the bouch ' who m% ■» Waaf minuter, iu reooida are tho *de banco raUa'-, the other follow* the king, its iwDonla are the *oarBBi rege loOa.* A btigant aummunMl befarv the one i« told Ut ooue * before uur juatioea at Verttainetcr ' ; if ewwnwawd beforo the other, be «a«at appear ' befocw on whezeaoever ere ahall be in Bngiaad.' And then the Great Charter baa decrwed that 'iwmmon plaaa' aiv aoi to follow the king, but are to be beani in aoiDe oeftain pboe*. Tbua 'the bench' haa booonw tho appmpciale triboittl for
Ihk had bwB doo*. ■ writ al oaMMoe wveU toi wOlUr^ fc»eer. rMe, |k TV. Mwlloai Ihb w * Mt la «Mih a win imam ftwa Ih* ilimwy. Pol Imt* arffiadlr **•••• «>• >*■>• • jilllilllllll, fa> ilw OTdltat wtw iMd • ■■■■^■^■■■i tel la lbM7 •vHnrinrttoaJeiiMal lahkttvnm.taAmmttm weeUhnaei of mmmt. U k praUUi Ihrt ta 4m1I^ villi A* kl^ mmJU At !Hk»|iilillillii. #» fcy <i4lfag Hi Ml lei U< k7BnoMh« Aamm la wtitm ^ akktei pirtMfaB whriii; h«l OB llH wboli llito (lAi WMh flC Um voik isM te lb»
INtWv I* Ikfa iv) W On eodl tf m ij^al Ite «■» ■*»
Wtead.
• MnI rhH If Ua Cravtt (MdM iM.), if^ ■»-*.
* N««i Book. I. ppu M.M. • AuW. ItU. i. 11.
^^
CH. vn.] The Age of Bracton. 199
ordmary civil suits between atibject and subject. The eomple- mentAiy rule, which assigns the 'pleas of the crown' to the court held coram rege, aeems to grow up gradually and not to be the outcome of legislation'. The court held coram rege is superior to, for it can correct the errors of, ' the bench '\ Theu fr.178] early in Edward I/s reign 'the beisch/ though in formal docu- ments it will keep its old name and until 1875 be eimply Hhe bench,' begins to be called the Common Bench, Mid tha name of King's Bench is given to the court that is held coram rtffe, or rather to one offshoot of it*.
Wt have to state the matter thus, for the court that during Conpcii, Heniy's reign is held corain rege breaks into segments, r or and ordinary purposes it is a court held hy a few professional justices; but at any moment it may become a fuller and grander tinbunal; the king may be there with his counciUoiB; all the prelates and barons of the realm may be assembled. Bat whatever form it takes, it seems to be considered as ementially but one tribunal, 'the court of our lord the king held before the king himself.' In modern terras we might say that the court held before the king iu parliament and the court held before the king in council are the court of king's bench mised to a higher power. In Edward I.'s reign there comes a fiirther change. The term ' king's bench ' is brought into use to signify the court held theoretically coram r^e by the pro- fessional justices, and just about the same time a third set of plea rolls begins to appear. Besides the ' de banco rolls ' and the * coram rege rolls ' there are those records which we know
^ It ii of oompuattTely late origin. Then ue muiy erimiiul oases oo the de bcauo roUi of Edward I.
* Note Book, pi. 1166, 1189, 1190.
' In discuauoDfl of this obsenre otatter it has too often been forgotten that M> long as there waa a Court of Common Pleaa the moat solemn title of ite jnstieea waa * Jostioes of the Bench,' while in 1876 the jaetiees of the Queen's Beneh were 'JnstioeB assigned to hold pleas before the Qneen herself.' In 10 Edw. I. we have the King's Bench distingoished from the ' Qreat Bench' ; Plae. Abbrer. p. 374. Aboot this time ' the jnHticea of either bench ' beoomee a common phrase. Foss (ii. 160-186), riewing the matter from a biographer's stand-point, may be right in 6zing a late date for the final eatabUshment of the two ooorts, for ontil the end of Henry's reign the jndges are easily moved baekwards and forwards between the two oonrts or divisions ; bot long before this there are two parallel sets of rolls ; and Braoton may serve as an Instance of a judge who, so &r as we know, never sat at ' the bench,' bat for several years hdd pleas ' coram rege.'
Tht Affe of BraeUm.
D
M the * pariiiuDeal roUa ' ; >Jm a^rljj^ 81**"< n>^t cornea from
UlMvmnt
tbft ymr 1290,_ For mnm lime to coom, homrcr, Um deft h Dot Tftry <i««p ; tho moxo piM tbAi u found on « pwriumvnt roll tn&y be Ibund alao OQ > coram nyt roll'. For juflirid purpuaM tbe pAriUroonUry letiBoni of the council aux be coooeifod m •treogtlicoed. u * afforeed,* Mvioiw of the kiiiff'a beooh. All Um jmrtiees Bod all ifae chiefs of kha graat offoeB, all the inaMtM* in duuioery uid to forth, are nieoibeni of the oouitcil. «ad, if they ue not wanted elMwheie, will be nunnKmed to Ummi plenany ecwioia of the conncnl thai are knowo aa * parUamaitW Theiv remain in nuponfie niany qooationii aa to the oompoaitioa and juriodictxon of thia higheat of all tribuuahL la that tribtUMd to bo the aaaemblage of prelatea and barooa, or ia it to bo the king'a fxmncil ; ia it to be but a eourt of aeoood JnaUmee, or ia it to have any original jurisdiction ' The fuurieaBlfa eantmy muatanawiT these ((aestiona; the thifteeiiUi leavea them open". Ah to the court* held in the king'' ihum hy mtn who are acting under t«:mponuy commiwcaia. men who in a ku^ ecnae of the term are ' itinenuik jwrticea,* we moat aajr h«t tattk^ though were we to deacend to detaila much might be aud, far the king'a power to inue commiaaiona haa hardly a limit in law, bat few Umiu in cuatum, and new needa an betug emir and aoon met by new deirioea But we may diatiiigiiiah Uw naui type* of thtaie ooromiaaiona. What aeema treated aa Uw hnwhini ia the oommiaaiai) to deliver a gaoL Thia in the Utter part of Haniy HLV reign ta done fery frt4|u«btly ; genaraJly it ia by aome throe cr bar kai^ta of the shiiv, and thna^ long the institution of JDaticea of the peace, the ouantry knightji bwl been accnatomed to do high criminal joatioe'. In nnJer to diapoae uf the |a— wnry aaaisen of novel diweirin and
> HaW, JvMkdaaa(*aHM8ior2jorAi.^U.
■ Th* ynUm ftN- Uw foortiMlb antavy li mbI^ nala.^M: 'BaWiMiln Baa «•!«•■ Maatarawflfa Mala
^■^^^^■tfhlH ^■Kakf^L ^^^bI^^^h. ^MMrf^BL ^V^^^vl^^n ^L
(«arr. lariiparilk).' BmMm tkla iba May hai a vart (Ktai^
'loaa* MBm liif la AacKa*; dw ha kai a «mi«
llM<OacBMa)B«DilialW«i^aalw. Tha fanIM fM^ la
lOi) wwff !■!■ hat tw — Wal aoort^ Iha tm^ aW a
■tor* ^tMrnttj Um kiti«*« o«« Mort. wh«» hit
Maltkod. MaawaJi A. PwlteMnK M S4«. I., laaii^iilia. p.
■ ThaaCkafcridga |ae< a— a !■ hw kam irtitwii afcwa tmmKtf-\ ia lavaa jwa, >i«laali^ ««lh S BAv. L, IW MhaMn
of Df^ Till It, xUii-dU.
CH. VU,']
7%e Age of Bracton.
201
d'ancestor, a yasb number of commifisiona wore insued in overy year. Early in Henry's reign this work was often entrusted to four knights of the ahire ; at a later time one of the pennanent jusdceB would usually be named and allowed to associate some luiights with himself. Apparently a justice of assize had often to visfe many towns or even villages in ench county; his work pkMQ WW not all done at the county towu^ It must have been heavy, for these actions were extremely popular. In the second year ot Edward's reign some two thousand commissioDs of assize were issaed'. Just at that Lime the practice »ecms to have been to divide England into four circuits and to send two justices of assize round each circuit; but a full hi8t')ry of the circuita would be intricate and wearisome. Above nil the other commuMODS ranked the commission for an iter ad omnia placita, or more briefly for an tier or eyre. An eyre was by this time a long and laborioas busineitft. In the first place, if we suppose an eyre in Cambridgeshire announced, this bos the effect of stopping all Cambridgeshire business in the bench. Litigants who have been told to appear before the jUHticei^ at Westminster will now have to appear before the justices in eyre at Cambridge. There is no business before the bench at Westminster if an eyre has been proclaimed in all the counties'. Then, again, the justioea are provided with a lung list of interrogatories (capitula itineris) which they are to addrcas to local juries. Every hmidTed, every vill in the county must be represented before them. These interrogatories — their number increases as time gOM on — ransack the memories uf the jurors and the local reoorda for all that has happened in the shire since the last eyre took place some seven years ago ; every crime, every invasion of royal rights, every neglect of police duties must be presented*. The justices must sit in the county town from week to week and even from month to month before they will have got through the tedious task and inflicted the due tale of lines and
* Bnctan took Devanshire aMixM kt Eutcr, Moroliord, Moltoa, Torriugtoa, CkolmMglit B«nuUple, Cinlterleiith ; Not« Book, i. p. 17.
* C»l«id*r of I'ftteot lioUs in 43rd K«p. of I>«p. Keeptu.
' Doring Btxaj'a nign there soi-m k> hftvc been wverKl jvtn in wbioli DO •onrt WW ntUng kt Weslmiiuitcr, eynn hsviDg beoD profllsimed ia bU or BVt of Ibe eottottee: Note Book, i. pp. 141-^'i.
< Aa to than utnleB we Select Pleas of the Crown (Beld«ti Soc). p. xzif. Mora or (ham In oar MoUon on Treepuwe.
IMmhIi of lojml
amcmimonUi'. llirM or four of the portiuuiont judge* wtU bo ptftotd in the oommianon ; wilh them will bo moei»UMl fnia* of the megnatoe of tho divtrict ; biihop* and ereo ftbboto. lo the •ondal of etrict cbarchtnon. h«vp to M^rvc as jnatioee ia eijm*, Probubly it wm thought expwlivut ih*t ume of the grMi El^ freefaotdoTv of the rounty «boQk] be oonmiMtaiMd. in ndm thM BO mm might my that hU jodgee wm not bi> poatiL Ao «)n* WM A Mtt' burden ; tho moo of Cornwall fiwl bttfore the 6m« of 4h« juAtict«' ; wr hear weiertinfM of a binding cuslom that « •3m fthall Dot take pUoe more than once in aeten jrean*. BvpedienU vcn \mog adopted which in ooozse of time wo«ld enable the joatieee »f a«ijBe to pneide in the country i>rer the trial of actioos which wore pending belore the bcodioe ; lliaa without the tenon of an eyre, tho trial of eiTtl actione wooU taku place in iho ooontioe and jumra wuald no lungvr be oalUd to Weatnuneter from tbeir rrmow bomcA. But thaae expediaBfta belong Ibr kbo more part u* Edward's rngn : ander bie ftUher t jury wearily travelling frum Yurkahire or Derooshiir towmnb London mmt have been 00 very nnoomnon aagfat*.
The king'x oirarta hare been faat beooming tha only jwboial trihuiiaiji of any great importance. Thniughnal tho reign the balk uf their plea nilU incraaaed at a rapid rata. Kvafy tho bunch at Woatminalar eniortaiaed a multitade of Tho litiganta who eame belbrv it were oA«D men nl lowly nnk who were quarrelling about Hinall pareela of land. Tbongb wv
«M» Dm iMi «ria^4
' Tht pnnKJlBfi of Ml fn «*a W hmi tlodM la P«c«, Tkta* AMtaa Mto lor Nortfaooibwtaad (fhtntm Boiiigl. nd io Ika foUa mtuA Mr rfcijijit BMlir k pobUAliV tat tlw WiMMm*hl IkMid BoiiMy.
" WMirpi «M iumtf ■■^liijil ia Hm am •yia •! fk» M^i. Im IW lb> in iilela initi aa ■hhol b a tmmiaj ; Bob. OiiiMiiiiii. Kfiailii. |». m*
tm.
> Aaa.DraA pbUI(l«ttl: *4Mn«Mlao«aMalia«at * Aml Whtorn. ^ 440 (tMly Oam BdO. Bm. IIL Ha. n. •. M
•grva la ll«rto(k !■ poai|Maad •■ Mf« 7MM feam BM ala
> A *aU fffW' eUa« wm OMHiaaaUj oaad •• •ariy m ttSt; mt X«l» Boeh. pL Tn and nwaf eUwr «mh. THt bvniNi of ^17 ntviM v«a 1 liihdwihh w it aricM aMia. M «• iMi iiwanlw (I) tiuu hy ^ «>» popolar af kH *illnai •«■ Am tadam ot wmfti iltmiM fflthaiih— Mitaw^aotataiiBiril tttoa<rt»wi paJtag la tfeaeMrtU WMtelaMw. ta« wtM iMa «h* WMM ar Itefa lawittM wari^ad to •Tairiaat <q ttat'lnavaaa'dUaallaeBMewBMo aaM lal* la iht ft) thai tarera ««• MMa* le^eli^ hr ■■Hiai •! 4At or intaai aa fBoMMaHi W Bal a *paaA ■ariw' waa. or «««hl la ka«« taMafkaiflllK.
hear some bad stories of corrupt and partial judges^ ^_m plain .
1 fihat. t.tiifl pfjiyerftil, central tribunal must have been well truated J by the nation at large. Rich and poor a.like would go to it { u they~could! The local courts were being stan-ed, and this result we can not ascribe altogether to the ambition or gre^ of tlie lawyers at Westminster. Of bis own free will the isniall Ma] freeholder passed by his lord's court and the county court on his way to the grt-at hall. He could there obtjiin a atrong^er and heitj^r {i-p^iiqioditv than any that was to be had ftlsewhere, a Justice which, as men reckoned in t.hose days, wm swift and nmsterful ; he could there force hia adversary to submit to a irerdict instead of finding that his claim was met by aonie antique oath with oath-helpers. The voice of the nation, or what made itself beard as such, no longer, as in 1215, demanded I protectioTi for the seignorial courts'; it aaked that the royal court ahotild be endowed ivith yet new and anti-feudal powers ; it was to be in all tempoi-al cauaea supreme'. Men were faat coming to the opinion that it ought to be, in Bentham's phn^e, ' omnicompetent,' and that for every wrong there should be a remedy in the court of their lord the king. This ia not an idea that is imposed from above upon an unwilling people, Bracton himHelf, the royal judge, the piflfessional lawyer, does not thrust it forward as an obvious principle. He explains or even apologizes for certain manifestations of kingly justice which may seem to be at variance with feudal rules'. But still this principle is at work: it is the king's business to provide a competent remedy for every wrong'.
The number of the justices whom Henry kept in his pay Thejodges. was never large. If there were some three or four in his train
1 Mkt. Par. T. 318, 23S, 240, ehuges against Hem; of Bath; v. 628, against Henry de la Uare.
> Charter, 131S, e. S4.
* Petition of 1358, a. 39: the great lords are not to make their ooorts tribnnals of seoond instance. PronaionB of Weatminster, o. 9, 10, damages are to be giren in the assize of mort d'aneestor ; o. 6, prooedore in dower ujtde •■All kabtt (an aotioa whioh ooatooTerts feudal principles) is to be speedier; c 18, the royal control over all actions touching fireehold is to be seonred. Stat. Marlb. e. 29 : the scope of the writs of entry is to be extended at the expense of the vrit of right.
* Braeton, f. 106, a defence of dower ujuU nihil habet; t. 381, a defence of the writ of oosinage; oomp. Mote Book, pi. 1215.
■ Braeton, f. 414 b : ' pertinet enim ad regem ad qoamtibet ininriam com- pesoendam remedium oompetens adhibere. '
204
Th^ Age of Bractotu
[SK.
*
to bold Dm pleM oorwn ngv, Mine Ibvr or five at ' Uw
Uid thn*i' or four baronit in the exchequer, this wan BooogL Dnring the iMt yamn of the reign * tfao bench * moamm to hart bat three, or even Ixit two. ooeapanta*. Thew jad|!«a are very truly the king'* semuitii; he can move them aboat aa •eeou beat to him or ciiamiw tbam at a mnment'a ootioa. ftr ricnr deareca the work of hearing and deciding cauaea ia boing dwMgiyd from gOTommental bawnww. Thp udice gf a efaiaf t»<| jmiiaar who m both the king** prinic>minifct«T nud th*- preaideot "f thU hig^"**- *^* y*ttrV h*****™* Bx^fflct. Evun Hahcrt da Buigb had hardJy ftUed the pbwe of Lticy and ObumU. of Hubert WalUT and Oeofirey FiU Peter, for be aeUcn at on tba bench. Fur a nhort whilo after hia fall in 1S8S thm joaticiafahip was commitU'd to a lawyer, to Stephen S^mve; but from IS34, whrn Segrave waa di^gnwed and dinaived, oalil ] 2£&, whea tba tiroo uf rvvoluiioa waa at band, the juatidarabip waa in abeyaaee. The title was tban rerived and borne for a seaaon by Hugh Bigot, Hugh le Duapanaar and I^ilip DaaaeC. iwboM namas repreaant the aitaraating fortniMa of betiooa. At laat in H68 Robart de Brm. tba Ibttira ' petitor' (or the crown uf Scotliuid, waa ap|K>inted 'chief jiutieiar to hold plaaa before the king*; and the wunla thus added to the oUI title signified that only for judicial purpoat» waa be to be chief juHtiriar*. Wjih ^lim bt^yn the new Kna of the chirf jand who aw- but the ptindcate of a Jaw ootnl^ aboot the lanM time tli« prwnili
'MlM.r.Tr!W':^:
bench' baeaa to be formally rtyJed ita ehfaf It wai DO longer expeoti.-d of tbe jucHgv that he aiionld a •tatennan. or of tbe ■lalilimi thjit hi* •h<iuld be uApail iu tbe law. ^1 hflT.lff^Md fjtt^UinU that th<- king paaa
*lt
» y— I, .f ifl^a, tt. m. U fa MBwalMl W i<w ia» tflto 9l'9kU l^wgtMailiii^liil of Ha hiai^ twh wWaa ti^ai at w ihw iiiBil^ *oktaf JanUbr' Hor Iha Hat af am nMMn ar vtan^a *WA li fcumalim ntiaai. Birt thta i« a mAn artMaa. 1W dUagi W i«yW aai naQj a far; tm^ aaai U aoaiirtiJ in riiliai to lh« flU tfitf JaMMatfM AnIUm* lb* U»Uh« Ma4» *•< plMMa mhh ^ k^ m Utta b oMd. a jMltet b « l»iMai-lM. a dhM laialM ta a hwihtolw. lBlh«t«^ihwBi«7JMttMatftlhaMlke««nHaOT«lfaL
• fc^ JiJ.^ Ui. 141, taakm QOhmi PiIm Ite iiM ^M MMte tf
CH. vn.
The Aye of Bracton,
205
just what he wants; but some of the judges of Henry's reign were knowu lo their couteiuporaries merely as great lan*yers and seem to have earned the respect of all parties in the state'. Ikfauy of them were eccIetuaHtics ; among such we
may cieriMi reckon Martin Patet^huU, William Raleigh, Robert Lexington,
^H and Bc
^H rcckot
^K^iliijim of York, Hcmy of Bmttoa. £vci) Stephen Segrave
^^HRms to have had enough of the clerk abt^ut him to oerve ua a
p.i9«] shield again»t temporal justice*. Bishops nu longer steadily sat
in the law courtB, though they might now and again appear as
»juf<ttces in eyre ; but cauonries, deaneries and even bishoprics were still to be earned by good service on the bench ; William Baleigh thus won the see of Norwich and William of York the see of Saliabiipk'. However, all this was becoming somewhat flcandalotu: the clergy were being fyrbiddfn l>y >!■*■ i^-"- ^-f tb" church to study temporal law or decide temporal eaiisHa* Before the end of the reign the lay element among the king's
I judges ia beginning to outweigh the eccle^iiaHtical ; Thomas Multon and Roger Thurkelby are lai.Tuen who make uauies for themaelveB at* learned justices*; but even of Edward L's justicea not a few were clerk». Thia ia np >""°" phmij^nj jf means that the study of English law is falling apart from all 'other etudiea Juat at the same time a class of adv^■'•t^1;^-^ w^.t pfHCtiacd in the king's courts was forming itself. Some of Edward's judges had practised at the bar of hia courts; his falherV judges seem for the more part to have worked their way upwards as clerks in the courts, in the exchequer, in the chancery*. The change brought good with it and evil. Our
^
■ Mat. Par. Chron. Uaj. iiL 298. Aqu. fiarlon. p. AOd-9 : ArtiolM of inquiry into
< Note Book. t. pp. 34-S.
» ec. 1,2.4, 5. 10, X. 3, ftO. the UCo of the olergx; ' An &llqtti ftmt...iiutitiuii ■twiilftrc«...An aluiui henrfi- «i»U aodi&nt t«) dooeuit legM MWOiinB.' OroaastwU, Epist. p. 206: Robert Laiingtuo bu pil«d itTBgal&tifyirpo& iiregaUrit^ by beariDi; crimiiml cauaes on Snaday. From ftnothfir letter {p. 106) we learn th&t a clerical justice would Mira hit cofUcicDee by leaviau the bench wbea a Knt«ccs of death waa to b« f ■«! The filetlu who write the plea loUs have Mmplm about wrilini; the won! ' waptttdalar ' :— ' at Jdao babeat indldum launi,' or ninply -el idao etc' wiU be quite «Doagh.
* Mat. Par. Cbroo. Maj. it. 49 : * Tbootas de Muletoiu, inUda in amds mun itiTvattH ai arridebat, et cum provcetioria eaaet acUtiB abandans pows— JottibaB kq^aqne periloi saeeularis,' Ibid. ▼. S17: 'Rogerue de Tbarkebl mUsa at Utaratua.'
' lAnreDoe da Brok, who often represented Heory III. in litigation, aeaitu to ba one of the (Uat meo who climb to the judicial beach from the har ; Foea, Judfrn, 0. SS7. U b bgr no meani impoMible that Martin Pate«baU was ctetk
SM
The Age of Bractcn.
[mH^
w » little lew dependent on tht? king than the^ _becn; oar Inw wm protected againat RonuuuMa ami cmr coiutitutioo against cbv tuonarchioal ckKtrinea that Rooiamnu might have brought with it Qn the o*K«> jimri, ^w ■— frDD litenton; tha a<te fiar law rroarta^ for Yaar Booki. hadooinej ih<* lifj^ M a great expoeition of Engliah Uw had gone Eji Happily in the fnlnew nf the time ibo work had be«D done.
Bnctan-f^ BnKtoa'a book la the crown ami flower of English mMUeval _ ~^ jttriii|iradenoe. VThat we k&uw uf iu author ha« bc«n writien ^""iwowhAro, and may her* ba mmntvd np rcfy briefly'. Hie name waa Hauy "^ Bratl-un ; ho waa a Devooohira Biaa, and in all likelihood he began hi* mreer aa William Ralaigk'a cl«k. In 1S45 he waa already a juvtice to eyre and waa holdis^f a di^Mtuatiou granted by Baleigb and ooofirmed by Innocnii IV. for the tenure of three benafioeo. From 124H until hi« death in 1268 he steadily took amiws in the aouth-waitcnk eoontiaMb Frum 1 84fi to I S.'ST or thvrcabotiu b*-* waa among the joalaaca who bdd pleaM ooram ipao rttft: in other wonb, he waa a juatioe of lh« naaoent court of King'* licnch. and the veiy / highest plaom in church and Ktate muxt have weaicd to be n opan to him. W<< may ueo him witac««ing the king's charts* ■long with the great folk of thv rralm. Shortly after tUi^ however, bo appvan to have rvtirvd or been dtMoiaaed from hia pontiun in the eentral court, though to hit i^yiag day h« acAcd ai a jujitice of aanae. In 1269 be becama KMor of the Diirfa»- ■hire pariah of Combt-in'Teignhead. in 1261 rrctor uf Bidolbrd, in 1204 archdeaooo of Bamirfaplv. and in tha «me year chaDoellor of Exeter eathvdmL 'Ilius he leama lo have left the king H oonrt joat at the time when tha ravolntaonary miiiiimmiI that preceded the baraoa' war came lo itai Ant oris* ; and joal about the aame time he waa toM to reatore to the tjimmry th«< hug* store of plea rolk thoae of Martin Pateahnll and William Raleigh, which had been in hia poaaeadm. Wbather he waa diyacad, and. if ao, wbetbcr he had oftodad tb« king ur iba
to Bbaoa I>»iwImU {m» aWn^ p. Itm, ilbM VBtUa Bilij^ wm lte«^« ^mk (UAilkad, OlouaMnUn Pliw of tW Cm,^ p. xUQ. tkal Itiirt ■ «w ■aMgk't iiuk lad Ikas lifarilrf Ito na» Itel k* m4. WHm ti T«fc hoAhMn aibrfclB the I i j : •! niiBl *m bw Ik* Aielfcii *m w
f inaMw or mr vdiit. a IwUh Mid ■ UnMafc' «p« Hat llM7i Mk. M^ V. 174.
CH. VII.] TSe Age of Bracion. 207
barons, we can not as yet decide. In the last year of his life, ID 1267, he appeared once more in a prominent place; he was a me-mber of a coramission of prelates, ma^ates and justices appointed to hear the complainta of Hhe disinherited': that is,
■ of those who had sided with Simon de Montfart.
™ His is an uniinitihed book; we do not know that it was BiK book,
published in his life time. The main part of it seems to have
H been WTittenJbetweeii 1^0 and 1258^. the time when he, had to surrender the plea rolla ; apparently he was still gloBsing an(i^ annotating it at a later time ; but at present we can not always / -^
u6l distinguisb his own addicit^nes from these of later commeirj^^ tatoiR. A * note book ' has comp down to ws which seems to have been hia. It contains some two thotiaand caaes copied firora the rolla of PatesbuU and Raleigh, over against some of which marginal not^/H have been written; to all appearance they
• came from Bractuii's hand or from Bracton's head'. Romanestjue inform, English in substance — this perhaps is Cbarftcter the b^TTirief phraite that we can find for the outcome of his i«u s work. labours; but yet it is not very good** He had at his command and had diligently studied the works of the famous Italian] lawyer, Azo of Bologna ; h^ also made some use at iirst hand of icalJnn varioos parts of the Corpus luris Civilu!, of the Decretum, an^ of the Decretals, and he levied contributions from the canoniatJ Tancred. His general idea of a law book, of the method by -which law should be expounded and legal principles har- > monized, baa been derived from these sources. He has borrowed from them large maxims, such as might well be conceived as parts of universal and 'natural' law; he has borrowed some more specific rules, for the more part such as deal with matters of rare occurrence in England ; he is guilty of a few classical pedantries and sometimes uses foreign terms instead of those that were current in the courts. It is highly probable that if many of his fellows on the bench had shared his bent, the romano-canonical jurisprudence would have be- come s 'subsidiary law' in England: that is, a law to be adduced when enacted law and customary law had no clear answer for a question ; but we can not treat his book as a
> Bracton's Note Book, vol. i. The discoTery wu due to Prof. Paul Yinogradoff.
' 8m Ottterbook, Henricoe de Bractoni Somtton, Boman Law in England; Braeton and Aao (S«Uen Soc).
/
SS08
The Age <tf Bradatt,
[WL
pniuf ihnl Huch wiu> the cane in his uwu dav'. We do nol kDow that any of hi* foUom hmd more than that auperfteaal aeqaaiafr" >- ■ anoo with th« law of the ohon^ which waa oomiaoa aaMiif eoclwriiHtiq* : ihvy mif;ht hv arohdoaoooa. the j might hope to he bishofM, but the judictal fttocttooa of biahopa and ai eh flea WW were by this time commonly delegated to thoir pntmatmaXfy knanied 'offieialii.' Bat furthur, hiit owa knowted|ge uf Romaa law wait by uo mcaua very deop when judged by the tUadatd of his time, and we have little reaeoa br balienng Ihal be had aoquired it acodemioally. Him neology leaTca 00 wtuk 00 the tedmioal language uf chtA cxiurtii; tlu* 'tenant for tenn of yean' doea not become aii ' omiCructuaiy '; and if upon a plea nil we find a litigant made to talk abotit the eorpitB and oaMM neoeiwy fur pameenion, wp shall Hiid that the hjU te Bnuilefi' own*. Still BroctoDt <lebt — niid thenforo our debt — to civiliaiui ifi ineetinably great. But for them, his booh would have been impaasible ; but for then, as the fngrtespth eentaiy will show us, some b^g&rly oolleetion of antwiUled write would have bevn the beet that we Hhould have hsd from him; we should have mined not only the MjiUfnJld plan, the orderly nrraogemeut, the keen dUcmuwi*, but abhj the acMdoCal apirit >ftbework*.
On the other hand, the main matter of his trealiae is ganaiae KngliiA law laborioaaly coUeoied oat uf the plea rolls of ifie
^ Tb» OMiMt iLii^vMah le »o «4mi«ioa thai Kaoui k« mtf tm to ato «at EagUnb kw b 10 W bead on • roll of IttT-S, Now Bo^. pL Itn. Tbs qoMUno b •■ lo whatha- a folalintto an W jartiHi—i wag m hm» 1 III! ■MiMlw. vnltlm tai JmUim imUn Ihsl Umj owit hmH wt m «•«. tfaal Ibiydo aet kavw wfastkef lh«» b M]1kias akMi h km Certs>awHWyUle>»Mle»lhiilga|iiiilMii>>a<i>atihiyW<»— m ■Mb CMt /■ tor* ttHfim <!« ia BoMas lee)f Ihwiiiw A« i^i ■!■ ikv Hati^rm Any aotka thai Ihk ssaatiT VM In Mir ««ar "e^Nl to Iks i^pta* wesM ham htm tmtoi ia Bitf ■■< Jort vIhb Bnotoa «ai «MI^ kh^ WsMS BtaMlr mtabto tkat Uw Invwor hrlfce lbs* trii^ Men. vWa to liilrfiiil. b« % wbfMl Md vMal ef As klsf of Wai^nl ibmsantos (hs «m M*a Htwiamrm tm^tr ma^mmm) eas BOfil ill ill hi] PlHtt. AMrvT. ^ lU.
■ AUnv. Ftoelt. p. llSt *Baa4«aB a* Aiakit Am ivnt Ola aaiSML* tkb la bon b«m of iba raOa «bbh tmaA Biiiiiii't iitop aa • iHtba ^ OMM. Tbay wa to U adltol by Hr fliartajifc BaUy. Aa to tta ■ ■ftnl. mm BMa Baak. L p. •!-«.
• Bwtao. Lflb,lt 'laadbitaran koal at m^m^m wamtittim apy Jil i liiilllliii oms^m eolteaa ai aMni iv nb old iteaaa (Dfg. I. L l)bDo«aM la BvMtoa'* wiviki ha tori* ibat t* •»_ a priaal of lh« k*. a yrbal lor *tai oOar iba artet ti Ulptoa.
CH. vn.]
The Age of Bracton.
209
king's court. He expressly cites some five hundred deoisioDs. id whenever we compare hiR treatise with the records — and this cau now be done at innumerable points — he scem^ to / lie &irly stating the practice of the king's court. No doubt r oar roodern, our very modem, conception of rigorous ' case law ' was far fironi his mind. He assumed a much larger liberty ofV picking and choosing his 'authorities' than would be conceded x^ now-a-days to an English text-writer. Bat still his endeavour is to state the practice, the best and most approvefl practice, of ^^the^ung^H court, and of any desire to romanize the law we ^B^'^Q^ absolutely acquit him. To take the most obvious instance, in the controversy about the legitimation of bastards he is aa stauDch an opponent of the leges and canones »8 the most bigoted baron could be, and indeed we find some difficulty in abeolving him or his teachers from a charge of having falsified MS] history in order to secure a triumph for English law'. The few political inclinations that vre am deled in his buuk are those of a ro>'al justice; they are anti-feudal and anti-eoclesiaatical loaoings. He will maintain the state against the Teudal lonts, the^kingly power against s^i^orlJit jlistiue, uud piuuB tihUKh- man. dutiful son of the pope, tflongh ha h6. hfl trtll maintain the state against the church. As to the flagrant disputes between the king and the incorporate realm, the universitas rtgni^ perhaps his mind fluctuated ; perhaps, though no courtier, he sometimes said loss than he thought; but at any rate hiw Rmnpnwm hng nnt rq{i|dR hjm an advocate of abaolute
I
The book was successful. Some forty or fifty manuscripts Uur Uw
> NoU Book. I. lOi-116.
* Por the ftoti-feudftl inclinfttion bm tli« irgoineot hi bvoor of (rea ; BimotoD. f. 45 b— tC b. For the aDli-eocIesiutical teDdeuoj s«e Uiu wfaok twalmgnt o( tb« writ of prohibUion, f. 401-410, mkn; fteiit«oceii in which flkll; Qootndiot cUinu which were being made b; tho high cbanhmen of the tUy. BEUioa, however, If we miatake not. la wilhio tho eceleauutioal ipben a tbiMaagh-saiiig pepalist. fie Modbet to the pope not merely n jarisdiotion, taa an oriimtri* inhadietio, orer all men. As to his poUtit»l opinioDa eee Note Book. I. pp. S9~4S. We eso not decide what they wera notil somo oertain Mimvr bM been (bond for the i|upetiuQ wticthur be wrote the Oer; words od C. N: bot the modento and unqurNlJonod pawu^e on f. 171b is enough to illtpm thai be «■■ neltber a courtly flatterer nor a champioa ol dwpoUo CBOBBtiigr; this however ia evident enough from many other puMges. iMhidiiiff that tr. 107) io whleh he wilfully dlaiorto (Mote Book. 1. p. A) the 'Hd «| quod piiad^ pUenit.'
U
910
7%e Age of BracUnu
[>
of it will M»m a tnifticMDt hoAy of witoosM lo ftUMi itfl papttkhty, capcciully wb«n we remember thai tlw iMt •ome of oar oldert Year Books ha» lo be wught for in aiui| OopMM. It beoame tlw baaia of th« legal litenUan of Bd Vn day. Utlbert Thomtun, chiuf jiuticc of thr king'a bench, BMck Ab •piboiM of it'. Ilua w« fa«ir« kiat, nnli H b* rtpnMottd hf noo of thooe manoaoiipta of fitaeboa'a wock which omit hia refcrenoes to the pl(« rolla. Aboot the ymr 1290 two other books were writteo which are to « gnaat degree reprodactioiu of the clawcal treatiw*. The so-oalled 'Flat*' is little bettor than au ill-arrmngvd epitoiDe; whal it« author has not borrowed from Bractoa he has far the mat% part borrowed from some of those tiltle tnete oo hwfattodbT' aud the economio managemctit of manorial afiiira which ware heeoming popohr*. The so-oalled ' Briitua ' hatt bett«v cUim d^l to be called an original work. It is in Frvnch, and the wbeW law has been put into the king's muutK It must have beHi useftil, manoseripts of it are common ; oo tbo other bond, FVui was to all appearance a fioiare. To iheee we nqgh& add little tiaota en proeednn aeoritK-d tu Kalph Hnnfhain, miii oC Edward L's chief jostioca. This bowerer is not the which to speftk at any length of thcae products of the Kd age : but to name them baa been nwnwsary since sotncHiaes they will help us to discover the law of Henry lll.'i reign what Bractou fiuls oi. After all that has been dune towards pnUiak- ing the records of that rt'ign, we shall still be dep»iant tm BiacUm ; but euougb ha* been published tu ptove that be is a guide who will not mislead us, if only wo are oacvfol lo dkskia- guiih— and this is not vevy difficult — between ha slaleaMOt of Frg*"** law and his ooMnopoliUn jurieprwIeBea.
Of other Uw books of HenryV nago little it known and little need be said; the gap between them and Bractoa'a 5iMMaa is immow Cbpiesof the ehanest/s'regisler of original writs* wen praity widely distributed ; often a religions bonae had a oopj; aonutimea brief notes of an intensely praetieal ehaiaotar wonM be written in them. Iten ia estant, and wnr Sa the pfeae, an intiiiMliiig hooh ef ptaeedonu fur the use ef
plaor iiM dwaidia^l
* Wftltar of Bwlqr. ^
I
tl«'
I
I
CH. vn.] The Age of Bracton. 211
in the king's court which belongs to Heuiy's time', and from that tiine we begiu to get precedents for the use of pleaders in the local courtaj conveyancing precedents, and precedents for manoriaj accounts" ; al^ biief dbquisitions on rural econocny which throw light on legal a^raIlgenlents^ Ouce mure we must nientioT] — though thej are not literature — the volummous rolls of the two benches, the exchequer and the chancery. About the middle of the century these are being supplemented by the rolls of local courts*, while much may be learnt from the nianori&l surveys or ' extents,' numerous examples of which have been preserved in tht ixtonastic cartulariea and elsewhere.
Before thy nm\ aj the thirteenth century there already exiets n>*l««al ii Iega]p0iU!aai5g, a claee ol tnen wna make money hy repre-_ te^ntmg litii^^^]^nt.K Wnr^ ^l]p t^gurta and giving legal advict;. The evolution of this class has been alow, for it bas been withstood by certain ancient principles*. The old procedure required of a Uttgant that he should appear before the court in his own person and conduct his own catise in his own words. For one thing, Ihe notion of agency, the notion that the words or acts of Roger may h« attributed to Ralph becaune Ralph has been pleased to declare that this shall be so. is not of any great antiquity. In the second place, so long as procedure is very (urraal, ao long as the whole &te of a lawsuit depends upon the exact words that the parties utter when they are before the tribunal, it is hardly light that onei of them should be represented by an expert who has studied the art of pleading : — John may fairly object that he has been summoned to answer not the circumspect Roger but the blundering Ralph ; if Ralph can not state his own case in due form of law, he is not entitled to an answer. Still in yet Pieftden. ancient days a litigant is allowed to bring into court with him a party of friends and to take * counsel ' with them before he pleads. In the L^es Senrici it is already the peculiar mark of an accusation of felony that the accused is allowed no counsel, but must answer at once ; in all other cases a man may have counsel*. What is more, it is by this time permitted that one
1 BierU FladUift, now being edited by Mr O. L Ttumer.
* The Conrt Baron (Selden Sec.), Introdaction.
* See Um edition of Walter of Henley cited above.
* Sdeot Fleu in Manorial Courts (Belden Soo,}, Introdaetioo.
* BnuuMr, Forschangen, p. 889 ; Branner, D. B. Q. ii. 349.
* U^ H«nr. 46. 47. 48. 49, 61 § 18, 19.
14—2
21S
7%« Age of DtftctOH,
[BK. Li
AHf^*.
of thocie wbo ' an of eounKt with him * sboald tpeftk Ibr Um. The captioiuDflaB of iho old prooednre is defeating iu own Mid, and n a man ia allowed i<> put forwan) sume aa» alaa to qiik (or hiin, not ui order that he maj bo bt)UDd I17 tfaafc olhar penon'a words, bat in order that bo maj b«T« « oliannB of coiTBcting furtnal bltind«« and mppljrlng omiadoni. What tha litigant hinuwir hiM said in court he ha* oaid 0000 and fiir all. but what a friend hai said in hii Ciiroar ho may diaT01r^ Tha profeflaiona] pleader makes hit* wny inU> the oonrtit. not aa oo* (^] who will rapreaant a litigant, but an ooe wbo will atand hj tlw Utigant'a aide ud apeak in hia fitvour, subject boworor to eonvo- tioo. fur bin words will not biod hiji client until that client ha« •xpivwilv uT Ucitl/ adopted thorn. Pechapa Iho maia dgoet of having n pU«ader is that OM may hav* two Aautm of pliiling oorrMAly. Even in the thirteenth century we may aee tka plpjulpr disaTOwed. One John do Planex, in pleading far Williaiii of (Juokham, called Henr>' XL the gnuidfothor instead of Iho ftUber of King John; William diaavowi^ the plea, and tlw advDoate was amcroed for bis blunder*. And k, befaro any one is taken at his pleadar's words, it im usual Ux the ouaii to ank him whether be will abtde by the plea* Jtui hsraaai the pleader makes hln appeanuKie in this informal fcahieo. aa a nsre friend who stands by the litigant's side and pcovivooally ■peaks on hii4 behalf, it is difficult for ua U» diaeover whcCbar pleadeni are oonraumly ompkiyed and whether they are already membera of a pii3<i— Junal olaaa, The formal rvcacdi of tit%iAin take no uottce of them ualea tbay are disarowed*.
It ia otherwiae with the aitumey, for the attomry ruprsaapto his principal : he has been ^pointed, attomi'd (that ii^ tMined to the bosineaa in handX and &r good and ill, for gain and less
* L^. H«ir. «6 I •: -Boaaai uam Ml. ol mm illuslsi •sarill^ Is pUdlo iwdditar. otns —MJrtaw dfawnJiiifi pfai4la*aw, bI ■! farts ^mmatm vri mgmmkimmH diqaU. ni «■!■«», — lAiii tta^ si ■■«■ miim at. m la saa sia» qsb nimM fidial foaa in rifcjiwi , M ta on akmimm ftrnwrn^m pal«<l MsadM* «ae4 la «w aoo Uoavt.*
* HeH Book. III. fM SstapLUli 'teAvMSltsttlavnrtOTMM |M«a BunrlC So hi ft IMt; 'Ak—t fc Wiiliiiiiiiw ^sli la MiMfiMAh. imta KommUm dsalKomti UI <
> TW Ooart BaroB (Bat^m kc^. p. 41. Milii ■111 te ttb ; fcvri te tfc« T«r ■oata. f^. T. B. M-t B4«. L, pfi. V7. 4Ml
* Umi. Vm, Ghns. MaJ. tU. IM. U b m? Uw ki^sbnahw Esd Blit 11* Hi OmawM Qm boa ■ tiM alha* sisisMs laMsaaMWsr ilaal 11 1
(od lucmndum e£ perdendum) he etands in his principal's stead,
H Iq England and in other countriea the right to appoint an
attorney is no ontcome of ancient folk-law ; it is a royal privilege.
Tbe king, as is often the case, has put himsdf outside the old
law : he ftppoiuts rcpregentatives to carry on his multitudinous
u law-suits, and the privilege that he asserts on his own behalf
H he can concede to others. Already in Glanvill's day every one
H who is engaged in civil litigation in the king's court enjoys this
I. I'M) right of appointing an attorney, or rather, for the word attoJ'ne^
is hai'dly yet in use, a re^pojisatisK But the right is naiTowly
limited. The litigant must appear hefore the court in his
proper pereon and must there put some one else ia hia stead to
gain or Ioaq in some particular plea. Whatever is more than
this can only be accomplished by means of a royal writ. Thua
it ifl only under a royal writ that a man can have a general
prospective power of appointing attorneys to act for him in
future litigation'. Such writs are by no means matters of course;
ihey usually recite some special reasons why an exceptional
boon should he granted: — the grantee is going abroad on the
kiug'a business, or he is the abbot of a royal monastery and too
old or inBrm for Uhurious journeys'. In the communal courts
A litigant could not appoint an attorney unless he had the king's
writ aathorizing him to do so*.
The attorneys of the period which is now before us do not AttomejB
not pnsei-
aeem to be in any sense ' officers of the court/ nor do they as eionai. yet constitute a closed professional class. Probably every ' free and lawful ' person may appear as the attorney of another ; even a woman may be an attorney*, and a wife may be her husband's attorney'. A bishop will appoint one of his clerks, an abbot one of his monks, a baron will be represented by his steward or by one of his knights. Occasionally, however, as we look down the list of attorneys we see the same names repeating themselves, and draw the inference that there are some men who are holding themselves out as ready to represent whoever will employ them. A change comes in Edward I.'s day which
> OluTiU, Ub. xi.
* See Stat. West. IL c. 10, which gftve a general right to appoint sn attorn^ to ^>pe« in all oaoses which ahoQld oome before the jastioeB in a given ejrre.
> Begiatmm BreTimn Originaliam, fl. 20-22. « Britten, toL iL p. 857.
■ Seleet CivU Fleaa, pi. Ul.
• Mote Book, pi. 842, 1861, 1507.
su
The Age of Braelmi,
[bk. I.
For
at i^H
gives a new dettiuteoui to the ckM of attoniejis ■« w«ll m lo the cUm of omioMllora.
Reouning for a moment to tfae clan of ooucudlata. obaervc that Kichurd of Aneaty, wh«o be proaeouted bia todiouc mit, fottowtid th« royal court in ita peivgrin»taoiia with a ffnmp of '6i«od» and belpan and pleadan' in bia inun*. Fi hti litigation in the ecdeNtaatical courtji h« natnvmlly raqi profflarioDol aid. aod be had it ftum Italian lawycni roaidoot Uik ootuttiy ; among them was Haelcr Ambniac, who was ttwy Moae odo of the fint lawyera in England, tint in tiaui ••' wall an finl in learning*. Bat even in tbo king's oosri k« ■iirroQoded b^ fricndA aiid hclpen and ploadcn^ and amoog them was Banalf tiUnvill*. For a long lime, however, we baer Terjr UtUe of profewional cotinaallori is the temporal oovrta. Thia ia the moiv notiocttble beoauHj Matthew Btfin is (bU of ooBptainta against th« pack of bellowing l^^iete wfaoaa the kti^ easploja and whom he leta slip wbeaerer an epueopai iileKkiB goea againut hia wiahee*. They an not men ^l«d in law; they are ramunite and oanoniaie; many of them bruignem; one of the meet tohmooeof them, if we jwdge them by Mntthow'a rt^puri, ts the renowned fioatieoai*. The only penona who an- mentioned aa learned in EngUab law ai* the king's jiuticeM*. uid they to all appeumnoe have been eeleele^ not out of A body uf adruceiea eeek^ br eaptoyinenl from ihe
■ 8«*ftbanw, p. IM.
■ Qmu. AUMftna. I. IMi •Bototai [AUm 8. Ittaall. twhwtilma, tliriam ■nm, M« ysrillidaMMU Ifclliaai atHoaa (Ai •NDTon. MlMila ■• mocQm, AaeUai hRb piridi) Wmi - lillastlt ■lao Tiilwinanii, B. H. R. iL atS-4.
• Ob n lUrab, tiei. Ofamltl sppMnd ilo^ «iih >»wj al WWltrinw* in thfti jmt ha twi •bvtfl ot ToitaAiin.
• MsL fmr. Cfatna. M«i. iU. Ill: •ftbwJa* «• wflkMOfOM ..oaan narnlto tmllda iwbrmnU— liel'ta'aw-' Atf. Ml •aim |m] ad oaiMi Bownani aiMai tagtrtsiaai aMtrruB mijavlt, e«a*> 'walw taa* vmiiMi
tMtoM Wwn— NeiMaaaa.' IM
i?^
»'l Ml.
't Iff. W^
•SMrtO««.p.ltt.
• Thai, fl. tfOL FMailMU is *Utptm Mtra* *IHiWHMfllhiiiiM'; If. le, Maltoa b • t^ta
geceml public, but from among the king's civi] servants, the clerks of his court and of his chancery and tliose laymen who
I have done good work in subordinate oflSces. However, wheu iq hifi account of the year 1235 Palis tells us how Henry sought to crush the aged Hubert de Burgh with accusations, he reproflents Hubert's faithiiii counsellor Lawrence of St Albans aa having to contend against 'all the advocates of the bench whom we com- (j.1**] monly call countorsL' In 1268 'a counter of the bench" - assaulted a justice of the Jews in WestmiuBter Hall ; his fellow coniitora interceded for him^ The king already seems to have permanentiy retained a number of pei-sons to plead his cauaea for him ■ but whether these men are free to plead for other people when the king's interests are not in question, and whether they aspire to any exclusive right of audience we do not know. But lawyers aeem to have rapidly taken poaaeaaion
■ of the civic courts in London. In 1259 the king -TCas compelled to concede to the citizens that in their hustings and other courts ihej might plead their own causes without lawyers [canxidici), saving pleas of the crown, pleas of land, and pleas of unlawful distraint'. This looks a& If in London there bad b^en an unusually rapid development of a professional caste. By this time the practice of the eccleaiastical courts would serve as an example. The attorney is the temporal equivalent for the canonical proctor, and the ' narrator ' or ' oountor ' is the temporal equivalent for the canonical advocate. In 1237 the legatine constitutions of Cardinal Otho had ordained that no one was to serve as an advocate in an ecclesiastical court, except in certain exceptional cases, until he had taken an oath before his bishop to do his duty and not to pervert justice*. Thus a close body of professional advocates was formed, and this would serve as a model for a similar body of professional ' countors.*
Then in Edward I.'s day we see that the king has retained ]^^!'™ pleaders who are known as his servants or Serjeants at law andattor.
ueys.
' Hat Par. Ghnm. Haj. iii. 619: *Uoet Bex onm onmibos prolooatoribtu banei qnoi nizimtozei Ttilgariter appellunas in oontrariam oiteretar.' Th« I«tin narrator and itg Frenoh eqaivalent contour became teoboioal tormi. If an Bngliah tenn waa in ow, it was perhaps /or«p«aA«r.
■ Madox, Exoheqner, i. 386.
> Liber de AntiqaiB Legibaa, 42-S.
' Mat. Par. Chron. Haj. iii. 489-440; Job. de Athoaa, p. 70.
216
1%€ Age of Bracton,
in.
{atnimUm ad %«iiX Already iu lS7ft it is OMetauy to ihriKli with impriMmnieot 'th* MiieMkt counlor' who U guilty of ooUtutvo or deceitful pfmctkv*. Abo therv acem to bo nboul Iho ooort amty yoong men whu an learning to pleed, and whoM title of 'apprentioee' luggMti that tbej arc the pupil* of tbe Mneuita Wo may infer *>»«• mlw.»Jy h«>fa« Igtf pm^jtionera had aoowred eont Bin'HrB rirt^ "^ nHHi"
In jhat year Kiny Edward directed hia imlinir *" p^-^j^ fa- wery county a wuffident nombcf of attorpeyii «nil ii|)p|mti^ f^^i from amoqy \trt* \^<^ '*>■* ^^^^ ''^TTfUJ ^ fchll miMl Iffrhr***^ >o that kin|^ and people might W well aer>ed. The wwnnliiiB waw mad« thnt g hgndrcd and forty of epch rorn wogM he ^ourii, but the juiticca mif^ht. if thoy ploawd. appoint a larger
By this measun.% which, however, may not hare been ihm fint of ite land, ' boib bnuehei of the prelMMea ' wen pbeed ander the oontntl o( the jontieee, and appamtfy « uwwuwlj wu aecurod fur thoec who had been Lhoe aiqwintcd'. flame twelve jenn eariier the mayor and aldenoen of LoBdeo had be«n oompetUid to lament the ignomnoe and ill maanen of Ike {deadpni awl attnrm!>-« who pnrtiH-d in the civic cuurtn. and td otdain that none should hnbiliially pmctiM thrrp whu had net been duly admitted by the mayw. They added that ou oooalor was to be an attorney, and tfaun flaaotiooed that 'arpanOiaa ti iho two branchea of the profeHDoa' which etill endurea in England : but really, an wc have already ieen, theee two had different rooui : — the attoniey ivpraaenti hie clieDl, in his client'e place, while the oonntor apealu rm bvhalf of a litigant wfao ia pceeent in court aither in panoo or by attowiy. The cJTtc fcthera were farther oompallad lo direatea with wm^ poUBon the pleader who took money with both hand* or reviled hie antagooiiit*. It it from 1S0S that we g«i uur ftmi Tear Book, and wo aee that already the giaal litigatioti of tJM
I
■ SM. WMt L •. m ■Bc4hclpMfliBMl.t.a*.
ipiMiM «ft BM teh ■! iiMlin Uw la W««u Bit W maht Mrtiia that lb* ■MtweHiBUaaiiiiifcilBii
LMe(*A !»•).
CH. vn.]
7%e Age of Bracton.
217
the Utigatiou which is worthy to be reported, is conducted by a small group of men. Lowther. Spigomel, Howard, Hurtpol, King, Huntingdon, Heyham — one of them will be engaged in almost every case. Nor is it only in the king's court and the civic courts that the professional pleader is found. Already in 12+0 the Abbot of Hamsey ordained that none of his tenants waa t-o bring a plcwler into his courts to impede or delay his •eignorial justice\ and in 1S75 we find one William of Bolton pTBctising in partnership nnth other pleaders before the court if-iMj of the fiur of St Ives'. Many details arc still obscure, but in Edward L's day it is that otir legtil profession first begiqajbo take a deJinite ahape. Wp^^ ^ ^ronp nf nminBol nf >t*^'jf!fintfl ancTapprentioeB on the cue hand, and a group of profesaional sttCTTieys on the other, and both of thorn d^"^^ ^h^ir rij/ht to practise firom the king either mediately or immetliately'.
So soon as tiier^ Id k \k^\ profession, prufeasional opinion is Profe«- among the most powerful of the forces that mould the law, and opinioo. we may see it exercising its influence directly as well as in- directly. In Edward L's day it is impossible to uphold a writ which 'all the Serjeants' condemn, and often enough to the medioval law-reporter 'the opinion of the Serjeants ' seems as weighty a» any judgment*.
That the professional pleader of Edward I.'s day had learnt pedioAof law as a science, had attended lectures or read books, we do not know; very probably his education had generally been of a purely empirical kind. Sometimes he was a legist. In 1307 a judge says Ui counsel, ' Passelcy, you are a legist and there is a written law whicli speaks of this matter, Cogi potseaaorem etc.'' A certain knowledge of, and reverence for. the broader maxims of * the written law ' is apparent. ' Volenti non fit iniuria,' 'Helior est conditio possidentis,' 'Bes inter alios acta,' such phnses as these can be produced in court when there is occasion
' Cut. lUau. I 438.
> FIcM in MuoriAl CoorU (Seld«D Soc.). 155. 159. 160.
' Walkr of Hemiogford (cd. Ueorne). ii. 208, telli liow in 1304 tbe Abp. of
Tork WM ixtplM^ed. 'None of his ooanwl nor an; of all tbe pl«adon
(^Mrrmtttrtt) eoold or A^nA uiswor for him. So in his own person. like one of
Iba pM^K ud before all tbe people, be made hia auwer bareheaded t — (or the
I of the wmri did not love him.'
• See e.g. T. B. Sfr-l Edw. I. p. 107.
■ T. B. B»-fi Kdw. L p. 471. Tbe aUoaion is to Cod. 8. 81. U : 'Cogi ab eo. qai expelit, titnlom mae poeHeMtonia dtcere. inoivile eat.'
Rnmenlim
218
Tfif Ap^-ljfi^roctoti.
[bk. l
tar thaa^ TI107 oould be cuilj ftttod ; iIm Deerctek of Popt fionUkoe VIII end with a bouquet of tb«M fthowy prorerW. Wbeo in koj oontuiy from tfao Unrtaenth lo the nitiiliBiHh an Bnglish lawyer indulges in a iMtn maiitn, ho ii geiNnUjr. though of this bo may be profoandly ignorant, quoting fran the Sejrt. Botjre havponlT to look at maooarripu of Bradona
J^mdT '^wv aliffht.
Tmniimbt>ni wh'>
can copjr » of nof ol
(wrrMajr CfI
•Bongh good bomoly stutT abi^ut th« ai
makv utter nonawiae of tho subtlor diMmnioiMi whieh fihaotoa
had borrowed firom Aaa A eKnax w raached when iba
oetto /anuiuM A^roucMadM has beeocne an action aboot tba
fnrailj nf the ladj Heniacunda, or, ainoe ovra bar
outUnduh, tho Udy of Hftrlcaoombe. who probably had
in Dovonahiro*.
In Eotgland that Ronun iuntitutioti, thi? notanaJ BtTtr took d«ep root*. Our kings did nut aanime tho parial pririlf^ of appointing notaiiae. nor did our Uw that deoda or wilhi or other inatnunentii in commoo uae be pnpattd or attcated by prolie«iooal experii. Now and again wban wiDa doraauat waa to bo dmvn up which woidri denaiKl the credence of fonignofi. a papal ootaiy wooid be nnployed. It waa a papal notary who ftamed the auiat magna* fioent record of King Edwanl'a juatiea, the reeotd of Ifaa ask in which the crown of Scotland waa at atake*. But tt it worthy of tamark that, while in our tempoiaJ oomta tba art of ing plaaa had been brought to a high dagna of English eooleaiaatioal courta aeem to have borne tin«tntal oannmrta a bad lapata baoaoH nf tfairir cawluai aad inartiitic ncoidL TUa we learn from an Italian notaty. o»e
1 T.B.M-SXdv.L^t| lOaUv.L^STt >l-t EJ«. L *M.
f Dt Nfallf tfarti, b n*.
• BriUoa iti. Kiobob). i. U.
' riMianliMii ol Olho <1M7>. tUL rar. m. 4ai, bh. 4t AiaiM. fL ffTi *<tmoalam laMlimHB anw la n«M AiwMm mo a( Hmmm. Warfta. «L 17M. val W. ppL Ul-t, «C7. A Uok tf Hawiiiito at Um ihirtMOth aw»wy nMfte Ik
aUk IW uiwUla or oaUrj w* mmfki «• L. 4. K. viL Ml W* imMBbt. b«iiiM. tkai a ■wiatllt load AmU W •• W taUl to todaa «a«na.
■ FMtea. L TM: *!«» Tit gneri J
TUa ioha Arihv af OiM aat
CH. vn,] the Age of Bracton. 219
John of Bologna, who dedicated to Archbishop Peckham a collection of judici&l precedents, deatined^ — so its author hoped — to reform our slovenly insular documents'. In later days there were always some apostolic notariea id England. In the [f^iw] fourteenth centnrjr the testament of a prelate or baron will
I sometimes take tbe form of a notarial instrument. But an acquaintance with the law of the land eufBcient to enable one to draw a charter of feoffment, a lease, a mortgag-e, a wilt^ was in all likelihood a common accomplishment among the clei^, regular and senular. If we cloaely scan the cartulary of any rich religions house we shall probably infer that it had its own collection of eoranion forma. It is quite conceivable that some
tinBtmction iu cooveyaucing was given in the universities. From the second half of the thirteenth century we begin to get books of precedents, and sometimes the formulas of purely temporal transactions will be mixed up with instruments des- tine<i to come before the ecclesiastical eo^rts^ From the Norman Conquest onwards the practice of using written in* strumenti slowly spreads downwards from the kings chancery. The private deeds (cartae) are for the more part vory bviei', clear and business-like inatruments ; they closely reaeinbie those that were executed in northem Franco. The most elaborate docament6 are thoee which proceed from the king's court. If a man wishes to do with land anything that is at all unusual, he does it by means of a fictitious action brought and compro- mised in the king's court. The instrument which records this compromise, this 'final concord' or 'fine,' will be drawn up by the royal clerks, and one copy of it, the so-called ' foot of the fine,' will remain with the court. By this means, before the thirteenth century is out, some complex 'family settle- ments' are being made. Also the Lombard merchants have brought with them precedents for bonds, lengthy, precise and
1 Bcthmum-Hollweg, Civilprosen, ri. 189, gives an soooont of thia book. Tbe aothor Mys to the Axohbiahop: 'Com solempnii Testnt enria et regnam Angliee qnan totnm personis oareat, quae seoondam formam Bomanaa curiae Td idoDeam aliam qoalemoanqne inteUeotom et notitiam habeant eorom quae ud artem pertinent notariae.' From the ignorance of the English acribei •indieibiu obpiot^Dm et partibns incommodum eaepe proTeninnt.* John of P"VY"* Menu to have been employed by Peokham and to have obtained a iMDefiee in Walei : Peekham's Register, i. 4S, 378 ; iii. 1009.
* Ibitlaod. A Conveyanoer in the Thirteenth Centary, L. Q. B. vii. 63; The Court BaroD (Selden Sqp.), pp. 7. 12-14.
ft«>
T7ie Afff cf Bmcton,
[bx. 1.
■tringent fonoa. which th«y compel their Bi^gluh deblun to
IwrvMi* On the whole it w hard far lu to detennina the iletiwi tol which koowledgo of thu l»w bad become the cxcluaTe pnpmtf' of « profemona) rlaaa. Od the ooe hM.nd, there were meoj thinfipi in Brmotim** book which wem bqraad the rmn|if»he« Mun uf ihii laity — some tbiiigi. we eoqpect, that wcfe lo» leaned for the ordinary lawyer — axwl it was fblly admitted that the prodeiit Utigani shmild employ a skilful pIpadiT'. Evea [p-i4 the writer of the Lege* Benrid had obecrvcd that we better ondentaod another peiMn'i oaoee than oar own'. QgLJhp f;n>itp of profewonel lawy«fs whidi had fanned iteelf roond }km
the WK}mni» were few, uy^ ■**"*■ Mtm mwtn ■|n«mlnia iimI attcffpeyi mmT**^ ^>.....jryk _ a great deal of legal bwrini— waa ■till being traiuaoted, a great deal of juetior done, by thaea who were not profeabooal experts Tlie knight, the aelnr* country gt>ntlemaii, would at timua bo employed aa a ju«tioe of aaeiae or of gaol delirery, beeidea making the judgmenta in tt* oonoty eoart. The cellarer of the abbey woold prande in iti manorial court« and be ready tu draw a teue or a will TW freeholdem of thu fthini. beaidea attendinf; the oonmonaJ and tha manorial courts, would have hard work U> do a* jtuvn; often would they be called to Weatmiuicr, and ae yet tha eoparation of matter of taw teum matter of Citct wa« not ao rtnol that a jnnir oonld aflbrd to know nothing of If^al ruleo. In one way and another the oemmcn folk ware ooastantly rveetTinc lenoDM in law ; ^hlT mrt'"! -^ *V'f* lim aHwi \\m\k th^m }^\a tha opurti^ QTen into conrte preeided ever by a Pataii>aU. a Baldgh, a Bracton. T**'* h^H»*y ft^.*^^^^ti«^ ^ ^ii —j^ ^ ^HlttiTOf *** aiM in tH Tart rf the kw prtfaau th<? jor»t fttg h«iriiiy U »ll hia ^Yf TV "^ Tlh'^ *b« l»w %tm^m%
EnglUh law waa already Rpraading beyoBd thv bminde of England, In 1S72 the time had almoai oDoia whan Wataa wonld be imbjugalvd and Edward's grunt the moat conipivhefiaiv* oode that any Eagliiii
A i»a4 trwiMM U ii«w ia Mat. rv. iii. Ul: Wl mmg ^ te k«^
« T. a »-l Uv. : * DrfMM 4f hoe Hftml M D fm4am tm
CH. ni.] The Agre of Bracton.
during the middle ages^ would be promulgated. Meanwhile in l!be marches English and Welsh law had met ; but the struggle was uueqttal. for it waa a struggle between the modem and the archaic. Welsh law had indeed a litemture of itfi own, but had hardly passed that stage which is represented in England by the Xegrfi? //snnci. No doubt there were those who cherished the old tribal customs. Tho men of Urchinfisld. a district within the English county of Hereford, tell the king's justices that tho manalayer may make his peace with the
^MO] kinjimen of the alaia, and they ask that this ancient usage may be observed^ On the other hand, the men of Kerry, which lies within the modem county of Montgomery, petition tliL' king that they may live under English law, because that
, law has suppressed the blood feud and does not punish the
iinni>cent along with the guilty'. The old law of blood feud and wergild, or galamtit as the Welsh call it, will die hard in Wales ; still it is doomed to die, and along with it the tribal pystem whence it springs. Into Ireland Elnglishmen have carried their own law, A Engli*ii smaller England has been created acroaa the Channel, with ifcifcuU. chanct^ry, exchequer, 'benches/ council, sheriffs, coroners, all reproduced upon a diminished scale. Statutes and ordinances and ' the register of original writs' were sent from England into Ireland; the king's English court claimed a supremacy over his Irish tribunals, and multitudinous petitions from Ireland came before the EInglish council at its parliaments'. It is jnmbable however that, even in those parts of Irehmd which were effectually subject to English domination, the native Irish were suffered to live under their old law so long as they would keep the king's peace; but we may see Innocent lY. inter- vening to protect them against what seems to be an iniquitous
1 Note Book, pi. 1474.
* Boysl I«Uen, Henry m., vol. ii. p. S58 : ' Veetnm rogunas r^[Uin dignitatem qnateniu... leges temrom Teetnnmi nbiqne per WoUiam et per jfarghiem nobis oonoedere velitis, et hoc est, qaod innooens non puniatar pro nooente. neo etiam impatetar parentelae alibuias si aUqnis de parentela intexfaoerit aliqoem vel fortiun vel aliqaam seditionem [feoerit] nisi ipai malefaotori.'
' As to the transmiflsioQ of the roister, see Hanr. L. B. iii. 110. For ao eazlj ease in which an Irish jadgment is corrected in England, see Bot. CL p. 549 ; there are Beveral other oases on the rolls of Edward I. For Irish petitions to the English oonneil, see Memoranda de Parliamento, 88 Edw. I. p. 28S. '
222
The Age of Bracton.
[bk. l
ftppIicKiioD of iho iiyvlem of' panooAl UwV Individual Iriali* meD« like the men of the Wdsh Krrrj-, petHioDcd that thtj might be Allowed the beiiefiU of Ki]j{luih law; thay pttJbtJbHf mcaot bj* this that they wished their lives protected hy » Uw which know how to hnng a niAnsUjrcr instead of suiKmng him Ui purchsao peace by war)(ild ur * unc' tine*.
Whether the king of ScfAtand was in any degree sol^eei to lUv. the ktDg of England, was a que^tioo about whirh Rogti^ man and Soot would have dimgrood in the year 1X71 tad about which they will hardly bt< brougfai lo agree eren lunr. Old pFcccdonts of hoDwge and release froa bom^ ven beug b^i tn ■Blind on either side of the border and wore eooo to be bronght into debata But the ntmoet claimed for Uw Bttglisjl king was a feudal ovcrlordship, and English law, as English law. had no powor north of the Tweed. NeTerthelsss, we majT /doubt whether a man who crusatd the river felt Uwl he had ^^J^ C p^mnd from the land of one law to the land of another. In the fifvl place, for some while he would have known hioMelf to be under a law settled and put in writing by s joint oommittee of English and Scottish knights, tbo law uf thu marchM, whi^ decided that whonerer a charge of folony lay between Knglkh* man and Soot there mmit be trial by batUe:— he would ban known himself to be under a true intomatiocMU law* But snppoeo him serred with a writ. Be might notice the name of Henry vhera ha was ■wuiioined to see Akaader. or iha name of tome Seotlbh boigh b the pfau» d Ihe fcmifitf W4ttm9i¥ut0rium; but nothing else io the writ would aaem strange. If the pnipT nnmos be omitted, wu shall hardly tmw tell a Scottish charter of fooflmmt fmn an Bi^jlisb, and the (vw Scottish noords of UUgatioii that have ecane down to ne from the thirteenth oenUiry might have been written bjr Ihe derhs of Robert Bmee, the chief justice of Ki^nd Of vUa wnt on beyond the Forth it is not far us to hMard a wwd. but for long sg« pMt the law that pevraflad between Fonh
pnvlosi of OsaImI Um avfi wSom «f fhfae «alh lonUac s iktA, if aapferMd by sU iMinnTitmrtiiJ kgr ihtnr witBMMi, liM lo sirf «V«sl jortiM li ovteirf la be 4flM
■ Miwuiii4t U PmBiwisIiii. toa<>. I. fjL • keu at Psrilii isi ol teatUU, I iHi
CH, vn.] The Age of Bractm/ 223
and Tweed must have been very like the law that prevailed between Tweed and Humber. And then, if Prankish feudalism in the guise of a Norman army had conquered England, it had almost as effectually, though in more peacefiil guise, conquered whatever of Scotland was worthy of conquest. On tht; whole^ for a long time past the two nations, if two nations we must call; them, had been good friends; the two kingly families had been cloeejy allied. Many a great baron can hardly have known to which nation he belonged. The concentrated might of the English kingship, the imperious chauceiy, the exact and exacting exchequer, were ideals for the Scottish king ; the English boron may well have yearned for franchises and re- galitiea that were denied to him but enjoyed by his Scottish peera The problem of the Regxam Maiestatem, the Scottish version of GUnviU'a book, we must not try to solve; but it seemB clear enough frt^m abundant evidence that, at the out- break of the war of independence, the law of Scotland, or of J^ «outhem Scotland, was closely akin to English ]aw\ That it had bet-n less romanized than English law had been is highly prvbable* no Bracton had set it in order by the method of the Summa AsortU. That it was leas uniform than wbs English Inw is also highly probable; the Scottish kingship whs not so strong aa was the English, and in Scotland there were ethnical differences impeding the progress of a common law. These seem to be the main causes which, when enforced, during the struggle for independence, by a loathing for all that was En^ish, sever the stream of Scottish from that of English legal history. Romanism must come sooner or later ; the later it comes the stronger it will be, for it will have gone half way to meet the medieval facts'. Uniformity, if it can not be evolved
* In Acta of Pkrliamflst of Sootlanct, vol. t, Regiam MaU$taUm is oollated with OluiTilL Tbe present state of the qaestion u to its date may be gathered trcm Neilaon, Trial by Combat, pp. 99-104. Of all the Tariona theories that have been started, that which ascribes this book to Edward I. will seem to an English- man tbe most improbable. It Edward had attempted to foist an English law book on Scotland, that book voald have been foanded on Braeton or Britton and not on the antiquated GlanviU. The English law that is borrowed is distinetiy law of tbe twelfth oeotory.
■ SahrOder. D. B. O. 746. The Boman law that oomes to England is the law of the early * glossators.' The Boman law that wins victories in Scotland and a«Rnaiiy is tbe law of the later ' commentators' (Baldos, Bartolns and so forth) wbifih hM aeeommodated itself to practical needs.
924
The A^ of BracUm.
[ml I.'
ytrom vithin. intuit be unporwd rrom withoul. Hktu in tk» flnd / Bonuui Uw is iwwivvd in SootUod m tnhnAmj Mid wmdmnn
>"| A cotnpuiBon of the Icgml ayatetaM of v&riott* stetM m Uiajr
ImIwii wctd At tome remote point uf time will alw«^ be ft dUBculi
twdc. oreo for one who knnwn tho hUldTy ttf vmch vpante
in the
faii««(
■Jrton. But if wy ^i»"ltl I'^^W »t w^Twtrni Etin year t^>?^^j[.rhnjw rK^ fhr>pir^..r»tfii' 1,1' Kiigljah
!32
•nbfitaiici- WON, to nay the IciiMt. lu tiiiKit-ni uiid i-nUghtofwd •• WM thnt of the lyiitetiui with which it ooald bu pn^Htaliljr cotn- porod. It hod ■oppfOMiBd wtne Archtumru) which might rtiU h» fuutul in Knuico or Rt may mte in Gurmuiy. It knew noUttBf of the worgild mve u a trait of WuUh barbarinn; at the pope'a bidding it bad aboUahed the ow%l: it ^-^-^ rapid[)m^iy
*MfrftTT lim''" But we would ipeak raCbcr i>f it« jora iimli"V itii matter. The great charier, tbe proriuoCM of Miirtoa aad evki UaribonMigh, thu minor ordinaneoi, tboae in 1S7S ooaMilMled what we must heru cull % Urge body of enacted law. And if in ona woae Eo^and ««a oerer to be a 'eoutiy of the wriUeo law.* it had beoome praemineotly the eoontiy of tha written reourd. Eveiy right, eraiy nmedjr muet ba made dafinite hy writing : if it can not find expr—inn tn uom ohinoery CbrmulA, it muei oeaee to extsk Tbeo. afiin* Bqgbeb law in beooming^ ibo law of one oourt. or of a mhII |pv>|^ of intimately connected ooortii, the law vt Waeinunrtar Hall, the kw that in it« full paribattan ia known only to bchm doam men, the kings josdoea Bircfy right, ernrr twpady. ia bring diarppncd and baldened by the rinaelw activity of a oom% which in th" emiiii nf m, j^f^ A,*»iA.« ^^iffM^twU ^ -^„ iiif
Vnifonmty in thus eeoored, and ev«a a oeclain aimi for ausoo parta of our oommoo kw, notably the Uw uf nmt, if wa have rogaid to oontincntal •jstaow. b* eaUad i pri«zigly airople. Ckaely oonnected with iu uniftjrmity ■nnthar diatineliTe trait : — in figgjandtha law far the fraaft
h»tli1«. fhg l^w fnr >n 1^
'"Mlrt h** **'''^''— ^ Ihg '*'*■*— ^^ law. For gonitaiy rnlaa of inbrritanoo are mpidly
CH. vn.] 37te A^e of Bracton. 225
from their native home among the niiiitai-y fees through all the subjajcont ati*ata, and the one ' formal contract ' of Engluih law cau be made only by those who can write or hire ocht.^ to write for them. Certainty also has been attained i Bracton'a handa are far kss free than are tho handa of Philip Befnimanoir or Eike of Repgan ; at every moment he must be thinking of the formulaj^ in the chancery's register. English law is modern in its utiiforniity, its simplicity, ity certainty j it is modeni also in the amount of Rouianism that it has absorbed. In (xennany the theoretical sanctity of Justinian's texts has as yet bora^ little fruit in practice ; in northern
I France the new Roman jurisprudence is still lying ou the surface and hardly beginning to niix with the traditional customs, while in England it has already done a great work, &nd almost all the work that it will ever do. But all these modem excellences are being purchased at a price which may be heavy. The judgea can no longer introduce much that k >.«M] new ; they know nothing of any syatcni but thtiir own ; ttoman Jaw has lost its glamour. All now depends upon those who will wield the legislative power in this country, upon the 'sovereign one ' or the ' s-jvereign many.' A vigilant, an eulighteoed, aa expert legislator may be able to keep this rigid fommlary ByHtrem in hanuony with the ever changing necessitiea of man- kind, introducing new 'forms of action' and (for this will be equally necessary) ruthlessly abolishing all that is obsolete. But unless we are to have this continuous legislative activity — and we can hardly have it without despotism — the omens for the future of English law are not very favourable. It may easily become a commentary, an evasive commentary, on an- tique writs and statutes. It will circumvent by tortuous paths the obstacles that it can not surmount. Archaic institutions which the rationalism of the thirteenth century had almost destroyed, wager of battle, wager of law, will live on until the nineteenth, moribund but mischievous. It may become an occult science, a black art, a labyrinth of which the clue has been lost^
But now, having brought down our general sketch of the growth of English law to the accession of Edward I., ' the English Justinian,' we may turn to an examination of its rules and doctrines as we find them in the age of Glanvill and the age of Bracton.
p. H. I. Ifi
BOOK n.
THE DOCTRINES OF ENGLISH LAW IN THE EARLY MIDDLE
AGES.
18—2
CHAPTER L
TENURE.
i-*"! How best to arrange a body of medieval law for the use of modem readers, is a diSicult qtiestiou. Of the two obvious methods each has its disAd vantages. On the one hand, if we were to adopt the arrangement which would hQ the best for a code or digest of our modern law, though we might possibly succeed in forcing the old rules into new pigeon-holes, we should run a great risk of ignoring distinctions which our ancestors saw, and a yet greater risk of insisting on distinctions which for them had no exiateace. On the other hand, were we to aim at such an arrangement as a medieval lawyer would have adopted, the result would be to hide those matters which interest us behind the intricate mass of procedural rules which interested him. The nature of both these dangers may be explained by a few words.
The arrangement of Bracton's treatise will for a moment seem one that is familiar enough to every lawyer; it is the most famous of all schemes. Following the Institutes, he treats of (1) Persons, (2) Things, (3) Actions. But if we may take the number of folios given to each of these topics as an indication of its importance in his eyes, we find that the relation between them may be expressed by the figures 7 : 91 : 356'. Nor is this all. It is to his 'law of actions' that we must often look for substantive English law. To a high degree in his treatment of ' persons,' to a less, but marked, degree in his treatment of ' things,' he is dependent on Azo and Roman Iaw. It is only as he approaches the law of
' As to the trraDgement of the treatise see Braoton and Azo, p. 14.
Amage- [ii«ut at this bwtk.
Foesible methods of amnge- meat. (1) The medieTal Hcfaeme of law.
230
2cfMiftt^
[bk. n.
1
'aotioiu' that ve begin to know that h» ii ginug lu pcMiboabk {^ BngUiih law and not specnkiive jnni|irodakee. Afl to Qknril]. the wfaule uf hia book u, we may My, detotcd Ui tbe bw t4 •otiana: be plunges at onc« into an account uf the writ of right; and such arrangement ■• tht Lagm Hmnei hftTV, puu jurijidictioD and pn»edar« in the fbroftvot That iihiiwilMiitin nuurk of ancient juruipmdencc. the promtnont place giren to what wti HometimeA apeak of as ' odjectivo law,' tba appormi subordination of rights to reroedicM, is particularly aolioe^r lu our own case, and euduren until modem Umee: and BOtnrallr. for oar commnn law is the law of oourU whirh grmdoallj ar- qoired thmr jiiriarliction by the dorclopmcnt and iutcrpralaUuo of prooeduml funnuloa. Still, though wo ■hall baire u> a^ much about the ' forms of action,' we need not intmduce mice of property law as though they were bat enfaoidiary the law oboQt aesiaee, write uf right and actions of tm^
Hie danger that would be ran were we to Mlow the otiirr of the two connes may be illosCrated by lelBrtDee to Ibot divinon of law into *pubbc' and 'private' whidi wiua ad- nently well imited to be among Lb« fimt oatUnee of any tneli* tutiooal work on modem law. Broetnn knew of the dietinctaeci and oonld notice it oe a matt*:r of flchoUalic teaming; bal he nafcae Uttla oae of itl He could hardly ha«o naad it and y«t dealt fiurly with his mnturiaU. Feudalism, we may aiy* ae a denial of this distinction. Just in so fiv as the ideal ef feudalism is perfeetly realised, all that wo call paUte law fa merged in private law : juriadictioo i* property, office is pro- perty, the kingship itself is property ; the aaroe wutd rfessMsins has to stand now for iiwtmMp and now fnr llo^£d^p~ Again, the thcoiy urged by a modem writer*, thai ' public law' t» bat a deparUnent of the * Inw of penoos,* however inappbeabia to modem ataleo. may eoweliwea be applied with advantage ta the middle egea. Any each ooncrptioa as thai of * Iba
tskt
Mf to ffslMiesi ee>a td *s4. wl Bmtmm^ sfeotsi-.tes vutm prii%»mm ■■« n«o4 ■! wlSUmtrnt jalmiifmMM si ■wJsrio ysctiatt sd iwsyiiWiw.' Oe tlis i 9«Bd Ikst • oafjim U man UU; to haw Jiif Jid ihfts u htm i <hi ineifnw lo EcMs, rwl BnMMt — — lbs fn^nkb n«tt^i to te ekw Ike
btrnv foUfa ami pnm» kfrma^h* tmmi la ■iisiiu's Wala«l sf «« tf evwi. r ST, 104 r>sa*iMi>. t M b; kel ll Is aoi ;
* amuo. JiiiMniiaiiL L a^-n.
cm l] Ttmure. 231
hardly appears on the surface of the law; no line la drawn
■ betwoen the kings public and private capacities, or it ia dravm only to be condemned as treasonable. The kiog^ it is tnie, ia a highly privileged as well as a very wealthy person; still his rights are but privatu rights ampii&ed and intensified. He has greater rights than any other lord ; but it is a matter of degree ■ many lords have some 'regalitiea'; the Earl of Gloucester has many, and the Elarl of Cheater more. Certainly it would be easy for us to exaggerate the approach made in any cimutry, nioro especially in England, to the definite realization of this feudal ideal; but just in so far aa it is realized, 'public law' appears as a mert: appendix to 'real property law* modified in particular case* by a not very ample ' law of persons/
Now albeit we can not adopt either of these two methods to Oar own
1 -.11 I- ■ i^'"'*"-
the neglect of the other and must consider both medieval lawyers and modem readers, we need not work without a plan. In any body of law we are likely to find certain ideas and rules that may be described aa elementary. Their elementarj- cha- racter conaiats in this, that we must master them if we are to make further progress in our study ; if w^e begin elsewhere, wo are Hkely to find that we have begun at the wrong place. Only Bome experience of the particular body of law that is in question will direct us to the proper quarter ; but as regards the law of the feudal time we can hardly do wrong in turning to the law of land tenure as being its most elementary part. We shall begin therefore by speaking of land tenure, but in the first instance we shall have regard to what we may call its public side ; its private side we may for a while postpone, though we must not forget that this distinction between the two sides of property law is one that we make for our own convenience, not one that is imposed upon us by our authoritie& From land tenure we shall pass to consider the law of personal condition. The transition will be easy, for the broadest distinc- tion between classes of men, the distinction between free men and men who are not free, is intricately connected with land tenure, in so much that the same word villenagium is currently used to sio] denote both a personal status and a mode of tenure. Then we shall turn to the law of jurisdiction, for this again we shall find to be intertwined with the land law ; and along with the law of jurisdiction we must examine 'the communities of the land.' Having dealt with these topics we shall, it is hoped, have said
232
icnwt.
[aK.lL.
enoQgh nf pnlitical Ktractnrc ami public oflkir*. for thom xaaXUn whieh ure adequAt^l^ illicaiwd by hist«ri*iw of oar oomtitation we atuUI avoM. Turning tbon to the mora primbt bmnchiw of our Uw. wu )«hall Uikv u our chief nibrica, 'OwActf^ ahipuid PoiMMion.* * dntnkct,' ' Inhcritnnoe* Mid ' Funilj* Iaw/ whilr our two but chnptcra Mrilt b« derotcd, the one to * Crime «nrl Tort,' thit olhtT U> ' ProctHJuiv.' Wc mre w«U itw«re ibu thtt Kirmngvinrtit tiuiy took groiotqae to modorn fytm; hdm, far exunple, it thnwtfl th« law of penom into the mi«Mb of the law of proporty. Our dofeooe mo»t he thai, aAar many experiments, we have planned thin tloiarary m that whirh will deniuid of n« the laaai auoanft of mytUfct aud auticipatiuu, aud thvreliora «nabl« lu to nay bmmI {a Hm feweftt woirln. Wo Nhall aptvk for the more part of the law a* it iitood in tht> period that Vivn brtweon 1154 and 1S71L Thu will not pnrveut ii» fruui making oocaiiooal axcumoiHi into earlier or later tinies when (o do no smdw advwabki, nor ftw looking now and again at foreign oountries; but with tb* ■ge of Qlanrill and the age of Bncton, wa aball bo {irimanly eooeemed. Again, we shid] be primarily ooaoaned with ih« evolution of legal dootrinei, but ahall try to iUutnta by real ttnmptM loiiM of the political and ooaooaio onaee lutA eflbcte of tboM mice that are under oar wimiiMtiiai We have not to write a prmcCioal hand-book of medktil taw. nor. on the other hand, havo we to deeoribe th** whole of Hudi- eval lifts. — Bat an abetmet dieoourao abool method ii tehinoi TOfy profitable. TbenCore, without more ado. w« torn to tke Uw of land tenure and begin with its fundamental dogUL
§ I. Tenure m OtmffoL
Every mtc of Engllnh anil and every pcoprietaiy right therpiu have bcco brought within the oompav of a t formula, which may be ojipwKjJ thoa: — X Uiut teTmit Jhi
de ilomiao Ragt. Tbe king liiumlf bukk land whi^ ie in
eveiyaesee hi«own; noooe eUe has any proprietaiy right id ift;j bat if wp leave out of aocoant thin nival domase. tlwo ^/fmy ■cTv of land ia * held of' the king. Tbe peiaoa whom we ■hjt call it* owDcr, tlie penon who baa the right to ate and abaat the land, to eoltlvate it or leave it nneoltiTaled* to keep att
CH. I. § 1.] Tenure in General. 233
others off it, holds the land of the king either immediately or mediately. In the simplest case he holds it immediately of the king; only the king and he have rights in it. But it well may happen that between him and the king there stand other persons ; Z holds immediately of Y, who holds of X, who holds
of V, who holds of A, who holds of the king. Let us take
one real instance: — ^in Edward I.'s day Roger of St German holds land at Fazton in Huntingdonshire of Robert of Bedford, who holds of Richard of Ilchester, who holds of Alan of Ghartres, who holds of William le Boteler, who holds of Gilbert Neville, who holds of Devorguil Balliol, who holds of the king of Scot- land, who holds of the king of England*. A feudal ladder with so many rungs as this has, is uncommon ; but theoretically there is no limit to the possible number of rungs, and practically, as will be seen hereafter, men have enjoyed a large power, not merely of adding new rungs to the bottom of the ladder, but of inserting new rungs in the middle of it. The person who stands at the lower end of the scale, the person who seems most like an owner of the land, and who has a general right of doing what he pleases with it, is said to hold the land in demesne ; Z tenet terrain in dominico, or in dominico »uo\ We suppose that he holds it of Y; in that case Kis the lord (dominus) of Z, and Z is the tenant (tenens) of Y. But Y again is said to hold the land ; he holds it however not in demesne but in service {tenet ieiTuin illam, non tainen in dominico sed in sei'vitid); and Y again must hold it of someone — let us say of X — whose tenant he will be, who will be his lord, and who also will be said to hold the land in service. Ultimately we shall reach the king; A, or some other person, will hold the land immediately of the king and be his tenant in chief {in capite). Every person j).-2ii] who stands between the king and him who holds in demesne, every mesne lord or mesne, is both lord and tenant, lord as regards those who stand below him, tenant as regards those who stand above*.
' Bot. Hand. ii. 673.
' This statement will require some qualificatiou hereafter when we speak of the unfree tenures.
* In later days the term 'tenure in capite' was BOmetimes used as though it were equivalent to ' tenure in capite of the crown * and even to ' tenure in capite of the crown by knight's service.' In the Baronia Anglicana, Madox has suffi- cit^ntly proved that this nse of the terra was an innovation. See also Hargrave's notes to Co. Lit. 108b. In the thirteenth centurj- the term 'in capite' is
m
Tamtt^
[B«?
•
Before Attempting to tuudyie thu notioa of dspMkdetit aod I derivativfe' Umuns lut uh fint obterva how uniTeraoIly it htm been Applied'. Not only boa evvry wen of Luwi born brought within iu loope, so that the EogUiih Uwyer ean not •dnii erea a barv poiubiUty of lawl buiof( holden of do oot^ bat th* mAt^mme fomiulA bu been mado to cover rBlatMfuldjpB wUck have little iu commoii. An Earl of Cheater, wbo may at tOBM behavu like a •ov(>reign prinoo, holda hi« ooon^ palitiiw of the king; the cottier, who like enough u panoDilfy biMa hia tittle croft of aome meiDC lord, or of the Ui^ Even when of late a new mode of cultivating the eDil haa mada ita appearance and lorda have let land to hmien for tema of yean at substantial money rent«. tbia cmw relalionahip baft been brought within the old fonuiila: the lanea bokk tha land of the leaaor. Even when the tenant baa no rent to pay, oa tempoml aervMe to perfonn. even when the knd baa bees devoted to God and the aainta and i« poneaaed fay a rdigioaa bomn in free alma, atill tha formula baa been CcmumI ai|aal C» to the oocaaion : the religious oommunity bolda the land of iIm donor. We aee at odou thcniforu that the lonnaU mnal bt vecy elastic, tbat the notion of tenure muat be in the h^gbl dap«e an abatraot notion. In Kngland tenant ia no umrk nf a elMB, and we nuy aay the lama of * feodal* tennre.
The term /todutn, which in Aoglo-FVench ia mpniaaiilad by /t, /it, fm and in English by ft€, is one of the words whidi tmmm
■mly a«Ql«slBt to • iBuaidistoiy.* • liiis nadio
ni«]rhs«P'i«isaiitewptl**baMi^flfkfaat laus. Diwteik |t. 1T&.
IS* thM of H«T7 Mlii||«r baUs «tf Mid. XM «< Um ftwl of
aoosMtt that lk«« rfuU boU ol Om tad *Ib ssfito. at
AUaiL ft. BT. 8m siM MsdM, roramlwn No. tt: bat
Tha !■■ was fai ass la Xonsady, vtMt* «• flaJ m nnlrilart aal
pfanua: * Ua flils «M Iwas iw t m fIjU. (mmImst) 4«
s'y s sttkona pfnoaaa «rti« lalt »l laaia ftNaala'i
Onnhy) «. «. So io» a laaaat't 'lanilalla Jialiiii' to Ua
not ibi lord wbo !■ AM abofa hii alter lads, bM Uw 1«4 «b» to i
bin. 8m *.$. PrtMaa of iba Banw, UM, fk. » \ Asa. Owia*. ».
Uat iiMbaya ibto w^» tA tbt tana -lUariard' to art ^mj
MiaMlt UvMcMaKbvabtoiaUM: T. B. «t4 M«. L. p. »
> Wt QM Um pbfU* '^ll Mil 111 Md dMhsilM
■«M)r * ■asM,* IM ibo^ Ki«U* lawraa tev* b^ ««ai 11
lirfon lb«« WM an; ftaiUl tooari iba vMh toaaw, MMkrtf^M la vtlh fc«l»r«, ■•■ MmaUjr omJ »a immrim ft* f«H*Hiaa af Ih4. isftaMtoaatoaot ifwr* limM, boa bMn torran ^ X
<I«.|U
CH. L § 1*] Tenure in General.
in with the Conqueror, and perhaps for a short whiJe it carried about with it a sense of military or noble tt-nure ; but very Boon it was BO widely used as to imply no more than heritaUUty'. This is its settled sense in the thirteenth century. To any of ft tenant that he holde in fee (tenet in/eodo) raeana no more than that hifi rights are inheritable. He does not hold for life, he dijes not hold for a term of years, he doeg not hold hs guardian of an heir, or as one to whom the land has been gaged as security for money; he holda hontably and for his own behoof'. But nothing moi-e is implied as to the teruia of hia botdingt the relation between him and his lord, EUs duties to his lord may be onerous or aominal, noble or humble, military or agricultural, but if hie rights are heritable, th^n he boldsi in fee and the land is feodum siiifvi, at all events if hia tenure has about it no taint of villeinage*. Thus we can not, aa con- tinental writers do, treat feudal law as distinct from the ordinary Jaw of the land, a law to be adminiattired by special courtH, a law which regulates some but not alt of the proprietary rights ftu) that men have in land. We can hardly translate into English the contrast which Germans draw between Lehhrecht and Landr^cht, Our Landrecht is Lehnrecht ; in ^o far an feudalism ia mere property law, England ia of all countries the moat perfectly feudalized. But this truth has another aspect: — our Lehnrecht is Landrecht ; feudal law is not a special law applicable only to one fairly definite set of relationships, or applicable oaly to one class or estate of men; it is just the
> There are two j»Bs&ge> in the Leg. Henr. in vhioh feodum uemi to signify lAtber inherited than heritable rights :~70, S 21, the eldest son is to inherit the father's feodum, while the empUoMM and aequUitiotut the fother may give to whom be will ; here the feodum seems to be the ancestral estate and is opposed to lands acquired by porchase : — 88, 1 15, there seems a contrast drawn between the feodum and the conquiiitum, thongh the passage is not very plain as it stands. See also Maitland, Domesday Book, 152.
' Olanvill, ziii. 3 : 'nt de feodo Tel at de radio.. .ut de feodovel nt de warda.' Ibid. xiii. 24 : land held by a chnroh in free alms is feodum eeeleiitutieum. Where a ohnreb is tenant, there is of oonrse no inheritanoe ; bat the charoh has a perpetual right in ita feodum. The contrast between fee and gage disappears when the gage takes the form of a conditional feoffment,
' Perhaps the tenant in rilleinage was not yet spoken of as holding infeodo. Demandants of cnstomary land, while closely foUowing the forms by which free land was demanded, seem to avoid saying that their ancestors were seised < of fee,' while asserting that they were seised ' of right,' or ' of hereditary right ' ; Manorial Pleas (Seld. Soc.), i. 84, 89, 41. On the other hand, among the soke- men on the ancient demesne we find seisin in fee freely asserted ; Ibid., 128.
836
Tenure.
[bk.
common law of Eogliuid. Th*t eEXttmstve application of the fbndftl formula { Y tentt in /ndo (t« X) which a chameUtiatia of RngUnd, and which perhaps was poaoble onljr to a fino<(— raJ ouuntry, uuMt havi? impaired iu int«iuiivu force'. If it haa to dcocribe the retAtion between the king and the palatiwfl aart, the relation (Hlighl eunuch in Elnglaad) butweea the pinM fuund(!r and the ruUgiouii house that he has endowed, the relatioa bctwnBO the loid of a manor and the tenants who help to ploQgh and reap his fields, the mere 'cash nexua' between a lossnr and a leowe who has taken the land bohtablj at a full money rent, it can not mean vcrjr maoh. But th collection of the inoiit diveiw relatiooshtpa wider one head wilt hare important effects ; the lower * tenures' will be amimilelait lu the higher, the higher to the lower; the 'finid' most Low half its meaning by becoming univenal'. ! AssU^ ■* It ifi clear then that of dependent or of feudal tenuie io general, little can be said : but still »ume analyiis of it ia pofunbli*. Wci mny at liniAt notior that it w^ems to be a oaa|dflX of poniunal rights and of real rights. On the one hand, the leid has rights against his t«aaDi> the t«nanl righto i^ntnat his > lord; the tenant owes soiiices to hw lord, the lord, at knU oormally, owen defonoo and warranty to his tenant. On llw other hand, both lord and tenant have ri^htA in the land, in the tenement, the subject of the tenure*. The tenant in
1
I BnoBMr. O. B. a,. U. 11 : Wo HU* flnmliliislsii d*b Is wi^all. wM dM Utn. «U dU Ksl»foUta« da ■■hHiHih Bsm BiirUr dM Oriiiiilri^slswi '
• U fa MIsrad thai «ki Mns/rW sod^bf sppw ts KiWtaad bM his la Iks 6ti^ aadv Um iaflaaos* d fanias hoolu^ A»j onwr baaaoa immt of mm lav. li b nnriaMfcli tJao t^i /m liiw warn iwirtistly pmJ hi ika hbm Iteft awjav ham «fasB «• tifmk of a lsejw*» or dostot** Im ; ptjmaam da* tm «>vl^ siadasd, St iMM if Uwy an |i«mssmi piriiidb psywn, an >ids) Ae lalgw. tec OTMBph. f»p»i*t/wds. mtaiim. Ths ilj ■idinlwl ^sM^ p—slij Igp lbs Hagltah /tt MMB* tut trngy oo*. bMSBM si lbs lalla /iidiii or /mAni (Uw 4 tD akbll
alinyt tffmt la 1>aatmdaf B«ek) to Istwiswd sawat s peoidi < hM /(•* •■ • vofd kr |mT«*7 ^ «motbI sad artlb la laHliidii. B» Oat Iss. DbL TbM* V* T«)uabU iimifci os M* «afd is FlMb. CW^iii ^ l*MMlsBBa Pnno»k tt. SU.
> Aterstlnmila is am. lO. «Uk oUmv lanaa, aoab m !<■«■» Uw and MmflUM iM MSiUWHd HmU la aM. tlU. u i^ vWibr to dflvlks ibt sokiisl «f s Insfs. Saibsswdbths taawa tons to oA« sffbad la s ^Mrid «Hi la snfeih toad I olbn bssd »iU iaslDd* faooH also soeipciM «artila 'loMfyosMl
CH. I. § 1.]
Tenure in Ge-neral.
237
the tenant on the lowest step i»f the feiidii! scale, obviously has rights ill the land, aniouutiug to a, gcueral, indcHuite light of umng it as he pleases. But his loixi also is conceived as having rights in the land. We have not adequately described hia posi- tion by saying that he has a right tu services from hif> tenant. Of him afi well m of his tenant it may be said that he holds the land, not indeed in demesne but in serWce, that the laud is bis land and his fee, and even that he is seised, that is, poaeessed of the land'. What has haen said of the demesne tenant's immediate; lord, may be said aliw of that lord's lord; he also haa rights in the land and the land is in some sort his. This, when regarded from the standpoint of modern juris- prudence, is perhaps the most remarkable characteristic of feudalism: — several different persons, In somewhat different senses, may be said to have and to hold the same piece of land We have Airther to conceive of the service due from the tenant to his lord as being a burden on the tenement. It is service owed by the tenement. This idea is so deeply engi-ained in the hiw that the tenement is often spoken of as though it were a person who could be bound by obligations and perform duties : hides and virgates must send men to the war, must reap and mow and do suit of court ; ' these two half-hides ought to carry the king's writs whenever they come into the county'.' But the vast liberty that men have enjoyed of creating new tenures and sub-teoures gives us wonderful complications: the obliga- tion of the tenement has to be kept distinct from the obligation of the tenant. The tenement may be burdened with military service, and yet, as between lord and tenant, the lord and not the tenant may be bound to do it: all the same the land itself u burdened with the duty and the lord's overlord may have his remedy against the land.
To take a simple case: — The king has enfeoffed A to hold 0Hig*iii>iiii by military service ; A can now proceed to enfeoff B, (whether 'i,^t ^d be cam do so without the king's leave is a question which we|^^^„.
1 PhruH ahoirtDg thai the lord \a conoeiTed ui boldiDft *-^ ^»riA are quile OoaiBOD i Me e.ft. BmeiOD t. iSS b, *ltom cmn peteaa (otum petal in domiatco, Mdbu nqmodct* potwl et oogaoMere qnod totom noo teoflt io domhiioo. aed fttrtim in dominioo «l partim id Berritio.' So alw tbc lord it tdaed not merel; of Um tansnt'i suriou bol of the land ; Braotoa (. 61, 'nisi ipaevel aDt«ceB80rw ■ot in MJrin* tteftnt d« teneoaeoto illo ia domioioo vel Krvitio' ; f. :f8'j, ' aat«- atut wUiln* m Ae teoio in domituoo vel in unritio.'
> Tatta de Keville, 71. Soe Gierfco, OeaoaaeDaobarureoht, ii. 93.
flMlMrin.
poitpooe) and may . :.ii .ri }i by ^.hik' .|.ii:< .aK.-i B
for oxamplr U to pny ^ a RKiuey rtint. Nuw aa ragaitb tha king, tfa* had u bonieoed with and owea ihv miWinrj Mrriea ; tbo king can onfam tbt aerrioe by dutrmining ihu land for ila perfomuuwo, that w, by Misiog any chattoU that am fiHind oa it, which ehatkeli will (^biibly belong to ^, or (at IcaM in mb* cans) by aei^ng the laud itael£ Bat A and i^ oo the nnnaMoa of tha feofitoent, though they oan not dettny the king'i right nr froe thv land from th<! military aorrioa, may naoe tha 1«m. aa bM««en thttUMlvoi, Kttle the inridante of thtt ienrieo : A may agTM that he will do it, or the baigain nay be that /f i» to do it, besideH paying hiM maoey rvnt to A. The termiDology of Braolon's day and o( yot earlier timca neatly eiytumm the diitnietioii betw<vn the wrrioe which the teniutt owea to hii immediate lord by ruaMu of the bargain which vxiita bciweea them, and the Mrrice whieh wu inenmbent oa the lenantBt whihit it wae in the loidV band. The Ibrmer ia intrin— e iwTie^, to*, the latter fbriniiec •errioo ; the fiinner in the Mnrioe which a created by. which <w it were) ariaca within, the bargain betaeeu the two perwuui, A and B, whose righta and datiee we are diMiumng ; the faUier ariaae ouuide that bargain, ia ' fiw«ig«' fee that baigain ; nothing that the baigainem do will ihift it fnv the land, though, aa between themeelrei, the/ oan dotormine Hi ineidnee. Suppoee that A has undertaken ti» diaUuige thin burden, then if the king atUclu the land in ffm hataJ. B will hare a ranedy agninit A ; there i* a upecial fano of actiiHi by whieh each remedy is eooi^t, the actioa ef mene (tme dt mtdio), reiy common in the thhteenth cmOuwj ; A who ia nunmo (medcM) between the king and B ii hound te ' acgnit' B of thia ' forineee eei i Jue/ to held him hannlam the kingV domandu'. And then, if B enf«o& C, tho will reappear in a more oompUcated «hap*; miao new aerTioe wiU pefhape be created ; Cor ixutance C, who i> a panan, ia to pnj for the eoul of Bb anoerrtoni ; but there are two other eerriDa* incumbunt on the land, the rant that B owee to A, the militaiy ■erviee that A owea to the king, and in one way cr another tbeeeewwiewi meet be ptwided far. Ae betWMB then- •elvei, B and C oan eettlo thia matter by the lortna of their baigain. bat without pcvjudioe to the lights of A, and of tJhe
' TW «tit ol PWMt li aoi to OUuitW. tat ayf ii to twy aortj Bmv. L. a> IH. lU. Ilf. laHMtf7m/»4^Uwto iiwaiaaa
■
Tenure in G&ne)^aL
239
p.»w)
king. It is tio impossibility that Edward ahould hold in vilkinftg^ of Ralph, who holds in fi-ee aotyige of the Prior of Barnwell, who holds in frankalmoiu of Earl Alan, who holds by knight's service of the king'. Just as at the present day one and the sarae acre of land may be leasehold, copyhold and free- hold— for there is no land without a freeholder — bo in the past one and the same acre might be holden by many ditferent tenures. It owed many and manifold services, the incidonce of which, as between ita various lords and tenants, had been settled by complicated bargaining'.
Little more could at this moment be said of tenure in ci»jwi9oa^ general — an abstraction of a very high order. Effort'?, however, tetmrra. had been made to classify the tenures, to bring the? infinite modes of service under a few heads, and before the end of the
> T. B. 83-fi Edw. I, , p, 377.
' Sm Brndtcn'^ explAtiatioD of th>Q term ' forioBM aerrioe,' t B5-7. This term bad Imcb Id coiomon nee even in BtoIiord'H m|^ ; ^w Finea, cd. Hunter, painin ; and may ba roond in Domesday Book, l- 165 h. It aeemg oonatiiDtlj nnd Bs thriTigh it w^re eqiiiTtUaot, or almost ot^uivolant, to 'royaX Fervice,' 'military aerrioe,' * ncatage^/ ioBomUCth that tD bhj ot & man that lie owes fozinBeo Bervioe is almost the same as saTing that his tenttre is military, and therefore implies wardship and marriage ; see Bracton's Note Book, pi. SS, 286, 388, 708, 795. 978, 1076, 1631; Y. B. 30-31 Edw. L, p. 188. Hence the notion pat forward by Hale and supported by Hargrave (Co. Lit 69 b, 74 a, note*) that forineeo serrioe is so called beoaase it is done in foreign parts. Bat this can hardly be tme ; the military tenants wete oonstantly asserting that into foreign parts they were not botind to go. Besides, services which are not military are oeeaaionaUy called 'forinseo,' services doe from socage teoements, e.g. snit of ooort, landgafol, ohnrohaoot; Be^. Malm., ii. 51, 'salvo forinseoo servicio pertinente ad Ubercun sooagiom qnantom ad nnarn virgatam terrae'; Ibid. 62, * salvo forinseoo serrioio pertinente ad onam virgatam terrae de Ubero socagio' ; Ibid. 69, 'et pro ohirobsote [tie] et onmibna aliis servioiis forinBeois.' And fOTinseo serrioe is not necessarily due to the king; Whalley Cioaoher, i. 31: A'* tenant B has enfeoffed C ; A releases to C ' omne forense serrioiom qaod ad me pertinet'; the service due from B to A was forinseo as regards C. Thus the term is a relative one ; what is ' intrinseo ' between A and B is ' forinseo ' as regards C, At the same time, it mast be confessed that this use of the word, which has not been found in France, implies a considerable degree of ab- straction, and it seems possible that as a matter of historic fewt it is doe to the legal development of a more concrete notion. In northern oharters we sometimes read of the king's * atware ' just where we should expect to read of ' forinsee serriee.' Perhaps at first ' outside service' meant service done outside the tenement or outside the manor ; but jurisprudeDce gave a new turn to the ptmae, and there is hardly room for doubt that Bracton's explanation (f. 86) gives DS the law of his time : — ' forinsecom did potest quia sit [eorr. fit] et eapitor foris sive extra servittum quod sit [eorr. fit] domino capltali.' Observe that the tenant's ■ dominos oapitalis ' is his immediate lord.
240
Tenure,
twelfth centnry the great ooUiovs which were to eodnrv tar long ages bad been dr«wn, ihongh neither in QUnvUi. nor ev«B in Bractoo, do we find just that scheme of tonnrea whkk beoame final and claaaicaL In partiouUr, * foe farm' and * bar* pigfi* tlii«at«n to he ciMirdiiiatt? with, nut mbocdinaU U^ * fres Hoage* ; ' tcnore by baruny ' ib upokeo uf aa loiDeUiiiig diflerMit from 'tenure hj knight's aenrioe*; and in the oorth thun an sneh teouree aa * tbfltgnago * and 'drengage' whkb are pHqg the lawjen a great deal of troablu. Slilt, snbfect to aoma explaaatioiw whidt can be given hi.>rcafter. we may my thai ia Bnicton'ii day teeuree are claanficd thnit: — they an> cither free or not free; the free tanurea an (1) fraakalnwan, (2) militoiy aertrice. (3) eeijeanty, (4) free aoeaga. In thia unk-r epeak of themV
I 2. Fmnkalmoin.
At the beginning of the thirtcvnth ceatuiy on ever-i qonntity of land wu held by cooleaiaattoiv regular and in right of thfir churcheA by a temire oomnao^ known aa frankalmuiu, free alma, tibara Wemowao. Tbe aerriea iap&ad hf tbia tenure waa in tbe firat plaoa apihtoal, aa offomd to aenrioe. and in the eeoond pUoe it was an indainile Such at least was the ductnnci of hiter days*. We may take (^ tbe aeoood charaoteristio finL At all ercnta in Uttf daye\ if land waa giren to a cburokman and tlMtre waa a stipBlatistt for aona dafinito Mrvioe albdt of a spiritiial kind, (for axampla a Btipnintion that the donee ohonld aiag a nuM tmce a j«ar ahouJd distribute a certain onm of moncQr anw^ the poorX iIm taanre tboa croated waa called, not franfcalmob. bat tanore hf divine aenrioe ; tbe tenant might perhaps be eonpelled toeweai faalty to bia lord, and the peHbrmanoo of tiM eerrioa augbl faa •noted by distren or by action in tbe king'a ooarts*. On tba other hand, if the tenant held in frankalmoio. that i% if iIm
1 ni !!■■■>■ la OliBviO mm Ifniteii la tbb Mahal b Ifti la. c «» wlMnvt tmiM 'hanaf,"kal|M^MniM,' 'tmima^: 'rmiii'j «lM«kae * bufii* * asA * fiMikilwriB * •pf" i ' Aaahnsm*ai ' «iU oIbi 4mmm4 sto^ Itn. bat at a Ww ■![«• of Mr w«rtL
> Bet ia U B4«. ]. (Ftta. AW. Cmmtnftr * amtW, llfl|ft b «U (^
* Bw IW win PiwiUrf* liiif I, %m- "*•*• o*H- MT k —.
i
CH. 1. § 2.]
Fi-ankalmoin.
241
terms of the gift (as was often the case) said nothing of service or merely stipulated in a general way for the donee's prayers, then uo fealty was due : and only by ecclesiastical censures could the tenant be compelled to perform those good offices for the donor's soul that he had impliedly or expressly uudertaken. Perhaps this difitioction was admitted during the later years of the period with which we arc now dealing ; but we shall hereafter nee that in this r^on of law there was a severe struggle between the temporal and the ecclesiastical courts, and very possibly an attempt on the part of the former to enforce any kind of service that could be called spiritual would have been resented The que,stion is of no great importance, becauw stipulations for deHnitc spiritual services were rare when compared with gifts in fraukalmoin'.
Here, as in France, the word elemosina became a technical Mwniins
of ' alms.
word, but it was not such originally. At tiret it would express rather the motive of the gift than a mode of tenure that the gift creates. And so in Domesday Book it is used in various senses and contexts. In some cases a gift has been made by Uie king in elemosina, but the donee is to all appearance a lajrman ; in one case he is blind, in another maimed ; he holds by way of charity, and porhapci his tenure is precarious. To hold land * in charity' might well mt-an to hold during the giver's pleasure, and it may be for this reason that the charters of a later day are careful to state that the gift has been mode, not merely in alms, but ' in perpetual alms^.' Then, again, in some
' A Aw itutuiew of inch dvCnito •piritBftl wrvuwi may be found already in ZkMaaala/, t.g. ii. 1S3, 133 b, a t4?nHnt lia» to «ing three maases. OifU for the toattilcnaitae of lampi before particular altars and tbe lUce are not unoommon, and oftvn tktf expressly say that the land u fraQkalmom, e.g. Bog. St Ottmnnd i. SM tUSO— 5), a gift of land to tl)« chnrcli of Saram in pure and perpetual afane to fiitd m tmpet to bam before ili« relica on festivals. BometitoeH it woold have bMO diffionlt to draw the line betweeo * aertain ' and * anc«rtaia ' wrvioea, H when land wat givm llial iu rvota toigfal b« expended ' tarn in repamoda Melaiia qnam in maiotibna neoeBiArib ecdoBM.' Reg. 8i Oimund, i. SoO.
■ V.B.i. 388: 'In W. lenei (loidam eeoas noam bovatatii lu elctnosiua d« rcg*.' QmiI- it. 46<J: 'Tnnail GdhliuK mancun in e1«niotunad« rcffe Edwardo.' la Donetahire. uodc<r tlio heading ■ Terru Taioorucn Ue^it* (i. B4). we find 'Bane lensm d«xlit Itcgina Dodoui ia oloniouna.' In Deroniihife, under the fik»bea£nft (IIB), we find ' Alonard Mert tenet dim. Tirg....Uegtna dedit ei in In Oerlfordshire (137 b) we read bow a tDonor wa* held by two thmna, OCM of whom waa the man of King Edwenl, the other woe the man of r; Ibij ooiold not sell ' i|iiia ecmper incoeruot in eleinosina.' This would 10 mean Uiat they held pieeariooely. Bee the onriooe entry, ii. fi b, which
16
842
Tenure.
[bk. n
Bfttitiml
pmrtu of the country it ia freqneotly noted that the puuh pfUBft , bM « few mexm hi tUmoeina ; in one omb we Ittam Uut feh* Dcighboun g»ve the ohonh thirty aores in alnu*. Tkav «■«, bowerer, oth«r ouen in which tho tcinn Beesu to banr A aor* ledmical wnte : aumu ivligiouii booM, Knglith or Kn*»rh, boUi ft oouflidcrAble qoantity of land in aim*; w« oaa hardly doabt that it onjoys a oertiuit immunity from tha ordinary tmrtnnr inenmbanl un laiidholden in general, iacluding amo«ig ueb landholdflr* thu lam favoured ohutchc*'. And so agun. in tba eariy oharteiB the word Mcma to be gradiuUly beooning a wofd of art ; MsnetinMa we min it when we ebould ezpeoi to find and inataad get lome other phraao capable oi exprwring complete freedom from aecular burdeu«'. Id the twelfth tary, the century of new mooastic ocdera, of UtuUi eodawmenta, i^ of aooleaiavtical law, the gift in froe, pore, and parpeUial alaaa bas a well-known meaning*.
Thu uritiun that the tenant in frankaJmoin boldi ht> land by ft Nnrioo done to bia loid foema to grow man rtiflnilft a onnna of time an the general thaocy of tenure banlaoa and Ibe church fiub in it* endeavoar to ftaaert a jiuiadietion aver di»- pnteft rdfttaog to land that bai been given to Ood. Tbe lenvw
vera I
dswH
Mb bow HmoU piT« a hida to a ovtabi prkrt of hk, *■« tfttt UhwH [«w] vd ia riiaiflilM'i iMwInrfy Um efaitiif tbtf priMi** uean vm Am m fiiaiicBi.
1 D.B.iL U\; iLl«b:tfaapaiUakanhboU>dxtr UhwKMlm iiliiilwmiiw,' Bw dw Mrwy at ■nJInlfc. wlww fnnallr baUi loaw MiiB *<if bM laad* <■ HloMdM.
* D.8.i.Ub:'0bffaie«lwilAbbaltada la riiiirfna ■■ drfiodit |«i> li. U41i....1d At8atad«0e«itoiadMM«it»sibUM.' tbtd. L M: ' IMMI ^ B«i» W»lUua ia dMaorisa.' IbiA. i. IMbc ■^ 6m ntm iu« U^a la il—ftdna bI da tm» K.
tepwtik
• Thai adMB Hany L oa^ glBs to tha Ibk^ a( tbe bIm of tfaa «li akairi^* «> aaw to frt Ite tim to a aHtbOr* ■HM* fram tbat wfalefa tMOBBa anal ; ha aajr wU Mas IbM 1^ to^ to I to Iboaa itoga Mcba of Iba abb^y «WA talnng to Hh Hito. Abi^M- ft. «. M.
* la aonpantiv^r I>1> * to «• var HOI iai |ii iii «W M« aM to
boU to taabateato bal an not beUlag ia ricbi ol aaf tkmtk. ttea to Ite WbaOQ' Ooaabs. L li; Wflltoa tba alarii •! E«*toi «!«• te4 to M toatter Joba, bb biira m4 aa^aa. to beU ia pQM aai rwyatoal alM af Iba dMMT ai^ hb bataa^ Mttebw yvriy • raaai «f ISMM to <M aal *a abaMk il WIIIbei*B bBH* BAjr bava ba« taaketaMiB. boi aaaaaAag to Jaba** aaaU aat ba.
CR. I. 5 2.1 Pmnhilmoin.
thus becoaies one amoD^ many tenures, and must conform to the general rule that tenure implies sorvice. Still this notion ■was very old^ In charters of the twelfth century it is common to find the goad of the donor's soul and the soula of bis kina- folk, or of his lord, or of the king, mentioned as the motive for the gift: the land is bestowed proanima viea.pro salute anirnae mefie. Sometimes the prayers of the doneea are diatimctly re- quired, and occasiooally they are definitely treated ns services done in return for the land-i thus, for ejtample, the donor ohliges himself to warrant the gift ' in consideration of the said service of prayers'." Not unfrequently, especially in the older charters, ^.SfQ the donor along with the land gives hia liody for hurial* ; soilte- times he stipulates that, should he ever retire from the world, he shall be admitted to the favoured monastery; sometimes he binds hiruaelf to choose no other place of retirement; often it is mid that the donees receive him into all the benefits of their prayers*.
We have apoken as though gifts in frankalmoin were made ^'JJ^'J, to men ; but, according to the usual tcnour of their terms, they Uie niaiM. were madu to God. As Bracton says, they wore made prima et prindptdiier to God, and only sectmdano to the canons or monks or pareonel A gift, for example, to Ramsey Abbey would take the fonn of a gift ' to God and St Benet of Ramsey
> Already Bede, Hist. Eool. iii. 24, tells how Oawy gare land to the ohorob in order that prajen might be offered for the peaoe of his folk. The land, instead of providing tor a militia terrettri; is devoted to a militia eatUttii.
* Cart. Glono. f. 197: 'bobendam in Uberam elflmoeiiiam...Bine aUqao retinemento ad opiu meom vel aliqaomm heredam meonua nlai tantiinunodo orationet spiritnalee perpetoae.' Ibid. i. 199, 289, 836, ii. 10. Saoh phrases are common in the Whall^ Conoher Book.
■ Cart.01ono. i.8OT: 'No8Tero...praediotam terram...pflr praediotom aerri- eiom orationnm warantizabimna.' The term ' oonsiderBtioD' is of coarse rather too teehnical, bat still the prayers seem regarded as having a certain joristio ▼ftloe.
* Litigations over the right to boiy benefactors may be foond, e.g. Begister of St Thontas, Dablin, p. 849, between the oaoons of St Thomas and the monks of Beotive aboat the body of Hogh de Lacy; aUo straggles for the bodies of dying men, e.g. between the monks of Abingdon and the canons of St Frideswide, Hist. AUngd. ii. 176. See also a (uiarter of John, de Laoy in the Whall^y CoodMr, i. 88 : ' Know ye that I have given and granted to the abbot and monks of StAolaw after my death myself and my body to be boried.'
■ For an elaborate agreement about masses and other sptritoal benefits, see Kawminster Oartolaiy, p. 120.
* Braeton, f. 12.
16—2
4
S44
Temtr0.
[1
n»'
Mb Ion0>
aad the Abbot Wallor and the monliB of St BeDat«' or aunplj ' to Qod and tbc church of St ficnot of HuoMy/ ur jr«l mura hrieBy * to Qod and St Benr-t'.' Tho bcl thai the load wm givoci to God wofl mode iuaQir««i hy approprioto ***rp^>^ tim. Oftco tho doDor laid the charter of (boflneot, or aoin* kniib or oUmt symbol of poMMBoa upon thm altar of ihm church'. CUuoM doooaooing cxoommaaicatioD and daniTwrinn i^puiut all who jihould diKtnrb Lho duuoe's povoHoao did Dot go out of uw at thu Noruian CuDquMt, but may bo feand ia charten of the twelfth ocntury*. nor was it uoeommun for a raUgioM bouae to obcain a papal bull conHnning f^fU alm^ mftdo Hid Uwreaflcr to be made, aod. whatever mjj^ht bo thm hgal «0bot of such iiutruroento, the mom! Uhd most h*v« been gxoat*. We are not eoiiUed lo tnui ihmt phrana whid I ■eom (o make Qod a landowner m of do lofal tdIual BrDOlott more than oooo ftniods aixDmenta upoo Ibam', aod thay ■ungu4 that land f^vim in fnuikalmoin ia outahJe tbe apberD of merriy hiuiuui justice.
In later days Um featofo of tcnun in fhnilmlmoin mhiA attracU the nutice of lawycni is a merely oegativa leaton^ namely, ibo abeenoe of any acrvioe that can be eiUamad by thm weoUr oourta. fiat eone dJitinctfona most ba dnwa. A* Itinf; might give land to a raligioaa boofo * is fiva. pare» lad pexpeMal alma,' and io that otae not oofy woold na aoealv awiea ba dna from the donae to tbe donor, bot Um bad ia 1km donae • hand woold owe no aocular iwtTica at all Bal U<iwa in ftnokaloioui ii by no meana neoouarily a teooiv in chief af tba erovo ; indeed tba qttaotity of land held in chief of iba Grown by frankalmoio waa never Tecy Urgcu It will be aa<lar- Htoofl that nn eodosaatkal ponon mi^ well hold laadiw Md bold them in rigbt of Ue eboreh, by other lenurea IIm aaeiaA oadowmente of the Uahop^ ■eea and of the givatvr and older abbeys wen held by kui^*a avrioa ; tbo faiebop^ iha afchat, bold a barony. Beekia thi^ w« aoaaUnily find f«l%ioai hooaae
< Oml
Lua,
SM.
f#.(tel(HMM.LlM.aaS| H.T4.M^«T.
^tmt^^VM.
Llii WhMNr CWtakiy. t ao»; W^Ov'
L17.1U.
«■«•
Ban ol lias. BM n.1
mi
U lliO,
lUi
1 of 1146. UM. AUi^ U. in. f. ».Mk.
CH- r. § 2. J Frankalmoin. 245
I taking lands in Mcage or in fee farm at renta and at substantial rents, and though a ^ft in fTankalinoin might proceed from the king, it often proceeded from a mesue loi'd. In this case the mere gift c«uld Dot rcmder tho land free from all secular aer- vice; in the donor's hand it was burdiened with ailch service, and &o burdened it passed into the hands of the donee'. If the donee wished to get rid of the service altog"ether, he had to go to the donor's superior lords and ultimately to the king for charter of confirmation and release. But, as between them- selves, the donor and donee might arrange the incidence of this ' forinaec service' as pleased them best. The words * in free, pure, and perpetual alms' aeems to have implied that the tenant was to owe no secular service to his lord ; but they did not necessa- l3MJ riljr imply that, as between lotd and tenant, the lord waa to do the forinsec service. And so we find the matter settled in vaiioup ways by various chartei^ of donation ; — sometimes it is stipulat«d that the tenant is to do the forinsec service', some- times^ the lord burdens himself with this', often nothing is aaid, and apparently in sach case the service falls on the lord.
Another rule of interpretation appear^, though somewhat ru" pims. dimly. In accordance with later books, we have spoken as though a g^ft in fmnknlmoin, in free alms, always implied that no secular service was due from the donee to the donor. But the words generally used in such gifts were ' free, pure, and perpetual alms/ and in Bracton's day much might turn on the use of the word ' pure*.' Seemingly there was no contradiction between a gift in ' hee and perpetual alms ' and the reservation of a temporal service, and many instances may be found of such gifts accompanied by such reservations. This will give us cause to believe that the exemption from secular service had not been conceived as the core of tenure in frankalmoin ; and if we find, as well we may, that a donor sometimes stipulates for
> Bneton, f. 37 b. Cf. Bomma, p. 99.
' FiDM, fld. Hooter, L 300 (8 John) : 'Ala dedit et oonoeasit in pnnm et per- p«iaun elemosinam Deo et eoolesiae S. Harie de B...totam partem 8aani...iU qnod praedictns prior et Baooessorei ani facient inde forinseoom serrieiDni.' Cart. GUnio. i. 167: gift in frankalmoin, 'salvo tamen regali Mrrtoio.' Ibid. 187: gift in frankalmoin aaving the landgafot dne to the king. Ibid. 389 : gift in b^e, pare and perpetual alma snbjeot to a rent of pepper and to royal -vioa.
* Cart, aiono. ii. 17, SO, 98.
« Braeton. f. 27 b: Note Book, pi. 31.
246
Tenure.
[bk. n?
I
■ecnkr NrHoe, tlioagfa be nakm his gUi not only in frM hot BTfln in pare alnut, our belief will be irtxoagtheiMd*, i]lftm§kam The key tu ihu prolili'tn in given by Lbo Cumtttul
dareodon (I1G4). KreiHltmi frum tirciiliu- jurisdietko than frMdcin from teoulmr Mrvioe has bi!«n the fuotu of frmnkal- moin. * If/ Mys tho funoos doeomeot, * « dupate iImU tim between a cleric and a laynuui. or between a layman and a dcric, copoeining any tenemeot which the clerk aawrte to be tlwmt*- tina and the Inynmn amL'rtM to be lay fee, it shall bedetarauDed by a reooguiliun uf iwelvu Uwful men and the judgment of Um chief justiciar whether (u/rum) the tenement belonga lo tlwma I»~ tina or belong to lay fee. And if it be ffmud to belong to Wmoniia, then the plea ahall go forward in the iinrlraiarttml oonrt : but if it be lay fee, then iu the kin^'a ooort. or. in cae* butfa litigante claim to hold of the aame lord, then in the lonl'a court. And in oonaequenoe of aoeh a reoognitiiio, the pvaon who w maaed ia not to loee hie aetatn until ii haa been deniipMd by the plea*.' Lot na ofaaerre bow large a oaooamm to tiM church tho groat Henry in compelled to make, even beftm thm murder of Becket has put him lu the wrong. Tbia ia all tbnl thoae onlM Ugm, of which ho lalki ao fni|oaitly, will prm him, Jind lie cUimN no mor«. The ole«gy have ■tebliwbwl thte principle: — All litigation eonceming land held in alnwia belong! of right to the eodwiaatieal oowtn All that Ibe kiag inaurta on ia this : that, if there t« dtMpnCe whether the land bn almoin or no. thia preliminary qucetion mual be deoiAad bgp an iMtJM under the eye of hia juaticiar. Thoa ifaa Utrum ie eatabUahod It ia a pfilimiaMy prwwa; it will •vtt aanra to give tha datmani a poaaaaiioa ad imttvim ; %km poweaiBr ia to rcouun pn— «rt ; ii deeidei not tha titla Id land, but the oompetenoo of oourta. Hera tbao «• ftod Um ewiiuM of almom aa undenUmd in the middle of the iwiHUi oentmy : — the land ii aobjeet to no jmiadiotioa aa?« tluMof tiM
> BimaU0uft.^»lglftfe9Bfa*^ail^rf
kbai U ft nai of «0 ihlUlBfii. Pa7>U» la Mm mH tM, M». ffiiMleHii Out V. IB: fiA If fttayla Ampm^ aoJpKpilaal ■!■■ el « kelit that b Um** caaa Ibv Mntew aart W 4mh^
OlMnMd. ■. 9, la U •a Maoau of HrigaHne la
Uka aa Umis* Vuim
BMiWvipi lU,
.*> nifn la vUi*
CH. T. 5 2.T Frankalmohi. 247
1^
tribiiDals of the church. Evea to maintain his royal right to decide the prehrainary question of competence was no easy matter for Henry. Alexander III. freely issued rescripts which ordered his delegates to decide as between clerk and layman the title to English land, or at least the posaeiaory right in English lands: he went further, he bade his delegates award pOBsession even in a dispute between layman and layman, though afterwards he apologized for so doing. The avitae leges, therefore, were far from concetling all ihnt the clergy, all that the pope demanded'.
They conceded, however, more than the church could per- TUe Asriie mnnently keep. If as regards criminous clerks the Constitutions of Garendon are the high-water-mark of the claims of secular justice, as regards the title to lands they are the I'UW-water- mm'k. In Normandy the procedure instituted by Henry, the Brwe de Feodo et Elemosina, which was the counterpart, and |>erhaps the model, of our own Assisa Utrum. .seems to have maintained its preliminary character long after Henry's aon had forfeited the duchy : that is to aay, there were caaea in which it was a mere prelude to litigation in the spiritual forum'. In England it gradually and silently changed its whole nature; the Aasi^a Ut-mm or action Juris Utrnm' became an ordinary proprietary action in the king's court, an action enabling the rectors of parochial churches to claim and obtain the lands of
' See the remarkable aeriea of papal reaoripte in the BieTstilx Cartnla:;, 189-197 ; we also c. 7, X. 4, 17, where the pope admits that he has gone too lu in ordering his delegates to give possession in a dispate between laymen, whieh came into the eooleeiastical courts in oonseqaence of a question having been raised about bastardy. See also in the Malmesbmy Begister, ii. 7, proceedings under letters of Innocent lU. for the recover; from a layman of land improvidently alienated by an abbot. In the Oesta Abbatam, i. 159 — 162, there is a detailed aoooant of litigation which took place early in Henry IL's reign between the Abbot of St Alhan's and a layman teaching the title to a wood; the abbot procured letters from the pope appointing jndgee delegate.
1 Somma, p. 295; Ancienne contome, p. 388; Brnnner, Entstehong der Schworgeiiehte, 824-6 ; Brnnner, Pol. Bd. Quarterly, xi. 588. Apparently, the Norman assize bad from the first served as a petitory action ; bat if the reoc%< nitors coald give no verdict, then the cause went to the eocleiiastical court.
* The term Jurii Utrum seems due to a mistake in the expansion of the compendium Jur*; it should be Jurata Vtrum, in French Jur€ Utrum ; see e.g. Y. B. 14-lS Edw. III. (ed. Pike), p. 47; and see Braoton. f. 287, where the t*idiniBal distinction between an Am$a Utrum and a Jurata Utrum is ex- plained.
^
248
Tenure.
rsK.
tbeir cburcbea : it becvne 'the panoa's writ of rigbt'.* B»- fcmen the tinx* of GUnvill and the time of Bncioo this gml duuge WM effected and the MdeitMlioal lribuii«U mUhnd « ■even defeat*.
The fonnal side of this procan ■■mm to have covuutod in a giadoal deoial of the tmdn Utrum to the minority of Ifca teoants in fmnkalmoin, a denial which was justified hj ifaa ■tetemaot that thej had other reroedim for the iwcmKiy their lands. If n bishop or an abbot thought hiniM>lf entt to lands which wum withfaoldeu fruiu him. he might ordinary remcdiett compoteol to laymen, ho might ban to a writ of right But one nlatw of tenants in frankalmain waa debarrod fipom this remedy, namely, tb« nctora of parkb diorcheB. Bractoo explains tbe matter thtis: — When land is pven to a religious house, though it is in the fint place gtran to God and the churrh. it it gtvon in tha aoooud place ta th* abbot and moulut and tbatr aocoeaion. or to the doaa and caooiis and ihuir succeeaon \ so aim Land may be girvn to a buhop and hia auocawoia If than a biahop or an abbot baa oeoattoo to aoe fcr tba land, he can plead that ooo of his pta eaaaoTs waa teiaed of it. jtut aa a ky elatmaut might ndy tte aittin of bii aneeator. But with the |ariab panoo it is •o; wa do not make gifts to a panton and hb siioeevai make them to the oburdi. t.g. ' to Uod and the ehtttch Mary of Dale'.' True, that if the paiaoB ia ^^eelad from ■ion* he may have an aasiae of oovri diweiiin, for be hna bci-'U seiMx] of a free lenomeat; bat i oppoaed to poaeiaory) action he can mrt bring. He aaa 1 no writ of right, for tbe land has not bean givaa U> a pa and his suoccMfon, it haa beta given to Iba abnrch; be
> BrittDo. U. flOT.
■ Aeeoidlai to <asa*fll (ifi. tt^ xiit U. M) ilii mail ITIitiMn w* m» pi*Ht 10 4mU* SB Mtton far Isad bvtwva tvc cteki sr IstviH ^ak amt Isjrmsa ia flswttis ymaoa lo ponwilaii ba«lflfi mho kofeb la bm sim^ •■ Isto SB llOt ss Mrisa Vtrum te bno^ hy as* ■intnh Ww« >p*m «H«hs. mnd, oo lU Mfvmtim t^** tha Isad U itaolB. Iks tsd^aal is ttei iW »m*b 4a CD to flsort CMMisa hA tafktol i^i elhv Um* i PWilL attosi. p. M (O«oa.|.
■ Thl* rMtnrlc awnu Hktlj wiO wyyitoj hf Ihs fatmim ol wtmmftmam* to &nrtan'«tim>] Uim r.y. » da««r cftw Isnl 'to Oolsal M Msqr aaj A C^ ■ad Ifes ifcaiih tt Badiaab.' mA saattaato to wsnau aha b«l 'toOad ^ tts abea* sf IniMali; mft^ aiifch^ «f du panoa; Wtel^ L IM.
CH. I. § 2.] Frankalmoin. 249
not therefore plead that his predecessor was seised and that on his predecessor's death the right of ownership psissed to him ; thus the assize Utrum is hia only remedy of a proprietary kind'.
In another context it might be interesting to consider the '^'jg***"^ meaning of this curious argument ; it belongs to the nascent land. law about ' corporations aggregate ' and ' corporations sole.' The members of a religious house can already be regarded as constituting an artificial person ; the bishop also is regarded as bearing the persona of his predecessors; the vast temporal possessions of the bishops must have necessitated the formation of some such idea at an early time. But to the parish parson that idea has not yet been applied. The theory is that the tas] parish church itself is the landowner and that each successive parson {persona ecclesiae) is the guardian and fleeting represen- tative of this invisible and immortal being^. It has been difficult to find a 'subject' who will bear the ownership of the lands appropriated to parish churches, for according to a view which is but slowly being discarded by the laity, the land- owner who builds a church owns that church and any land that he may have devoted to the use of its parson'. However, our present point must be that legal argument takes this form — (1) Xo one can use the assize Utrum who hfis the ordinary pro- prietarj' remedies for the recovery of land ; (2) All or almost all the tenants in frankalmoin, except the rectors of parish churches, have these ordinary remedies ; (3) The assize Utrum is essenti- ally the parson's remedy ; it is singulare benefidum, introduced in favour of pareons*. This argument would naturally involve a denial that the assize could be brought by the layman against the parson. According to the clear words of the Constitutions uf Clarendon, it was a procedure that was to be employed as
1 Bracton, f. 286 b, 287. This may have been the reasoDiog which caused a denial of the assize to the parson when that parson was a monastery, a denial which an ordinance of 1234 overruled; Note Book, pi. 1117.
^ Bracton, f, 287 b. The parson has not only the assize of novel disseisin, but he may have a writ of entry founded on the seisin of his predecessor. This bc-ing so, the refuRal to allow him a writ of right is already somewhat anomalous. But the writs of entry are new, and the law of the twelfth century (completely i^ored by Bracton) was that the ecclesiastical coart was the tribunal competent to decide on the title to land held in frankalmoin.
^ Stutz, Geachichte des kirchlichen Benefizialwesens ; Stutz, Die Eigeukirche.
* Bracton, f. 286 b.
250
IbntiTB;
[BK.n?
M
tnak
ml miiui In Uw
Well when thi; claimant wu « UyioAo «• vhvn hit wu » cletk. Rut toon the doctrine of the ooiirts bcg»n to fluctuatu. Ujtftin FaUMhuIl at one tituff allowed the laymab ifaia airlioa ; ihmtk hm changed his (ipiaion. bccaose the laynuio bad otbcr moadiw; BnictoD was for rvtracing thia Hlop. becaoao trial by baitlfl and the inniblaw»a« gtand amiaa tnigfat than bo avokkd*. On* curiotM relio of tb« original oManiag of ihk writ tvmimtd until 1S85, when the Sucond SCatut« of WMUniiwter ipve aa actiun Lu decide whuthor a pipoe of laud wan lh« tUmomma of one or of another cbun:h'. Th« mmttt had origiaalljr boon a ineiuvt of deriding diaputa* betwavD olarka and lajmea, or ntibur v( ticuiUng auch cli^puLeii to the cocnpetent onortK tai»- paral or spiritual, and the CouBtitalioiu of Clanndon nrmtain a plain adrniwion that if both partiaa agro* that th« had u tUmonna, anjr diapulo betwevu them i« no oooooni of the lay conrta, iiiK "f We have been apeaking of the formal aide of a legal rhaiifa, but muftt UDl allow this to conceal the grave inipurtaiice uf ihn inattcm that were at etake. The argument that nooe bat [lartichial reotma Have need of the Utnnm^ and the onoveniflD of > the Ctnan from a prehniinary procedure eettling the cnwpemnpQ of courtN, into a prupri«Ui7 actioa deciding, and **— ■**'*n fiimlly. a <|Ui:)ition uf title to land, involve the ■■airtiiw ihnt all tenants in frankalmnin (except such rectors) can soe sad be sued and ought to sue and be sued Inr hukds in the tempaal eourte by the ordinary ectiona. And thia. we oej add, taiiilvM the ■wart Km that they ought not to sot or be eoed eteewhcre^ The eodeiiastical oonrts an not to meddle in any way with tho title to land albeit held in fnmkalnwiin. To preront their as doing, writ* are in oonunon use prohibitjng both Htjyte aad ecdeiieetical judges from tonohing ' lay fee ' {Imeum ytwdaw) in the courts Christian ; and in Breeton'e day it ia ftnaly eal^ blishud that for this pnrpoee land may be lay fw thoogh h ia held in free, pure, and perpetual alms' The intaribreaee of the spiritual conrts with land has been hemmed wtthra the namn^ eet limits. The contrast to 'lay fee* is no locker (■■ in tfca Cimatitutiotts of Clanndon) Wcmommo, bot winaaeiitad bmI, tke sites of diorchee and roopnslaiiea «k1 Ihair dumhyw^ to
e.«M.
I
"list USA. Us. M.
B. r. 407 i KeM Bo^ pL U7. IIO.
ca. I. S 2.1 Franhalmom. 251
which, according to Bracton, may be add^d lands given to churches at the time of their de<iicatiou\ The royal court la zealous in maintrainiag its jurisdiction ; the plea rolla are covered with prohibitions directed against ecclfesiastical judges"; and it is held that this is a matter affecting the king's crown and dignity — no contract, no oath to submit to the courts Christian^ will stay the issue of a writ^ But the very Ire- queacy of" these prohibitions telb ua that to a gi-eat part of the nation they were distasteful. As a matter of fact, a glance at
p. 230] any monastic annals of the twelfth century is likely to show DS that the ecclesiastical tribunals, even the Roman curia, were constantly busy with the title to English lands, especially when both parties to the litigation were ecclesiastics. Jnst when Bracton was writing, Richard Mareh at the instance of Bobert Grosseteste was formulatiag the claims of the clergy: — ' He who does any injury to the irankalmoin of the church, which therefore is consecrated to God, commita sacrilege; for that it is res aacra^ being dedicated to God, exempt from secular power, subject to the ecclesiastical forum, and therefore to be protected by the laws of the church*.' It is with such words as ^bcsc in our minds that we ought to contemplate the history of
^ ^rmkalmoin, A gift iu free and pure alms to God and hia sainte has meant not merely, perhaps not principally, that the land is to owe no rent, no military service to the donor, but also and in the first place that it is to be subject only to the laws and conrts of the church'.
1 BnctOD, f. 407. Booh lands oonatUate the oharoh'e dot or dower. See also f. 207 b.
' See Mote Book paiHtn. The writ of prohibition is found in Olsnvill, xii, 31, 33. It is foond in the earlieet Chancery Begisters. Braoton disoosses its soope at great length, f. 402 ff.
* In the twelfth oentary the donor Bometimes expressly binds himself and his beixs to sabmit to the ohoich courts in case he or they go Against the gift ; see e.g. Bieraalz Oartolary, S3, 87, 89, 69, 159, 166. So in the Newminster Cartulary. 89, a man oorenants to levy a fine and submits to the juris- diction of the arehdeaeon of Northumberland in case he fails to perform his coTenant. For a similar obligation undertaken by a married woman, see Cart. Okme. i. 804. As to such attempts to renounce the right to a prohibition, see Note Book. pi. 678.
4 Ann. Burton, p. 427. See also the protest of the bishops in 1257, Mat. Par. Chzon. Msj. ri. S61.
■ Viollet, Histoire du droit civil, p. 702: <la franche aumdne...un franc alien ...^chappant k toote joridiction civile.'
252
Tenure.
I 3. Knighft Service.
IOUhj We now turn to military tenure, and in tfa« fint _
warn onrseWei not to expect an emsy tatk. In aome of our modern boolcA militnr}- t4<nun.* hnfl a definitenaM and n suhility which it nevor hwl elttuwhcrv. An amy t* teltled oo the Land. it rootad in the land. The grade* io 'thatrriae' tuiiMpiiuil to, and tndted are, the gr»d^« of InntlholdtTRhip : th« mprama Undlurd iit fiomRUuidi'r-in'Chi«r-, each of hi« immediate lananta is the gcDeral uf au array corps; the regimflnta, aqnadrn— ^ etwnpaniw, aiMwor to boooan or manon or knight'v leea All in acniratoly defined ; each man known hix place, knowt bow many day« he roast tight mi«i wtih what ornuk This'finMU •yitem * it the military •y*feem of England from the Normaa Conqoflet onwardn ihroughoul the middlt «f«i; by mini of it our land ii defended and uur victoriee ut woa ia Wafaa and ia Ireland, in Scotland and in PraBC«. — When bowaver w« look aft tho fiurU, hII thtM definttanflRa, all ihin Htability, vmniah. We mt* growth and decay : wo aoc decay bi'giuning boforv growth t> at ft& eivL Before then i« much law about military tenurv it ha» [^i almoet ooued to be military in any real eeiuM. We mint haw rvgnrd to datea Every one Itnowa that the miHtaij teaare of Charles l.'s reign was very different firoin the military tconw of Edwaiti I.'s; bat this again was TL*ry diflerent feMB the military tcanre of Henry Vt or even of Henry II.'i iwign.
Soon after the Conqaeot a piixw begins whansby th« dotgr l^wSSSj of aenrico in the army become* rooted in the tannrc of hmL ""*' Thia goeti nn for a century ; but before it ia finitbrd, beftn Um ayatem of knight's fees has been well wilered aad oiiaiige*!. Ik* kings are already discovering that the force thus cr«at«d is not what tht'v want, or ia n*it all that they want. It may actw* la defend a border, to harry Wales or Scotland fnr a fe the sammer, but for oontinnons wan in PVaace it will aot the long would rather have money ; he begin* to take *oa^ This, as wr »hall soon tea, pnetieaUy alien the wbola iialwiB td the institution. Another ccatuiy got* by and aevlagv Haotf k baeome antiquated and tinpto6 table ; another, and acuta^ no longer taken. Speaking rotighly sre may oay that lhw> HOB eaatwy (1066—1168) in which the military really military, tboagh aa yat Ihtft ia little law abual
CH. i< § 3.] Knight's Sennce. ^^^^ 253
that there is another century (llfiG — 1266) during which these
tenures still supply an anay, though chiefly by supplying its pay ;
I and that when Edward I. is on tbe throne the Tniiitary organiza-
^P tion which we call feudal has already broken down and will no
^^ longer provide either Boldiere qr money save in very inadequate
ttinounts. liowever, just while it is becoraing little hotter than
a misnomer to spe^'k of military tenure, the law about militaiy
texiure ia being evolved, but as a part rather of our private
ithaa of our public law. The tenant will really neither fight nur pay flCUtage, but there will be harsh and intricate law for hira nbout the reliefs and wardships and marriages that his lord can cluiiu because the tenure is mUitarj'. Thus in speaking of tt-niire by knight's service as it wae before the days of Edward L, we have to speak not of a stable, but of a very unstable inatitu- tioQ^ and if of necessity we deseribG it in general terms, this shotild not be done without a preiiraiuary protest that our generalities will be but approximately true, As to Bcutage. in the whole course of our history thia impost was levied but some forty times, and we can not be certaio that the method of ^m] MeeflsiDg^ and collecting it remained constant. An English lawyer turning to study the hiatory of these matters should ^ remember that if Littleton }jad cared to know iimch abont them, he would have had to devote his time to antiquarian research*.
1 There is only one h&lf-oentory daring which wntagea ire freqnentlj impoMd, namely that whioh lies between 1190 and 1240. The early histoiy of ■eutage ii now in the omcible. New materiaU have been rendered aooessible by the poblioation of the Bed Book of the Exchequer and some of the Pipe Bolls of Beniy II. 's daj. Two important tnwta have come to onr hands at the last moment, viz. (1) J. F. Baldwin, Sentage and Knight Seirioe, Ohlosgo, Univermfy Prev, 1897 ; and (2) J. H. Boand. The Bed Book of the Excbeqaer (privately printed), 1898. Mr Boond makes it fairly certain that oar statement {it0-a, p. 367) as to the ezisteooe of scatage before the days of Henry n. is not strong eoongb, and he leaves as doubting whether at this point Henry did much that was new. Hr Baldwin has thrown light on many details. While agreeing with oa in holding that in the last days of soatage the tenant in chief can not escape from the doty of military service at the ooet of paying soatage, Ur Baldwin seems inclined to hold that in the earlier time the scatage was treated as a fall eqoiva- lent of the service. His researohes seem to show that Henry II.'b endeavour to charge the tenants in chief with the number of fees that they had created if it ex- ceeded their old tervitium deltitutn {infra, p. 266) was not permanently sacoessfal. Not the least interesting result of Mr Baldwin's essay is the proof that, as com- pared with other sources of revenue (dona, auxilia, tallagia), the importance of the wntages may easily be over-rated.
254
TemtPe,
[sK. n.^
.11
By fiu" the grmUie part or EagUnd b held of tb« king by knight's aomoe (p§r MtrUium nUHtart) : it n compantiTel j rum for th« king't teouU in chiof to hold by nny of tho ethar tonarm. In order to andonitand thin tcnqrn wp mqst finro lh« ooDMptioo of • iiiiit of military ktvico. That omt wifii lo bt tb« Mrrio* of one knight or folly uin«d boraeoMO (mtWcAmi utiittM mititit) to be dooo to tb« king in his army for fbcty da}-* in tho yoor. if it be called for. In what wars racb Mnriea mm* bo doofi, wo need not here detenninfl ; nor woald it bo tmtf lo do ao, for from time to time the king and hu barons hava qiiarrnlU'd iit>niit the Axt^iii uf the obligation, nnd more than crisis of coUHtitutiuoal history has this for iu cause. It ii qnestion, we may say, which nover receives any l^gal anawiar'.
Even the limit of forty days twema to hava axisted latbar is t^ theory than in pracii<x\ and its theoretic exiaUMMM <ma h«dly bo proTod for England out of any aiithoritatif* doeomanl*. Boft we hear of some such limit in Nonnau. French and Osmw Isw, and atKimptfl have been made to tnoe it hock to tb» days of the Knrloviugiau emparDCi. From the Toormine of the toanth nentiiry we hnvr a de6mt« statcmoat ' The faaraas nan of the kmg an- txmnd, if siimmooed. to follow him in boat and to M?rvi:< ni ihcir uwu cunt forty days and forty nighia
with ss many koighu ns they owe him And if the king will
keep thorn more than forty days and forty nighu at tbair nm, thay need not atey nnleaa tbay will ; hot if the king wiB kaop them at his csost for tfa« dcfoocv of the rralm, tbey oagbt Ip^ rights Ui stay ;bnt if the kin^ woukltaka tbacn out of tba nnfa% they nii-ed not go uuNmi they like, afUr they bare done llMar forty daya and forty nights*.* Bat the foroe of snob ■ rab it
■ Stabkii. CooM. HM. L MS-4. 0. Ut tm- Unmij Is UM IW I Ite Abbot of 8« Bdonad'i asMttad I^X tfaty wm» art boaiii ta Um Tmimi JomUb of UnlndooJ (CuwL Soa.). OL B^t, tteboy mt I Iwi i^ }mi faak matk a dtnUw anpfUfto , ma vrfia* U im tnm th» ah wall sf oalriJa fba bouMh of XaaUiul; TUa HagM B. Hm""**. Mt. »m aim ■bayaf ho« Um kslghia a< OnManiMi nimU to MWa TUmt* imtm ; Chros. 0» MfflM, tL lOT.
' WhU UulPleB. Ma. W^ fesa to Hjr «a Ibto aattor k MUto bwltHwal sotfiSMfaal— t
» VMla, fliMI—ilK, a. tt-it «. n, —-«. la nla sMsa to hsn kon thsi 4W naisl «aa aaSy kesal to iai vmkn aAv lUi te mmA al hla lar4'a aaat t SAiMw. D. & 0. Moctosa^. tot Secama, pL At Asaiaeaa OisniMi, p. M,aM.
CH. I. § 3.] K?iight'8 Service. 255
feeble; when in 1226 the Count of Champagae appealed to it and threatened to quit the siege of Avigtiou, Louis VIII. swore that if he did so his lands should be ravaged *. In England when a barou or knight is enfeoffed, his charter, if he has one, sftjrs no more than that he is to hold by the service of one knight or of bo many knights. When the king summons his tenants to war, he oever says how long they are to serve. The exception to this rule is that they are told by John that they are to serve for two quadragesinis, eighty days, at the leaaf. Occasionally in the description of a militury serjeanty, it is said that the serjeant is to serve for forty days, but to this are often added the wortis 'ab his own cost,' and we are left to guess ^t^] whether be is not bound to serve for a longer time at hia lord's cost'. In 1198 Richard summoned a tenth part of the feudal Ik force to Normandy; nine knights were to equip a tenth; the " Abbot of St Edmunds confessed to having forty knights ; he hired four koights (for hie own tunants had denied that they were bound to serve in Normandy) and provided them with pay for forty days, namely, with 38 marks ; but he was told by the king's ministers that the war might well endure for a. year or more, and that, unless he wifihed to go on paying the knights their wages, he had better mahi- fine with the king; so he made fine for £100 \ In 1277 the knights of St Albans served in a Welsh campaign for eight weeks ; during the first forty days they served at their own cost ; afterwards the king paid them wages '. No serious war could be carried on by a force which would dissipate itself at the end of forty days, and it seems pro- bable that the king could and did demand longer service, and was within his right in so doing, if he tendered wages, or if, as was sometimes the case, he called out but a fractional part of the feudal force •. We have to remember that the old duty of every man to bear arms, at least in defensive warfare, was
^ H»t. Par. Chion. Maj. iii. 116.
' Lords' Beport on the Dignity of t, Peer, App. i, p. 1. The Bommonses of the feodal array are collected in this Appendix. > Terta de Nerille, e.g. 146-7.
* Chron. Jooelini de Brakelond (Camden Boo.), 68.
• Geata Abbatom. i. 486.
■ In 1212 John gires orders for the payment at his cost of the knights in bis aerrioe, from the time when the period shall have elapsed daring which they are bound to serve at their own oost ; Bot. CI. i. 117.
256
Tenure,
['
Dover — not own in Franco — completely meff«d in. or obHl imt«d b)'. ihc foitiUI obligntion'. Jost when there oeane chancv thai this obligation may become atrictly dBfioed hf tb* ojK'mtirm of the law oourt«, the king ia bc>|pnniug Ui lovk la] other qtuutcm for a aupply of toldiers, to insist that all shall he armeH, to compel men of nibatanoe to buoome kn^gkta. oven ihuugh they do not bold by military lentire, and to mn» commiaikiDJi of amy. fa^ But these nnits of military service. howc»cr ii
they may be. have become, if wi> may w speak, temtcrialiasd. I A certain definite piece of laud ii* a knight's fee (Jtodmm mt^ilu)i\ another tmot is oonoeived as made up of Art or las knight's fbea; another is halC or a qQart«r. or a fbrtielh partof a kai^t's fisc. or, to luie the current phrase, it is the tt» of half, or & quarter, or a fortieth part of one knighi {feodum ^(wadragmimm pariU uniiu mUitu)\ Tht! appearance of small fraetiaaal part* of a knight's fe« could hardly be ezpUlDed, were it not that th* king has been in the habit of taking money in lieu of military •erriee, of taking ncuUge or escnage (mmtagium), a som o( ao much money per knight's fee. Without r«lercnce lo thb m might indeed undcnrtand the <nii«teaco of halves of knight's leea, for practice has lanetioDed the equation dmo jiiiii'ilwin— e »aim. two aeijeanta irill be accepted in lien ofocie knight'; hot a fortieth port of the service of one knight would be nam* telligible, were it not that from time to time the aornea of «n» knight can be ejtprcwed in t«nns of moDcy. Alraady to Hanfj II.'s reign we hear of the twelfth, the twenty* ffwth port of a knight's fee*; in John's reign of the fortieth*; and w« soaa hear of single ocrra which owe a deiSaite quantum nf military service, or rather of scutage.
To rvprvaeot to onnelvea the meaaiag and albel uf tiaa appurtiuomeni is no easy oMtter. In the fint plaoa, m hav*
bfi
1 Ab to FrsDM. M TloOal, iTliMlsiWsmii. M. M; ML Ma JU 'nmtiuinu NorauoniAa,' m« • «atfMr fnalsl ky Joka to i^ AlfL of: Bol. Cm«.IM: •iKiSooin*. II.M; Asifaat riulsiii. y> M.
* Th« Konnui torai fto^tm hr<«w, Jkif 4f JU«farf. mm ■mlBad. rtUl U nuv tM (omul : tlw AUmM dT Tft«MMk koUa anM« wi Ika m A dir h^m^trfk ; Ilei. Haad. L U. Ot CwwmHsm CUifew mt ■. 11: •Umtm <■! p» tofksslWBM am» <— iilssi' lit* wpmk of Uw kalt^» tmamt mmimm, fmAim^mt} Is iiliiwui I
* 8MlkiBnftatnl*s(S4«. L: rsri WrUa. L ItT. OB.
* UWf ■iiUl. 1. Bit. • nm*r, FlBMw L U.
CH, I. § 3.] Knight's Semce. 1157
V to observe that the Wnn ' knight's fee' doea not imply aoy par- ticulw acreage of land. Some fees are much larger than other?. This truth has long been acknowledged and ia patent '.
H We may indeed see in some districts, for example among the knighta of GlaKtonbury> many fees of five hides apiece*; but in a single county we may find a hide of land reckoned as a half, a third, & fourth, a fifth, and a sixth of a knight's fee*. In the north of England one baron holds sixteen carucatea by the service of ten knights, while in another barony the single knight's fee has as many as fourteen carucatea* The fees held of the abbot of Peterborough were extremely small ; in some casea
iWj he seema to have got a full knight's service from a single hide or even less*; on the other hand, a fee of twenty-eight carucatea may be found*; and of Lancashire it is stated in a geuf^ral way that in this county twenty-four carucates go to the knight's fee^ In one case, perhaps in other cases, the law had made some
H effort to redress this diapanty : the fees of the honour of Mortain
" were treated as notorioualy small ; three of them were reckoned to owe as much service as was owed by two ordina^ fees'. Perhaps a vague theory pointed to twenty librates of land as the proper provision for a knight; but even this is hardly proved*.
Another di^culty ariseg when we ask the queetion, what Nat"« o* was the effect of this apportionment, and in particular what Uonmeut. persons did it bind ? Modem lawyers will be familiar with the notion that an apportionment of a burden on land may be effectual among certain persons, ineffectual as regards others. Let us suppose that A owns land which is subject to a rent- charge of £100 in favour of M and a land-tax of £10 per annum ; he sells certain acres to X ; .<1 and X settle as between themselves how the burdens shall be borne; they agree that each shall pay a half, or perhaps one of them consents to accept
1 Co. Lit. 69 •, 69 b (Hale's note); Stubbs, Conat. Hist. i. 287; Boand, Feudal EngUod, 331 ff., 393 ff.; Hall, Liber Bubeas, vol. iL p. clxiU.
* OUstODbory Inqaests (Boxburgh Clab), pastim. > Teste de NeviUe, 63-4.
« Liber BQbeoB, i. 386,431.
* Chron. Petrobo^. 169.
* Kiikby'i loqaest for Yorkshire (Sorteea Soo.) 196-7.
' TmU de Neville, 408. " Madox, Exch. i. 649.
* Stabbs, Const. Hist. i. 288, and Bonnd, Feudal England, 29S, seem iaclioed to accept this theory. See also Hall, Lib. Bub. vol. ii. p. clxiv.
P. M. I. 17
S58
Tenuns.
[bk. II.
brlurw ^M
Ibo whole burden. Now, allowing that thia U ui cffvctual Agretment between them, wo mtaU have the qowUott wkethn- it ou ID any way affect thd righta of if or of the kiag. who have hitherto been ablo to treat the whole Land an eubject l» the whole reDt<hai;ge and the whole tai. It will not tbemftue sorpriae os if we find that the apportioninent of trtiliury was not absolute TWiffor* We may bcf^n by considering the relation between Ijjlujla kxag and his tcnAQt« in chief Wo have good nnmn tu u4%f ^^^ ^'^ Conqueror when he enfeoffed his followetB with tcacte ^Mwi Ib of foiieited land dofined tho number of knigbU with which ibry t»J were to anpply him, and alao that he defined the number of knigbta that were to bo (bund by the oathedial and mniiamo churc-hcn whose land had not been fiiriuted. It would doI ba true to aay that in thin way the whole of Biiflaad waa, m between the king and hia immediatA tananta, out up iaio knighta' feea. From the Conqueat oawaitb he hod ittuoediato t^nanta who held of him by frankalmoin. by •erj'^aoty. in aooago ; slill in this manner a very bu^ part of Bng***"* was bnMi|;fak within the scope of military contracts or what ooald be r^ardad as ench. How definite these oootmcts wera we can not tmy. far to all seemiiig they wn« not ojcpreased in writing. The ooly doeameatary evideooe that tho great lonl of the Cooqaaror's day oould have produced by way of titlenlffi^d. was, in all some brief writ which oovDmandM) the royal officers in aeisin of certain lands and said outhing about by which ho was to bold them. And again, in the churches, if we speak of a contract, we an> haKfiy right wonl ; it waa in the king's puwcr to diotot* term^ and ha dictated them. Whether in so doiog he paid much or any regard to the old Engliah law and the ancient land'boaki^ ia a qoestian not eoaily decided, for we know littlif uf th» hgri oonstitutioo of Harold's army. Thf rmult was oapricioua, TW relative wealth of thu abbeys of PeterbuRmgfa, 8t EdoraadX St Albans and Ramsey can nul have basn expnmed hf Ik* figures GO : 40 : 0 : i, which repreecated their l^fathif suw^ih in the twelfth cvntory ; Si AJbans may hnva |vofi|«d hf n dkarter of King Oflla. at whieb Mxbm dipkwnatiiKa haw ImM aakanee*. But, at any rale aa rsguds Um fcHritod lands of tW
I lUi. 1^. Ouoo. lUi. «i 1 1
qaaror's day
itepotU^H the tsMi^H aseertfa*^
yn««lh*
CEH. I. § 3.] KnigMs Service,
Knglish nobleSj William had a free hand; he could stipulate for so many uoits of military service from this count a,nd so many from that baron. Appareutly he portioned out these miits in fives and tena. The number of knights for which a great baron is answerable in the twelfth century is generally SDcne multiple of five, such as twenty, or fifty. The total number of knights to which the king was entitled has been extravagantly overrated. It was certainly not 60,000, nor was it 32,000; we may doubt whether it exceeded 6,000. The whole feudal array of England would in our eyes have been but a handful of warriors. He was a powerful baron who owed as many aa sixty kuig'hts. We are not arguing that William in- troduced a kind of temire that was very new in England; but there seems to be no room for doubt that the actual scheme of apportion me lit which we find existing in the twelfth and later centuries, the scheme which as between king and tenant in chief makes this particular tract of land a fee of twenty or of thirty knighta, is, except in exceptional cases, the work of the Conqueror'.
At any rate in Henry II.'s day the allotment of mJlitaiy Hoi«raPt service upon the lands of the tenants in chief may be regarded hanmioa. as complete. It is aheady settled that this tenant in chief owes the king the service of one knight, while another owes the service of twenty knights. Historians have often observed that the tenants in chief of the Norman king, even his military tenants in chief, form a very miscellaneous body, and this ia im- portant in our constitutional history ; a separation between the greater and the lesser tenants must be effected in course of time, and the king has thus a power of defining what will hereafter be the 'estate' of the baronage. In Henry II.'s day the king had many tenants each of whom held of him but one knight's fee, or bat two or three knights' fees. On the other hand, there were nobles each of whom had many knights' fees; a few had fifty and upwards. Now to describe the wide lands held of the king by one of his mightier tenants, the terms honour and
* This we regard m hkving been proved hj Mr Bound's convinoing papers in E. H. B. vole. vi. vii., which are now reprinted in his Feudal England. Some- timee when land oame to the king by way of escheat and was again granted oat, new terms would be imposed on the new tenant; bat in the main the settlement made in the Coaqneror's day was permanent. As to the old English army, see Uaitland. Domesday Book, 166 ff. 296. 808.
17-2
260
Tmurs,
[BK.
bnrrmtf wen vsmL Befcvcsn thea* two tamu w« can dimw do futrd lijM ; konottr ■oema to be gn»mlly rcMrred lor llwt nry brgval oomplexM of land, and pcrha|Hi we may aaj that every faoDoor waa deemed a barony, white not every barony wa* umuUIj caUed an houoor; bnt ibu secitu a uutter aeUlud by Gwhtoo ralbrr than by Uw ; for instance, it ta oaaiil lo give the name iarowy, not honour, to the loiwls which a biiohop bolda by miU era^co. though Bomc of these boroniee were rvry Urge', mark the inferior limit of the honoum and barnoin* t* tidi We CAB not >ay that any pArticulor number of knights' foes •iUwr neeeoaaty ur Bufficieut to oonetitofte m banmy ; in porticoUr, «« eon oot aocepi the theory mtfTMit in aA<rr tiBNO. thst a boitmy contaiM thirtveo knightii' (bee and a ihird. and iheralure k to • luugfat's fee OS a mark is to a ahilling*. Thia aqaataea aeeat to have been obtatDed. not by an iDdootlrc pmuuM^ bat by a dt*ductioQ. which iitait«d with the rule tlial while the fvlief paid for a eioglo kni^t's fee was a bnodred ahilHiy, tiiai paid for a borooy was a huodred morka But neilher eaa w the Gwta sqofire with this theory, our, as will be bmd faabiw, we Ueat the nilo about nliab oa being » ■■ciet as iha eoa* Btitulion of baroniea*. Nor moat wa tUnk of the faanay honour as lurrouDded by a hng'Eeoot; ftagnwuts of it often be eoattered about in various eouncicw. tboogb tbara •umo castle or sijme manor which is oociHuilerl its * head.* Tlwbm7 We find it aaid of a man not only that be hokls a bamoy am* (t0n0t 6aroRuiffi), but also thai hn buUs by banmy ((sael p>r
glilt!^^ ^ ianmumX This phraae will deaerre discaanoa benaAer; ftc *^ the present it is only neeeamiy to notioa that oTery militarT tenant in chief of tht* king, whcthcrr ho bos a faanoy nr ao^ ia deemed to owo the Krviou of a ccrtAtu number of knighlik That number may be large or amalL Let ns sqppoae that in a givaa case it ia fifly. Then in a eenae this teoani may be aaki to hold 6fty lim;;hu' fees. Bnt aU the land. U least if aU of it ba hdd by one title, and every part*of it, h aianmmhle to the kii^ for the fifty kuighta This tonant may ifaaff mmm fifty
1 Thfmttlhkmm I riadpiHy
tnndbMkwybr. 5n M mmm lo Imm
ewiW7i Uff.BM.M.|l.«bi«atMMirt«walflM«i4*t«feii
• BdAn, TUU* af Ummw. |a. b^ m^ v. ml H.
• n* sMmI «<wilaM «r lb* Chwaw aioU «M HIM ta haaAMl Mork^ kms boadnd pottaJii, to tkU ««n lt« « toisay >U«U —sula tmmtf ttm.
>«i«rlSlba
"^
CH. I. 5 3.] KnigMs Service. 261
knights, making each of them liable to serve in the army ; he may enfeoff more, giving each feoffee but a fractional part of a fee, that is to say, making him answerable for but a fractional part of one knight's service; he may enfeoff fewer, nmking each of them answerable for the service of several knights; he may retain much land in his own hand, and look to hiring \t-VtS\ knights when they are wanted. But, as between the king and himself, he has fifty knights' fees ; he is answerable, and the land that he holds is answerable, for the production of fifty men. Every acre in the honour of Gloucester was liable to the king for the service of aome two hundred knights and more. If the Earl of Gloucester makes default in providing the due number of knights, the king may distrain throughout the honour, or seize the honour into his hands. The exact nature of the power which a lord had of exacting service due to him from a tenement need not be here considered ; but the main prin- ciple, which runs through the whole law on this subject, is that the service due from the tenant is due also from the tenement, and can be enforced against the tenement into whosesoever hands it may come, regardless of any arrangement that the tenant may have made with his sub-tenants.
This may be illustrated by the case of lands held in frank- ReiatiTity almoin of a niosne lord, who himself holds by military service, kiiigbt's In this case something like an exception was occasionally ad- ^^' iiiitted. The canons of Wroxton held land in fiankjvlmuin of John Montacnte ; the land was distrained for scutage ; but on the petition of the canons, the sheriff wiis bidden to cciuse from ilistraining, ' because the fraiikalmoin should not be distrained fur scutages so long as John or his heirs have other lands in the county whence the scutages may be levied.' This is an exception, and a carefully guarded exception ; if the tenant has given land in frankalmoin, the king will leave that land free from distreHS, provided that there be other land whence he ain get his service'. Thus, let us say that a baron holds twenty knights' fees, and ha-s twenty knights each enfeoffed of a single fee ; the boundaries between these fees in no way concern the king; the whole tract of land must answer for twenty knights. An early example of this may be given; — at some time before 1115
' Madox, Exchequer, i. G70-1, where other cases of Henry III.'b reign are given. John had observed this rule : Rol. Pat. w2. writ in favour of the Abbot (if Stanlaw.
262
TVmire.
['
the Biihop of Hanlbrd gwe LitUe Ueruford uid Ullinirnnrk to Wftltor of Gkmowter Ibr the service of two knighto ; Wklt-pr gmn Ulliogiwick m e mumj|e portioo for hie deufithter Uwnd free from all knight's eervioe^ and thoa, m betw««*n all pe claiming uikU't him, tho whole wrvioe of two knigbu waa ih oo to Little Hcnrfurd. Thnu really ' a knight'a fe« ' » a ivUti term ; what in two knightii' fees as between O end B, ia hoi of two an butwevQ H and AK In tbo time of Henry H. i the king was beginning to take itock of the amount of tnili aerrioe fine to htm, it was oommoo lor a tenant in nhiaf anowcr that he oonfencd the eornoe of, for eiamplo, ten knight*, that he had five knighu cnCMfied each of a knight'* foe, and that the other fire he pruvided fiwcn hie demeflia'. In <ne oue. even at the end of the thirltwnth century, a \ord had not carvrd ont hi* Iniid into geagraphically dintioct knighto' feea. Somehow ca: anothor the abbot of Ranuey held hie faioad lands by the eervioe of only four knight«, and we may tbcn- five aay that he had fonr koighta' foea Bot thoee ftf were »oa separatod areas ; ho had a number of tenante owing him auUtaey pcrvicc ; they choae thv Ibur who «n any particubu- oeoi * should go to the war, and the others ooDtribui«d to deftay ex{wnae by an ■(■iiMiiwrnt on the hide'. Thus the staMMnenk a man holds a barooy. or a parcel uf knights' foaa, «f the tells OS nothing as to the rehuionahip brtweon him aad tmanta, and does not even tell ue that he bee any at all. Dwtr of The military t«mant in chief of the crown waa ae a
ur7 trai^Ht nilff bauDfl to go to the war in penoa If he held hy the of fifty knights, bo was boornl to appear in penon wilk nina If bo was too ill ur too old to fight, be bad to ma only a nibstitute but abo an excuse*. Womeo might
' BomI iiwiil ChsrtOT, p. H. In IMT, )«am «• Mkal hy «kal AfMB d* Wslmll boUa a Doaikar of mutan: '9m% «*«■ eiwhMl ■■larsia, qola Ma Ufoale i» Wsl B«Cl pro US. niUtibos*: |tol» Book. jO. lUOL
• LiW Rabva*. pwrt*. e.f. p. WSi 'CmI* a 4tSeftbm S. ttiUea hftbOT MbIm M mrtUbim w. wtOUmm
tuthiH.
riM la MMorial CewH W- M-Cl; »«■■* B. K*, cart. Baa». Ui. 41^ tie, ssA ttomitA. TtaM Wmt/tamt, »a Ai Isb4 WA m« hum «•! sy hrt* lii^ sad ik* •mum m IswTtiiil aalr teat It^sto Is aei iWrialinl
• Bm tb« MulM Balk (if IIW sad tttl la TtA Wtl^wL L,a#.^ JBS:
era. I, ^ 3.1 Knight's ^^mce. 265
substitutes and so might ecclesiastics'. The monks of St ».1b01 Edmunds thought it a dangerous precedent when in 1193 Abbot Saiusou in person led his knighta to the siege of Windsor'. How the nature of this obligation -was affected bj the impc^ition of acatage is a question that we are not as yet prepared to discuss.
We must first examine the position of a tenant who holds ^l'^,''*" by knight's service of a mesne lord, and we will begin with a militaiy simpio ca^. One A holds a tnoss of lands, it may be a barony ° or no, of the king in chief by the service of twenty knights, and B holds a particular portion of these landa of ^1 by the service of one knight. Now in the first place, ^s tenement, being part oi A'a tenement, owes to the king the ssrvice of twenty knights ; it can be distrained by the king for the whole of that service. But, » between A and B, it owes only the service of one kuight, and if the king distmina it for more, then A is bound to acquit B of this surplus service ; this obligation can be enforced by an action of mesne'*. On the other hand, B has undertaken to do for A the service of one knight. The nature of this obliga- tion demands a careful statement : — B is bound to A to do for A a certain quantum of service in the king's army. We aay that B is bonnd to ^ ; B is not bound to the king ; the king it !£ true can distrain B'b tenement; bat between B and the king there is no personal obligation*. The king can not by reason of tenure call upon B to fight ; if somehow or other A provides bis twenty knights, it is not for the king to complain that B is not among them*. None the less, the service that B is bound to do, is service in the king's army. Here we come upon a
'Boberttu de Harkluun infirmiu, at dioitor, offert Mrrioiom dimidii feodi militis in T. laeiemdQm per W. de L. sementem.'
* Thia is often shown b; the fonn of the sttntmona ; the lay man it told to come with hii Mrvioe; women and eoolesi&BtioB an bidden to send their acrriee.
* Joedin of Brakelond (Camd. Soa.) 40.
* See above, p. 288. ' Thoa, aooording to William Rnfas, the knights of the archbishop of
Cant«Tbai7 appear in a Welsh war without proper armour ; Bnfua makes this the gnmnd of a charge against Anselm. Freeman, Will, Bnf. i. 674, argues that even if the charge be tme, it is not well founded in law ; but we can not a^ree to this. Anselm may perhaps complain against his knights ; but the king's complaint mnst be against Anselm.
■ The king may compel B to do his servioe to J ; see e.g. Bot. CI. i. 117 (for BaliA Bemers), 297 (for the abbot of Peterborough); bnt we must distinguish between what the king does aa feudal lord and what he does as supreme judge and governor.
Tenure,
BK. n.
W»bi4
principU of gn«i imporuuo& Aooording lo the kw of th« king'a ooart. do tcnuit U imjoad to 6gbt in any armjr bat the king's wmy. or io uiy qoarrol bat th« king's quureL It mighA well bftvfi bvao othonriMi; we mfty iM ih&t it Marty «■■ othcnriM; «• may be fiuriy certain llmt in ihw nwpcct t Uw WM DO ■dsqaiU expnwtdon of ibc cunvnt routBlilj ; we can not ny tbat tbe Uw of EngUnd ever denMDded priTsta wnrfiur'. IndubitAbly the military tcouil often tsoooeived aelf bmod to figbt for bis lord in hit loid'* qajurel ; bat law eiifbrawi oo mtdi obligmtioa. Troe. tb« obUgatMS wfaieh finnctioDed woe one Uuit bound the ouin to tbe lotd. aod in % oertain ■eoM boand him to fight lor hii kcd It waa at tha Sord'a anmmcoji that the man oanie anncd to tha boat, and if the lord bad many knights, ibe man fought ander the tonTa baaner ; Rtill be wnfl only bound to K>fht in tb« kini;'« army and the king's cjuarTel; bia aarrice wai duu to hu lunl, etiU in a very real dcase it wa» done for the kii^ and only for the in tthort. all military aervice is rtfftiU trrritimm. H ta the urcoaiary to lay stress upon this principle, for it had not pr»- vailod in Normandy. The Norman baroa bad knighla who wen bound tu M>rvt> hiiu. and the aerrioe doe fron tlia« to him had to bo distinguished from the aerviee tbat be waa bowMl W find for the dnke. The bishop of Caataaoes owad Ibe daka the senrioe of five knighta, bot aightoeci knights wen booad verve the bishop. Tha honour of Uontlpfft ctMrtatoad t one knighta* fbas and a half for the locd's aervioe; bow for the duke's aenrioe the jnroni eootd not pay. Tba of Bayeox had a hundred and nbwteen kn^u' Ceas aoil a half; be waa bound to siitd hb ten best knights to aem tbe king of tbe French for forty days^ and. for their vqaipoiaaA, bo toob twenty Rouen shiUinga from avaiy Cm ; ha waa benad to find ft*rty knighu to serre tha dnka of Nnnnandy Ibr fbrty daf^ and for their equipment be Uxik forty Rooeo shilUnga from ofVfjr fae; but all the hundred and nineteen kirigb>i wvn bennd to eerre the bi«hop with arms and bones*
As a matter of fiut, howcTer, w« aomatlmea iad. Ofan in "^g****^- t^t knight'a aarvicv is doe. at luast that what ia oalls4 knight's serviee is doe, to a lord who owea no knight*a wmnm
I
iWstteBi >
adfria
la Rsi Bosk «f IW B
to the king, or tlirat more knight's service is due to the lord th^n he owes to the king. One cause of thb pfaenomcnou stay be that the lord is an ecclesiastic who has once held by military service, bat has succeeded in getting his tenure chunged U> Enrnkalmoin by the piety of the king or the negligence of the t »*<] king's officers. The chronicier of the Abbey of Meanx tells us how the abbot proved that he held all his lands ix\ Yorkshire
I by frankalmoin and nwed no mititary service, and then how he in•^i3ted that lands were held of him by reiilitary tenure and sold tlie wardships and marriages of his tenants'. Since he was not bound to find fighting men, his tenants were not bound to fight ; BtiU their tenure was not changed ; he was entitled to the pro- stable casualties incident to knight^s service. A similar result might be obtained by other means. The abbot of St Edjnuads held his barony of the king by the service of forty knights ; snch at least was the abbot's view of the matter; but he had military tenants who, according to his contention, owed him ftltogethcr the service of lifty-two knights : or, to put it another way, tifty-two knights' fees were held of him, though as between him and the king his barony consisted of but forty*. The view taken by the knights was that the abbot wae^ entitled to the •ervice of forty knights and no more ; the fifty-two fees bad to provide hut forty warriors or the money equivalent for forty. But in Richard I.'s day Abbot Samson, according to the admiring Jocelin, gained his point by suing each of his military tenants in the king's court. Each of the fees that they held owed the full contribution to every scutage and aid, so that when a Bcntage of 20 shillings was imposed on the knight's fee, the abbot made a clear profit of £12^. Bracton says distinctly that the tenant in socage can create a military sub-tenure. This, however, seems to mean that a feoffor may. if he chooses, stipu- late for the payment of scutage, even though the tenement
1 Chren. de Helsa, U. 210. 222-3.
* Liber BabeiiB, i. 394. Bat in Henry II.'s day the view taken at the Exchequer was that the abbot owed aid for fifty-two fees. Madox, Exoh. i. 572. Bee also in Testa de Neville, 416, the amaaing letter in which the abbot in Henry UI.'b reign profeasea an absolute ignorance as to the whereabonta of hia feet: — *In what tIIIb they are distribated and in what place they lie, God knows.'
> Jocelin of Brakelond (Camd. Soc), 20, 48. See also Feet of Fines TAB Bk. L (Pipe Boll Soe.), p. 63 fl., where are printed the documents which record the abbot's victory.
ttnt^*.
owm oooe to the king. Id «uth cam tho •cutagv lu; ■Mn l» uf but a rvut aipricioit«ly MMMed. but itppAiY'ntly BnOUn would cmll thfl t«nurv miUUuy, uid it would iienre to ipiv tbi> ^1 lord the pn>fiubtu rightM uf wiu\jMhtp kikI luniagv*. The extnordinory lirciice which men enjoyed of cmting new trnnren gave birth to some wooderfal ooinplicfttioUL If B hoUa m kuight'* fco of A, then A cma pat X betwevn hbaMlf ftod B* •0 that B will hold of X utd X of il ; but furlhiT, the MrvicM by which .T will hold of A twod not bo the wnrico by which B hM hitherto been boldiag of A tad will now hold of X. In Richard'* reign Henry de U Pomnai places William Briwciv bctwMD himaelf and a number of tonanta of hi« who allegttlMr own tho wnrioe of R/| knights or tberoabouta; but Willtaai is to hold of Henry by the lerTico of one knight'. To 'wurk oat the equitien * arising U<^twocii tbcM vaiiom penona wooU b* Ibr OS a difficult task : »tiU no good would oome of onr repr^ eeoting our ftubject*inatter as simpler than really it ia. Laatly. ■a already hinted, we must not suppoee that tho faBuom or ar— the prelates of tho Norman reigna were always thinking nanl^f of the king's rights when they inmmnded Ihwimli— vtMl enfeoffed knigfata. Thoy aUo had their •ftftnWa, and amanf tboM soemiea might be the king. Still the only tnilify aarvieo demanded by anything that we dare cmll BofUiA hm WM aervioe in tbo king's boutt It would further aeem. tbal Beary XL, not withoot •oiaenieoeN.eDdeavoured todedDCftftvM Ihia principle the oooetaiiaa that if a leiwat id ehiaf iiifwiffij more knights than he owed to the king, he thecvby incraawd the amount of the w>rricp that the king oeiikl demand fnm his. Such a U'uaut in chief had, wo may tay, been m«kit^( against himedf : this waa the opbuoa of his royal lord'.
The ptMtioe of taUi^ aealagee most have inliodaeed the system a new element of preonoa and hare nnnaaiftned a downward spread of the lenum that waa caltad military. Th» extent of the obUgation eoukl now be expronmd in Untm of ponnda, ahillings and penre : and ftenanta who wwre ait iwaOy Mperted to ^(ht might be bound to pay acatage. On tlM ochar haiMi the history of acqtage is foil of tbe owat pwpioai^ itifi- mdticib Bvfar* appnaehing tbes* we will onoe mofv eatl M
■ Bnrtoa^lM.
taw.
• rtMi tO. Keaawti ti IL
CH. r. § 3.] Knight's Service. 267
mind the &ct that scutage is an impost of an occasional kind, that there never were more than forty scutages or thereabouts.
p. MS] We are wont to think of scutage as of a tax introduced by Nature of Heniy U. in the year 1159, a tax imposed in the first instance on the military tenants in chief by way of commutation for personal service, a tax which they in their turn might collect from their sub-tenants. But it seems extremely probable that at a much earlier date payments in lieu of military service were making their appearance, at all events in what we may call the outer circles of the feudal system'. In no other way can we explain the existence, within a very few years after 1159. of small aliquot parts of knights' fees. When it is said that a man holds the tweutieth part of a fee, this can not mean that he is bound to serve for two days in the army ; it must mean that he and others are bound to find a warrior who will serve for forty days, and that some or all of them will really discharge their duty by money payments. We read too in very ancient docu- ments of payments for the provision of knights' and of an auanliuin exercitus, the aid for a military expedition*. In Normandy the equivalent for our scutage is generally known as the auxilium exercitus*. In England the two terms seem in course of time to have acquired different meanings ; the lord exacted a scutage from his military, his nominally military tenants, while he took an ' army aid' from such of his tenants as were not military even in name*. But what we may call the natural development of a system of commutation and subscrip- tion between tenants in the outer circles of feudalism, was at once hastened and perplexed by a movement having its origin in the centre of the system, which thence spread outwards. The kina; began to take scutages. At this point we must face some ditncult questions. between
>.247] In what, if any, sense is it true that the military service of^Jn'i"f
tenaiil in cliiff. > Round, Feudal EnRland, 26« ff.
* Charterof Abbot Faritiua, Hist. Abingd. ii. 135.
' Kamsey Cart. i. 147 ; aee also Henry II. 'e Canterbury charter, Monast. i. 10.5-
* Somma, p. 70; Ancicnnecoutume, c. '2.'), wlicre the auxilium exercitun seems the equivalent of scutage. In some Norman documents it appears as one of the thret; aid>4, alonf^ with those for knighting the son and marryin;; the daughter; Aacisiae Normaniae, Warnkiinig ii. 58 ; Tr^a ancien contumifr, p. 39.
' See Rot. CI. i. 570-1. Of these aids we fhall speak in another sicLion.
liw tMftnU in chief wtut commuted into 8cul«g« f Tbs king's boa govt forth mmmoning the host to « campugn. U mjf* do wonl of ■cuUgv. Can tfao baroa who uw«a Lwont^ kuigfau tit Ml home and my, * I will not go to tho wv ; and if I do Mi p\ no worn can befall mo thaii that I shall haT« to pajr aealag* for my twenty facs, and thia indeed viU be no heavy borden. fur I shall be entitled to t^e a aeatage from the knights wboai I have enltwAed ' — can the baroo wiy this f Even if hr can, we most noCioe that his aelf- interested caieuktioiM intolve qm nnkaowa qoantity. It msy be that on sone oeeasioas Um kiaf really did give the banm an option brtween leading his knights to battle and paying soow ^ed nun. But stich was Dot the ordinary oonnta, at all evsnto in the tfairt««nth ooatuiy. race at which the sctitAge was to be levied was not dftcnniot until Aft«r the dcfaolten* had eommitted their deCsnlte aftd eampoigu was over; the boron thcreforv wiM luyod at did not know whether he would have to pay twenty Burikl^ twenty pounds, or fMrty pauncU Bat a« a matter of &rt, find that in Hemy Ili.'a day and EdwanJ L's the tenant in > who dooe not ob^ the enmmon* must pay far more thaa seutagc ; hv must pay a heavy fine. No upitoo has hven gma him; he has been diaohedieni; in strictiwm of law ha baa proliably forfeited his buod ; be most nofce the best t«nae theft he can with ih*; king. Thus in ivepect of the campaign of ItIO, a Boutage of thrve marks (XS) wu impoaod upon iIm kaj^ft^ fee ; but the abbot of Evesham had U> pay ftr hia 4^ Ctaa, Deft £9. but £20: the abbot of Penhore for bis 3 feea. nut £4, bet £10; thi- abbot nf WrMminstrr for his lA frai, nel iS ^vk^ but lOU uuu-k*'. In K/lward L'a day the fine far defrnlt io ■• ntterily difTfrmt thing fnnn the MMftage ; in 1304 be that he will take bat moderate fines ftvcn women, if they prefer to pay money nUbtr thsa amd We hear of such finea as £S0 on the lee when tbe mtteft m bat Zt on the fee*. Furthermore it emms erident tbnt if as optioo had bfrii giv(« between peffumnt mvk» and snutiys, evefy one would have prvfamd the latter and tbe kia^ wm^ have been a sad kiser. Perhaps it is nut absolutely imp iwflila l^t Uewy IT. when he tuuh twu marks by way of
ML
'.LI
« Sn tin writ i> Uor*t' * 0«1> IhfcMiw. 0. M.
CH. I. § 3.] Knight's Service. 269
from each fee, took a sum which would pay a knight for forty days ; in other words, that he could hire knights for eightpence a day'. But while the rate of scutage never exceeded £2 on the fee, the price of knights seems to have risen very rapidly as the standard of military equipment was raised and the value of money fell. In 1198 the abbot of St Edmunds hired knights finr Normandy at the rate of three shillings a day'. In 1257 the abbot of St Albans put into the field an equivalent for his due contingent of six knights, by hiring two knights and eight esquires, and this cost him hard upon a hundred marks, while, as between his various tenants, the rule seems to have been that a knight, who was bound to serve, required two shillings a day for his expenses'. At about the same date the knights of Ramsey received four shillings a day from their fellow tenants*. We may be sure that the king did not take from the defaulting baron less than the market value of his military service.
Thus, so soon as our records become abundant, it seems The tenant plain that the tenant in chief has no option between providing serrice his proper contingent of armed men and paying a scutage. The ^^j^^J^^ only choice that is left to him is that between obeying the ^7 "catage. king's call and bearing whatever fine the barons of the exchequer may inflict upon him for his disobedience. There- fore it seems untrue to say that as between him and the king there is any ' commutation of military service,' and indeed for ;i moment we may fail to see that the king has any interest in a scutage. If he holds himself strictly bound by principles that are purely feudal, the scutage should be nothing to him. From his immediate tenant he will get either military service or a heavy fine, and we may think that the rate of scutage will only detennine the amount that can be extracted from the luider- 19] tenants by lords who have done their service or paid their fines. But this is not so.
We must speak with great diffidence about this matter, for The sen- it has never yet been thoroughly examined, and we are by no mUur. intans sure that all scutage.s were collected on the same })rin- *''"""'"■ ciple. But from the first the king seems to have asserted his right to collect a scutai,ro from the 'tenant in demesne'
' Bound, Feudal Kiij-'liiiid, 271.
' Jocplin fCamd. Soc. ), tj.'i.
» Mat. Par. Clin.ii. Maj. vi. H7t. ■i:H,
* StWt rioas ill Miniurial Courts (boldfn Soc), CO-2.
270
Tenure
[BK.
who hokU his land by kiught'fi Benrice. Thon dieting eieroentA in the impost ; it ia in part tbo «)ai*mleat a feadd, a tenurUl SLtrrica ; it is in part a royal tax. Tb« king will regont it now ai tho odd, and now tm tbe oibtr.aa aaito Kim best. He refiiBO! Ui be a mere lord of lonfa; ha ta abo a king of aubjocta The undertenant of « neme lord, if ha amwm military Benriof*. owea a aarvioe that is to he dme for thr kinf^; tbf king will, if ihii teems prolitable, deal dincUy with him and excuse him from service on hiB pacing mummy. And m ia tbe ibirUeoth oentury ihn Icing, while be ts euctbg aHitvjr scnrioB or fines from his UiianU ia chief, will abo ooUact •eut^e from their military tenanta Theoretaeally be ia aot entitled to bo paid fur tho same thing twice over. If a faarao has eatber prodoood the requintc number of knjghta or een- poonded for his broach of eontract, it u he aad not tbe kia^ who OQgbt to receive sciiUige; in the one cmm be oaght lo gat a acutago from any military tenanu of hia who have dtaobcjnad his call to arms, in the other all his military tonauta Buy havo to pay, though ho haa not givea them a ehoaoe of going to Um war in peraon. That this ought to be eo. sesms to bo adnteedL Such a baroa, having proved that be fulfilled hia ocatraei or paid hia fine, will have a royal writ d« tcuti^io habmdo^ whereby the fitit^rifT will be ordhsred to caoae him to haw th« aeutage duu frum hia tcnaota Still, bofer* he can get hia seati^^ he has to obtain soaething that the king ia apt to tnmt a» a favour. Meanwhile the aberifb will be taking fitf tbe king's use from tho«e who are io occupation of which military aervioe ia incumbent, and Uaviag tbe peOKina whu are interoted io those lands to aettie tbe incideooo of tbe burden as beat they may. What oooea into the king's hands generally stays there. Bot ftuthar. ia Htftiy UL's tine, thd bantu*, anHuming to act on behalf of tbe wbote ootoaaaltgr, will on ocoasioo gnuit to the kil^ a seolago in laapsrt af military expedition that has takaa plaea. and lb« this, at least in some iotftaaeei^ Meois to bo that, in riwpiinas to the king's demaads. they Bokn over to him the right to and to keep the autagw da* from Ibeir uadartoaaali» which the fendal priadple woakl hare facought mto their ooflen*. A afttifttsJ tax ia impoaed whieh the
' Urn la urtiaalir ito tii of W H«a. UL im MUoi, flal. JAar Botosa. ft. r. di.
I
.L«U;«h.
I
CH. I. § 3.] Knight's Service. 271
pay to the king. Much wUl remain obscure until the exchequer rolls have been carefully aDa,lyzed ; but this at least seems clear, tbat tbe tenant ia chieFs duty of providing an armed, force is not commuted into a duty of paying scutage. Indeed the demand conceded by tbe Charter of 1215, namely^ tbat no BCUtAge be imposed witbout the common counsel of tbe realm^ would be barely intelligible, if John had merely been giving his teuanbs in chief au option between furnishing the due tak of warriors and paying two marke for every fee'.
We musit now turn to a simple case and ask a simple ques- Th* tion. Wbat was tbe duty of a man who held by knight's service !»uii. of a meene lord! ? We will suppoae him to hold a single knight's ***" ' fee. In the days before scutage his duty probably was to serve in pereon if summoned by his lord to the king's host ; only with a good excuse might he send a substitute'; but women and ecclesiastici would do their service by able-bodied represents^ tivea. Failure to perform this duty would be punished by a for- feiture of the tenement^ But the practice of taking scutagcs aeems to have set up a change, and bow far that change went it is hard to decide. The knights began to allege that they were not bound to serve, but were only bound to pay a acutage, and only to pay a scutage when their lords bad obtadued from the king pcrmijision to levy it*. It would further seem that many
* Bobert of Torignj (ed. Hovlett), p. 202, in the olassioal passage which deaeribea the natsge of 1159 Bays tbat the king ■ nolens vezare agrarios milites, nee borgensiom nee nuticorom maltitadinem' took a Bom of money from each knight's fee, uid, this done, ' capitalea barones saos onm pancia secam daxit, •olidarios TflTO milites iDnameroa.' The king does not give his capittila baroiui an option between going to tbe war and paying scutage, but be absoWes from the doty of personal attendance their andertenants, many of whom, though in name tenants by military service, an mere yeomen {miliUi at^arii, bwgerua, ruitiei), and instead be takes a sentage. As Henry III. was boond by charter not to oolleet seatage; except in accordance with the practice of Henry II,, we might seem entitled to draw inferenoes from the grandson's days to the grandCather's. Bat mors light is needed at this point.
* To the contrary Littleton, sec. 96, relying on Y. B. 7 Edw. Ill, f. 29 (Trill. pL 28). Bat Littleton knew nothing of knight's service as a reality. Bee Usgna Carta, 1215, o. 29.
* Hist. Abingd. ii 128 (temp. Hen. L): an Abingdon knight fails to do serrioe ; ' onde cmn lege patriae deoretum proceBeisset ipsom exsortem terrae merito debere fieri, etc.*
* Already in 1196 the knights of St Edmands profess themselves willing to pay seatage, bat the? will not serve in Normandy ; Jooelin of Brakelond, 63.
^
272
[WL.
Jmnv* hy
of them made good tfau UBntioa by ateadj peiMvenuiee. Thm f^\ lonb were often ooinpeUod to him aoldien becaiue their kai^rte —their knights so called, for many a tetuuit by knight'a ivmc* wan in habit but a yconuiii — would not Aght It woold even •eera that the lenanta aa a body got the beiWT in the etniggW. and eaUbUahed the rule that if they did not chooM Ui aafTa, DO wotee coold happen to thM&, than to bo cotnpollvd to pay a acutage at the imte fixed by royal decnw. a aura much leas than they would have apent had they htnd •ohautvtea to fill their plac«a. In ahort. 'tenure by knight'a aerriee' (if a Mcaoe lord, bccumm firat in fact, and then in kw, ' uram 1^ eacoage*.
The sugea of this prooeaa we can do4 tnoa dtalUM^jr, it waa oloaaly ooimocted with tba gndval daoliiM and fiUl oC fcodal oonrti. The lord who kept an afidaat eonn of and hi« military teoanU might in early daya ciiforoe a furfriturv of tha tenement for default uf aerriee; bat the kit^'a ooait aaaaM to have given him httle or no aautanoe, awl by degreea the ivaedies afforded by the royal tribunal becwxM the aiaodard of English law'. The prooeaa muat have been haaleniid by Uw d^l
:3|
Baar k |nMB trau tha Akb^f of ■wihiwi— *»■ eotaator a 111— m Hkol IMMMM d* AbUw 4« KtmIwk. anM latale tttaak, p»mi ««e iMte. M bbUik ■nWom radnsl wOmtm aW HrtUaa limb at baa HyML* iQenii hj WiwHailay, Bortoa Cutalei?. p. %\
• la RonMBdjr V lb* nUdla of Uw UOrtaMlh «aatB7 ifaa kalgtoa* tm ^ baaona dlflafUa iato two alaaiM ; • Qnaadaai hodft larta— < datait AoeiiBia ^po4 dibrt flari Principi: %mmimm Boama.^ ISA : w* alae p. m It a«y ba aaapMaMl Ikal tba naOy Om atola of Uiiitc* Ibal ■salad la Em^bad Mdw Rmrj lit ; apve af Ika i mDj miliUr? taouM had at laMt 4t faa» iiiitnilil • rfeiM l» 4» m ilsA p«j aoBlafa. Tbaa oo Iha snatar rail af ItTT «• ia4 ttia < of X^wkoor aaja tkM W 4m* aot nmm aay wnrfaa te te Idnt 'a hb^. Urn ha boUa ft kaisbl'a (a* aa4 • hall of Ifaa ■iiliiil «J t«%W (m aadhaeM haM«y| and DWM aaat^a vhao II la ImtoMa hir lli*t kal|M'« Im ■»< a ImVV f^L Wiita. t Ml Thao 6«ai B4*«fd IL'a U^ •« Iw?* Uiii vutoea aMWt— «. b^da • kB^jht*! Iw of Iha hoBOer «r ff . eUah te ia Iha kttc^ lHa4 1 aal aa tt ama aMavriaSy, tbil hta aUlfykM to Mn^y to f^ I lea«««lar««ai Iha hiai who flUa th- pUaa at tha Im4 efflte ottlji Jiaiia^Mwtitu Uaioc. EulL L UL
• U vnUd DM ha aUi to Kr dawa a gaaMml rab. la IltT iha
Alhuu. who bui M>l7 to pt«vU« iit hakhto. Iil bj
fleiieahli aiililiij lananiB to »AmAt ibas tha? «a» baaed to B«haUea«BrtiattbmBadarih»|naiaahttaaUSl Alhua wl pi ■ MB II flf oM aflte bia«'* jiilliw who he! ^ lo Itn Ibar 414 Ihab aarriaa te Vahaw aa< ii ii Eij to abboiiiiiililthaidlgr; !•> tha totol «eat anaeaiad to bat K iMiba a^
CH. I. § 3.]
Knight* s Service.
273
ivisan of knigfate' fees. We come across persons who hold :orc than aliquot parts of fees ; we find them even in what we may call the primary circle of feudaliRm. the circle of tenants io chief; they arc common in the secondar)' circle. Sometimes « fee preserves a notional integrity thoxigh it has become iWded into aliquot p:irt« by subinfetitlatiun or by partition imoag coheiresses. The abbot of St Albuus confessed to holding six scuta or knights' fees. Each of thci^e acuta was divided amoDg several tenants holding of the abbot. When the king summoned his host, the various tenants of each scutam hod to meet and provide a knight; sometimes they did this by ing a knight, or two Serjeants; sometimes they elected one theirniimber to serve and contributed towards his expenses', we soon come upon small fractional parts, the twentieth or the fortieth part% of foes, which fees have no longer any nee as int^ral wholes. Such fractions could hardly have come into being but for (he practice of taking a scutage in lieu of per^nal service, and the tenant's obligation is often expressed in merely pecuniary terms ; the charter of feoffment says, not that he is to hold the fortieth part of a knight's fee, but that when tcutage is levied at the rate of 40 shillings on the fee he is to pay a shilling'. When the holder of a knight's fee has out ap a great part of it into little tenements each owing him some small amoimt of scutage, the understanding probably is Sti tlml he is to do, or to provide, the requisite military- service, and is then to take scutage from his tenants. All this must have tended to change the true nature of the obligation even of those btiiiants who held integral foes. If to hold the fortieth of a fee merely meant that the tenant had to pay one illing when a scutage of two pounds per fee was exacted, « teoant of a wholi; fee would easily come to the conclu- that a payment of forty shillings would discharge his ibligatioa Thu» a permanent commutation into money of
rail th* proUtai of EnglAiid ««n) oompflllad to pfty as inafih a* 50 marks |>i>r knight's f«c for dditall of Mnrioe. However, aoon ^ter this even the sbbot ol Bi JUbftDs had \o ttiakt flno for defsult of serrice, od od« ooauJon with 130 narks, on ftnother with £im (Uat. I'sr. Chnm. iUj. n. 573-C, -437-9 ; OesU AbUtun. i. 436. ii. »4.}
• UmU Vmr. Chtvo. ilmy vi. 437-9 ; OckU Al^tom, U. 45.
* H(w t.g. Kota Book, pi. 79&, whore & tenemeut is wtid to owe 10 feom vhtn lbs imM is £3 ou the knit^hl's foe.
r.u. I. 18
274
Teiiurv.
IBK.
ngkllo ■raUfr
tb« penouftl Mrrioe duo from the fabrMaftU a«eou to h*Ti- tAkcn place'.
Wlul tt nov, the right of a BMnne lord to take imifgii .oeemd hardl)- to have bc«n rt^rded. at \tmaH in the thirt««iitli wntury. im a right givtm by the cotnmon law. A lurd who had done fai« servire. ur made fine for not doing it, could with aunr trouble to himiolf obtain a writ d« tcutagio hahndo, wbiob ordered the nhorifT t/i cnllact for him the aoatagv fnm hn knightx' fecfl'. The king w said la K^nl to Uw luftk actitage ; until the king haa 6xcd the amount thorv i* that thfy cnn rt>|lcrt, vid few if any of them aUcnplad collect it without obUuniug the kiog'a writ*. Indaed it Mem that, at leant in Henry III.'* day, they had do rifht ccdlect it. If they did not obtain a grant of MUtagv fmm king, then the king hinuclf took the acutage from their for hio own uhc*. A» already aaid, there ia in acntage aa t»i p|«inent of royal and oationaJ taxation which ia iBoompatiblr 3nth purely fiMidal principlaa.
"* WhiMh'f thf umnnt of a mciDe lord coaM inaist tipoa hia right to do Hcrvioe iu the army instead of paying Kiitage ia a qtieation that we are abnolvcd from diactuaiBg. Cor peihapa
> Til* ^MtloB 'wbvllMr ncAfi «M • Uniir* titUaA tlwm "-y-
■l»wllil bj UttUtoni taxi, hM bMB iMrnvAl/ II il kj Uadm^ Wi^la,
Btwtatoo. Huiin*" utd olban. Thi aamnr la U mmmm to W —(1) tmrn «• adjr ttiM than inn* nuigr ImbbIi, ttoM ei maaH AUi|M« futm •! ka|^«*' ttm, vfae WM« beand to paj MBtafi, tal vba •■» haad|y* •*« te tkmmf, ksw ba« kNuid to a«liL (3) Al • Uhr dftto lb» paal bdk of tte wmtmf iMMte of ami I lordi «mb OMtoisl; in fcs^ pi«W* ^ ■hMqi ^ilk to h>«v laa boaai to do ao nam tbMi ptjr fnUfK. (A) It • um^ni amtmm* >■ ••• doMOod to bold fm atntHum MlJiUrr. abJ U* ImtJ ted rigbto or wwdiliiy ud ■■Haji
• Tlw vrtt te to fUff. br«T. Ortf. f. M (iimtogi «r 1 ed». OLV Wm vrili aM Boi. Ct L ITl (ISHK 477 (t>18|, «Tt (tfllj. iTl (!>■}. (in«). ftr. .Ud lf*doi. Kuh. i. «TS 1 Nota Bna, yA. au. lavt. aad fui. t loa, «hw« aa tb« iirtlllaa of Um to««M iW ktac pwato ■■!■!■ 8a ia Knnaiidy ttm 'aaalUaa umtktm' fc» ^AtmA m qood «oaoidlt frioovpa WirwBBtai» teto MiwrilM y« ffWo, tiuaftM •( MiiUubw do OOi i|«i toBMrt do oto •MMaAw eato Ui fwdo lotteUi ao« moIm iwlll— yetonuii auorfav* qiun ito oaoaaMD* fuotii • fiiiiiyi X«««MBani
■ Modot, BxdL L 8aa-«a4: MO miilitlj ik« «ho oa ^ •■, Hto & H«a. Ul.|: WUltoa da Barma la ■■■— imid toian I tokMUMtogi IN« a toUUaiy taaaai «l Uaivtonat U oaiMto. unhaAmO,
CH. I. § 3.] Knight's Service. 275
it was never raised^ But as regards that duty of ' castle-guard ' which was a common incident of military tenure, the Great Charter lays down the rule that, if the tenant is willing to do the service in person, he can not be compelled to pay money instead of doing it*. However, in the course of the thirteenth century this duty also seems to have been very generally com- mated for money payments.
One more exceedingly obscure process must be noticed. Beduetioo Somehow or another in the second half of the thirteenth cen- namber of tury the tenants in chief succeeded in effecting a very large ^|f reduction in the number of fees for which they answered to the king'. When, for example. Edward I. called out the feudal host in 1277, his ecclesiastical barons, who, according to the reckon- ing of the twelfth century, were holding about 784 fees, would account, and were suffered to Etccount, for but little more than 100, while some 13 knights and 35 Serjeants — two Serjeants being an equivalent for one knight — were all the warriors that the king could obtain irom the lands held by the churches. The archbishop of York had reduced his debt from twenty knights to five, the bishop of Ely from forty to six, the abbot of Peterborough from sixty to five. The lay barons seem to have done much the same. Humphry de Bohun offers three Knights as due from his earldom of Essex; Gilbert of Clare, t-arl of GlouceHter and Hertford, offers ten knights, with a promise that he will send more if it be found that more are »iue. While, however, the lay barons will generally send as many men aa they professedly owe, the prelates do not even produce the very small contingents which they acknowledge to lie due. Now these magnates were not cheating the king, nor I'l idea vou ring to cheat him. It was well known in the ex- chequer, notorious throughout Cambridgeshire *, that the bishop
1 There is NormaD authority from 1220 for an affirmative answer. Delisle, hecueil de jugements, p. 75: 'ludicatum eHt...quod Abbas [mesne lord] non liotest alium mittere in loco eiuudem P. [tenant by knight's service] ad faciendum wrvicinm quod feodum dicti P. debet quando dominua res debet sen vult capere wrvicium soum de Abbate, dum idem P. servicium quod debet de feodo suo in propria persona sua facere velit.'
' Charter of 1215, c. 29. A substitute may ho sent, but only for reasonable
* See the two muster rolls of the feudal host ; Parliamentary Writs, i. 1U7,
* lUtt. Uuod. ii. 411.
18—2
876
TVmtre.
D
of Ely, who would mnfcm to but nx fiwa, hnd forty at th» IvaaL Thi' kiug WH not dtoeivwL The biithop, having pmt n-* knigbtii at all, had to pay ft fine uf 240 markii* that u. 40 markit lor each of the mx fow. Some of the pnlateii, we are told, hid to pay an much aft 50 tnarlu for ovpry foa', and y«t ifai* ■onUge for this war was but two pounds, that U, throe matb. on the fce. The rftlaciiun in ihu nomiiuil nmuunt of tarn fbr which the baron w oompellcd to answer in aocatnpanic<i by an at least proportional incnsM of tho amount thai he paya in re^Mot of oTtry fee. [W Thin change seenw to toll us three ihinga lo Uie ftnt plan*, it was impomible for the prelate to get milxtaiy out of his miliUuy tooADi& The practice of mbintradai Ibaiewd by tho king'* court, had niinwl the old aynivm. foe* wrrr now rtplit up into imall frartiooa, and they wen the handfi of yoomen and mall equircw. Secondly, be willing to pay a large mim ral^or than hire kni^ta. knight with bin clabctrate panoply had become a ooaily In the third ploco. the king by thin time waoted BMoey than he wnntc^l knighbi; if ho had roooey. be ooald get of all aorta and kintb an plc«»cd him btat. And to be wibum t*i have winked at the introdudioD of a new tefminotop, really there wa» Uttte viae ihui was new. PmrwiBd tlal btabopof Ely paid him £160 for hia Wrtih oampaign. be not cue whether this was called a doe of six marioi forty lees, or a fine of forty roarke for e«cb of stx Ims ; whJW bishop, who would hardly find nx tenants willing lo prefer* tbe new set uf phrases. But then, our aJraady syefcem is fbrther cotifounded, for tbe bishop, who hae bat fees for tbe king's wrvicc when the call is far wnnion or a ffar. win aasimdly avert that be has. as of oM. forty fMs wb«i tkr time oocDcs for him to take a sculagc fmm bis fiante, and in this way he may, at the rate of three niark« per fo«» »aeoeer, if be is lod^ and pernstcnt, about half the ram that be hsa bad pay to tbe king. But in truth, tbe wb<^ syetsm ie ofasoteie. If t4.-uure by knight's eurvioe had baa 1300. the kings of the lafaaeqatat ages wouM have besa dapR< of the targe rerenue that they drew from wardships, and so forth; really they would have lt«t little eba*.
U niimm
Wc have next to observe that a lord when cufcoffiug a Miliuij ttioant was frDC to impose other services in addition to that ctHobhud military gervice which was incumbent on the land. Suppose ^^^^!j^ that B holds a knight's (ee of A; B may cufeoH* C of the ibc, ttipulatiDg that C shall do the military service and also pay him a rent. Perhaps it was usual that a tenant who held a whole knight's fee should have no serious service to perform in tuldition to the military service, though, in such a ca«e as we have put, B would often stipulate for some honorary rent, a ^^ l»iir of spurs, a falcon, or the like. But when we get among ^B the holders uf small plots, we constantly find that they must ^V pay BCUtage while they also owe subst-antial rents'. A few ^K entries on the Oxfordshire Hundred Roll will illustrate this, ^■At Rycoto, Adam Stanford holds the whole vlll of the eiu-l of ' OxfonJ for half a knight'a fee ; bo has a number of fi-eeholdera boldiug small plots; they pay substantial rents and 'owe ncutage'; one has a virgate, pays 75. Qd. a year and owes tst] ticutage ; another holds three acres for the rent of a penny and owes flcutage*. Oileu it is said of the small freeholders that beside their rent they owe royal or forinsec service (cle&en/ regalet ddfent /orinsecun\)', aud, at least in general, this seems to mimn that they pay scutage and are nominally tenants by knight's service ; for Bracton's rule is clear, namely, that if the tenant owes but one hap'orth of scutagc (licet ad unum ol>olum\
Ehis tcnnre is military, and this rule is fully borne out by imn d«*lt bat foperficiaUy with i. moat difiicult sabject. We thail b&vo done •onw good if WD pensoodc uthen U»t Oimv ai« yet nuiojr qumtii^ns to ba saswtnd bj » diligent tluOy oi Uie exohe(|aer roUa. Bee Roll, Lib. Rub. toI. ii. Prvfooc. > Tbo 6nM of ttiohud's and JohQ*« rdgne presaot oam«roa« init&noM of ilispoKittoDi of both IhcM ctauesi^thatt (Fines, ed. Hunter, i., p. 23] ii gift of hftlf B hidB to be held of the donor ' per fomuiecani Hcrvicium quod nd lantom lafiM perttnet*: (p. 81) a gift of % rirgatc to be held of the donor 'fioiendo ind« forimoeum Kerviciom (|uuitiim pertinet od ilUm vir^tam terra« pro omni Mnicio'; (p. 91) k gift of a qaarter of a virgnte to be held of the donor by tbt wniee ol dim poond of pepper annually ' salvo foriuauoo wrvitiu quod ad doniDOai B«getu pertloet d«ead«ia quarta parte virKi^ue terroe'; (p. 9S) a ^It o( ■ iiMaaiintii uid wv«o virgaten to be held of the donor by the urvioe of 34 thflHpcf aanoallr 'aalro ragali servido Kilicet Honrloio dimidii militia'; (p. *i74) a gift of a nif—iiana and thna aorea to be held of the donor at a rent of 12 pcnoe, 'aaTiuit Iba Idag'a Mrrioe, OMnel;, S peace to a aoatage of 90 ahiUin^ and no in proponion.'
' Rot. Hand, it TAG.
* Hot Bund. ii. e.p. 783, 7ft7, 701).
S78
Tmmre.
fsK. n.
pleftdiDgB and dMsirioita*. Th» pinni u important i — thf di vim-, « belwoen tenonU in moage and tcnaiiU by Iciiight'ji mttici' d*>r« Dot oorru^XHiii, nave in the roughmc maimer, lu any potitiral. tooial or eoooomie divisiaiL The ttmall jreoman oUt-n h«\d^ hi* littlo teDcment by a tenure which is nooiirtalij and k^{aUj tlw Mumti tenure as that by which ihc knight holds hi* manor'.
With the duty of nttondiog the kiog in hia vara «•■ oftco oouplfHl the duty of helping to garriaon his onAlaa ; mar* mn*ly Ibe latt«r duty appeanf without the furmeT. Thu koigfata of tba Abbey uf Abingdon were buuud tu guard the king's eaaU* of Windsor*, tho knights of the Abbey of IVtoborouKfa hit oastle of Rockingham*, the knights of tho Abbey of 8t fHwiri his caatle uf Norwich, lu Ueur)* Vt* day tho bishop of purduued for his knights tho privilc^ of doing wan) wi the isle instead of at Norwich*. Such scrvioii waa well in Normandy' and France', and is mentioned in DomMadmf Book'. The forty or Afiy knights of St Bdmaads w«r« divided into four or five troops {€imHahd%tu), oaefa of which bad to guard Norwich csstle for thre« months in the yaar*. Oftea ft iVMOcnt owed ' ward' Co » Cw-off eastle ; thus in CV«ibridf» ihira wife laiKb h«ld of (ha Goont of AumAlc whieh owmI ward to hts imtle of Craven**, and knds bald of tfae Oo«Bft *4 Britanny which owed ward to his esatle of RMhrnood". W« •peak as though thosu castles beluogvd to their traanta in
> BnotoD. t ar. Km Um smm ciiMl sboM. ^ f», mm S.
* U U imr*. Ihoofh aoi saknowi. to tad tksl ■ taassi ta tiIMi^ is aM Is ysy MaU««. DoqhH» Um ••tchi «l ^vMm oAm Ml oa Iki
or taBsnb: b«t It ai«kl ha** b«a ihug Is mmH mtHam «« «
iIm vflfates. ss Ihb Biifbt hsr* wiBoarmi thsa to Mswt ih*i tkiw
> HtaL AUofl. U. «,
• Boi. a. i. sn.
» Pipv KoU. II Bai. U p. 44 ; Mamtm. I 4m.
• 8m Uw AiiiiUi NoraMBis* Is WsnkAwc** Prssilifli
ailMli f-T r-'nr — ^'- --* — •-^■-i^-TT -n— " —
r l^elM, ftlitilli^iiiN. H IT
■ O. B.I. Ulb] * ti» ■o4wa L— at— %m^i falslftw !■>— <i M 4dm liwiokin ta awSerfls ib WfaUwona.*
• TblN te • ito|4abaUsB •( Um rtof^ i ih* ^hbu mU hii lilgiiU ■ tolUMauloftiMHrriMtolsdaBs; J— to «f Btifcrfnad, «». IM.
>» BM. Usad. U. Ml. " Boc asa4. IL HO,
n
CH. I. 5 3.] KnigMs Service. 279
chief; hut the kings were wont to regai-ci all castlea as Id a WM sense their own, and the duty of castle-guard, like the duty of
service in the host, though due to the lord, was to be done for
the king. Before the end of the thirteenth century, however.
|iAymentB in money had tisually taken the place of garrison
duty'.
While the tnilitarj' system of feudalism is thu8 falling into ^1*^^"*^
decay there still may be found in the north of Enylaud JreKK^si^- scaittered traces of an older military syatem. The Noniian
ifLilites are already refusing to do the service to which their tenure binds them, but there are still in the ancient kingdom of Northunibria ihegns holding in thegnage, drengs holding in drengage, thegng who are nominally bound to do the king's ' (itware.' Were these tenures military or were they not i That was a puzzle for the lawyers. They had aomp features akin to tenure by knight's service, for thegna and drengs had been summoned ta fight John's battles in Normandy ; in other respecte they were not unlike the serjeanties ; they were sometimes burdened with servicea which elsewhere were con- sidered aa marks of villeinage; tinaUy, as it would seem, they were brought under the heading of free socage. In truth they were older than the lawyers' classification, older than the Norman Conquest".
Above we have made mention of tenure by barony and Jeu'ire by
' ' bftrony.
passed it by with few words; and few seem needed. True, we may find it said of a man, not only that he holds a barony (tenet baroniam), but also that he holds by barony (tenet per baroniam), and this may look as though tenure by barony >*] should be accounted as one of the modes of tenure*. But so fiu* as the land law is concerned there seems no difference between tenure by barony and tenure by knight's service, save in one point, namely, the amount of the relief, about which we shall speak below. So far as regards the service due from the tenant, the barony is but an aggregate of knights' fees. There is no amount of military service that is due from a tenant by barony as such ; but his barony consists of knights' fees ; if it
' Hall, Liber BabeoB, ii p. coxxxvi.
) See MaitUnd, Northambrian TeoareB, E. H. B. v. 625; Hall, Liber Bobeiu. ii. p. ocxl. ff.
* Bot. Hmid. ii 18 : 'Badolftu de Oaogy tenet feodum de EUinoham de dom. Bege in capite per baroniam per serviciom tritun militam.'
280
Tenurf.
[ML
n
oondsUi of twentjr knigfata^ fees be h aiwweimblo fin* Uw of twenty knightM, if it ouosista of Gfly knighUi' (am, iboi he must produce fifty. Atid so, ogftin. with the vanooa ineidwtt of leuura, aidi, wwdsbip, marriagu, iwchoat, all mn raliaf; then veeni to be no ipeciftl rulos for tenure by bwoay or lor the LeDure of a banrny; it u but tenure by knight's scr^ioe of a oertain aumber of koighta' Ibea, unluu iuduvd it be — and in MOM oaaes it is — teooro by gmnd scijeonty. The fact that a oertatD muB of Undi ts deemed a barooy haa aone lew iegd conaeqiieDoefl of a mbordinate kind. Always or geoeraHy aonie castle or some manor ia regarded aa the head uf the baruoy, and it would socm that for aomo fiioal and adroiui«(rmtiT«: purpoHea the whole barony mm treated as lying in the ooan: that oontained ita head. Then, again, a widow ii not Co endowed with the caput Aaroauw, and the capyi baronuM u noi to be partitioned among niheirevetV Such rulca a« thoae may neceoritate an inquiry whether a certain manor it the bead of a bnmny or a single knight's fee hold by a wparate title'; but they will not juntify ua in co-ordinatiog iranre by banny with the other tenuroa, luch an koigfat'a aerriee and aarjoaaty.
Of ooofw. however, * baniiiy ' can not bo treated ■■ a oNtv matter of land tannre. The barooa, togalhar with kbe «aiH have become an eatate of the malm, and to make a maa a mambar of this catato it is nut anfficie^L that be abould be a military tunant in ohief of the ciown. A line haa beaa drawn whieh ouUi thi* body of such teoanta into two phmw Tba qneation by what inmnti and in aooocdanoo with what priadpla that line wan drawn has been mueh debated. We ahall prehah^y {^ be near the truth if, in accordance with rwcent writen^ ww Niganl ihu difltiDciion aa nno that in gradually iDliodoead by pmetioe and haa no preoae tbeoiy behind il*. The neoua meat of military tcnanla in ohiaf eoold seA bold aa an eetate of the realm. The greatar men dcali direeftly wilk the king, paid their duea directly to the excheqnar. farav^kl their retaiuL'ta to the boat under tbtfir uwn baoaen, waia nam* monad to do auit ia the kiug* oourt by write diraolad to
'BriUfiB.tTtKWL • Xoftt itook. pi. n.
>Dalk».UMlbAc■^.A.la•T.wLiB..^nt Melt
eOti U. in-la«: OaaM. Vm^m^ttam^mta. WT-ft.
,11.
TIUv«l
■ *■
CH. I. § 3.J
Knight's Sci'vice,
281
^
by name ; the smaller men dealt with the sheriff, paid their dues to him, fought under his banner, were summoned through him and by general writs. Then two rules emphasized the distinction : — the knight's fee paid a fixed relief of 100 shillings, the baron made the best bargain he could for his barony ; the practice of summoning the greater preopio by name, the smaller by general writs was consecrated by the charter of 1215. The greater people arc maiorea barones, or simply barones, the lesser aro for a while barones secundae dignitatis, and then lose the title altogether; the estates of the greater people are baronies, those of the smaller are not ; but the line between great and small baa been dmwu iu a rough empirical way and is not the outcome of any precise principle. The summons to court, the political status of the baron, we have not here to cooiiider, while, as regards the laud law, it is to all appearance the relief, and the relief oiUy, that distinguishes the barony from an aggre- gate of knightH* fees, or makes it neccst^ai-y fur us to speak of tenure by baruny.
When, however, a certain territory had been recognized as a barony or an honour, this name stuck to it through all its fortunes. Honours and baronies were very apt to fall into the I] bands of the king by way of forfeiture or escheat owing to the tenant's treason. When this happened they still kept thoir names; the honour of Wallingfurd might have escheated to the king, but it was still the honour of WnlUngford and did not lose it« identity in the general mass of royal rights. Nor was this a meru matter of words. In the first place, the escheated honour would probably come out of the king's hands; the general expectation was that the king w^ould not long keep it to himself, but would i-estoiii it to the heir of its old tenant, or use it for the endowment of some new family, or make it an appanage for a cadet of tht; royal house'. But the r4>n- ttDued exiatenoo of the honour hod a more definite, and a legal meaning. Normally, as we shall see hereafter, the militaiy tenant in chief of the king vraa subject to certain exceptional burdens from which the tenants of mesne lords were frea A t«Daub holds of the loi-d of the honour of Boulogne : that honour eacheat« lo the king; the tenant wilt now hold tuimcdiatoly of the king ; but is he to be subject to the peculiar burdens which are generally incident to tenancy in chief? No, that
> StDU>t, Contit. Hist. 433.
honeonL
388
Tenurf,
[nc a
would be UD&ir, it would be chjuging ika tcnns uf hia tenvm. This wu reoof^ijwd by the practice of the 6xob«<{aar undar Henry U.'. and the rulo waa conBnned by the Qraal Ctuu%m*, ThuH it beconiM Decenary to di»tinguiah betweon tboM t«<n>rta iu chief who are conceived an having always held immcdiatrly of the Itin^, aiid tboae who hold of the king merely a in«Miiu lonlKhip haa eicbefttcd : in other word», boii who hold of the king aa of bin crown {tU tU coroaa) and Uioee whn huld nf him aa of aa eaoheatad honour {ut ds <■— fti, id Jt hoHiirt. ttt tie haroniu)\ On the other hand, the relief fcr barony having bt>fn fixed, two baruniui do not becnme merely bccAUM* they arc held by one penna; the honour of^ Chuv. the faonuar uf Gloucester, the hcoiMr uf Si Hilary and a moiety of Earl Oiffiud'e honour meet in the baode of Ewl Gilbert ; bo baa to pay for hu throe and a half honoon a tvUcf | of £350*. An honour or barony is thoa regarded ae a of lands which fruni of old have baao bald by a aiiifla title*.
§ 4. Serjeant If.
Utttmltr
The idea of a serjeanty a* conceived in Ibe thirtMntb OQntury i» not ooaily defined. Hare aa elaewbere we find sevfral different claaiee of men grouped together oadar am heading bo thai the bund that oocmeotfl them ia alight ; alan «r find it difficult to mark off aerjeauty from knighls aarviee on the one hand and socage on the other. The testa aoggaalad by UllleUiH arv iuapplicable to the document* of this a^*. W« can not lay that the duty of aerjcanty must be perCorosed the tenant in hia proper peraon. we oao not say that *petij aefjeanty' hae aeoeaiahly any oonnezioo with war, or iWi une can not buM by seijeanCy of a me«io ton), or that pei^
• OteL 4t Im*. It. M. ■ Obartv. ItU, «. O.
* Umtom, liiniah linWaea. Itrwulmiil: IU«ft»*«. OUBi. BmI PrVW«; y. C
Lnr.
Aa*., p. m 't drink UiOT •■> Ml ft^ ia tlw nim of Kla( Bmrnj IKL m
H. ID, Uhl Um •4Uar'«
toOa UL tmm\
CH. L § 4.] Serjeanty. 283
serjeanty is 'bnt socage in effect '^ Even the remark that ^aerjeantia in Latin is the same as servitium*'' is not strictly trae.
Here indeed lies the diflSculty : — while every tenure implies SeijeMiiy a service {sermtxum), it is not every tenure that is a serjeanty mrrioe. {serianiia, serianUria) : every tenant owes service, but not every tenant is a servant or seijeant {servienft\ still less of course is every tenant a aermis. A single Latin stock has thrown oat various branches ; the whole of medieval society seems held together by the twigs of those branches. Here we have to deal with one special group of derivative words, not forgetting that it is connected with other groups*.
We may begin by casting our eye over the various ' ser- Type* of jeanties ' known in the thirteenth century. First we see those owed by forms of service which are tbe typical ' grand serjeanties ' of ie^t« m later days, ' as to carry the banner of the king, or his lance, or to '^®'- lead his army, or to be his marshal, or to carry his sword before him at his coronation, or to be his sewer at his coronation, or his carver, or his butler, or to be one of the chamberlains of the .268] receipt of his exchequer*.' Some of the highest offices of the realm have become hereditary ; the great officers are conceived to hold their lands by the service or serjeanty of filling those uffices. It Ls so with the offices of the king's steward or seneschal, marshal, constable, chamberlain ; and, though the real work of governing the realm has fallen to another set of ministers whose offices are not hereditary, to the king's justiciar, chancellor and treasurer, still the marshal and constable have serious duties to perform'. Many of the less exalted offices of the king's household have become hereditary serjeanties : there are manj' men holding by serjeanties to be done in the kitchen, the larder and the pantry". Even some of the offices which have to do with national business, with the finance of the realm, have become hereditary; there are already hereditary chamberlains
' Lit. HecR. 153-161. ^ Lit_ g^^. 154.
' Some ftcribes, it is »aid, distinguish teriantia, tbe land, from serianteria, the service or office.
* Lit. Bcc. 153. 5 Stubbs, Const. Hist. i. 383.
* ' Seriantia W. M. pro qua debuit esse emptor coquinae dom. Regis,' Testa de Seville, 7B ; 'Seriantia hostiarlae dom. BcKis,' lb. 93; 'Seriantia pro qua dcbuit cuBtodire lardariam dom. Regiw,' lb. 140, 232. We are comiwUed to cite the bod but only edition of the Testa. But see Hall, Lib. Rub. iii. 1305. Mr Hall's index enables us to omit nonie citations given in our firnt edition.
Tenure.
[BK. n.
of the excbci|Uor who do their aorvice by deputy*. W« a that all thflto offiost, if wt n^ord odIj their titloi. Imv« thing monial aboat thorn, in the old nnd proper waao «^ tlw word 'menijii'; thoir dution arc tgrvUia nuttmonalia, Umj Uv oott&ected with thv king's bouMtbold. It toAy bo long maoe the pnHl.y>ifM>ini in title *if ih«M men reully oookcd th* ktn('s diniiur or grooiiictl th<! king's boraes: but they glorf in tiU— which imply, or hftvc implied, that th«ir duliat atq of ihk menial kind ; nor i« it always oasy to my wbeo or wbsUwr tlw dnty has becornv honorarj. When lh« CoDijnvror givos half a bide of land in Qtouoeatemhire to his cook*, it war* bold to say that this C«nant did not really roast and boil ; and what ■hall we 9»y o( the oook of thu Count of tioulugnv* 1 Hmm soiMterod nbfiut Englaud wc find many men who an wud la hold by seijoanty and are bound by their tcnorv to do ollwr ■ecfioes, which are not no distinctly roemal* that is to say, ai* ooft so closely connooUid with the king's houaobukL Thoj bound to carry the king's letturt, to act as the king's when tbe baron» of the neigbboorbood are to be Mmaoaod. to ud in conveying thu king's treasora firom plaoe lo pbee, or Iho like Again, and thu is very common, tbeiis ia auus aar)esait; of the forest, ibey are chief foresien, or under IbreMsca Thm king's sport has given rise to nuniectMis eerjeaatins: neo ara bound by Wnurv lu keep boonds and hawlu for him, Ut iad arrows for him when he goes »«booting ; and we osn noi say that theae are honomry or particularly hoaoarahia asrTioas : la find a truai of straw for the king's oat«:r rhainhrr when be atsgra at Cambridge, this also is a aeijeanty*. Tbe oarpt'ot^r. tbv or tbe ganlener who holds land in tbe neigbbourbood of royal castle iu rvtura fur his work holds a sesieanty*. Bot, many sefjeaattea an oaoneeled with wartarv. Tbe of all is that of fimting a serrant or lerjeant (ssratsaCsai) U> da duty as a soldier iu ibe king's army. Sometimes bo is to be a fooUsoldior, somutimos a bofaoHKiklier (<
i
> Mstei. Kub. tt. «l.
• D.fi.mb.
• 'BebNtw 4* WBialM
« Ttna, UT: M tei ted UUm far iW ki^« Ud
•■4 Im4 tur bia ^Msal B kt n|««l 4fMS«l mi 0t
CH. L § 4.]
Serjeanly,
285
nentern erja\lem)\ often the nature of the arms that he is to ir i» prescribed ; often he is bound to servo for forty days and no more, sometimes only for a shorter period ; often to serve only agaiottt the Welah, sometimes to serve only within bis own county. It would be a mistake to think that tenure supplied the king only with knights or fully anuod horsemen ; it supplied him aim with a force, though probably a small force, of light horsemen and infantry, of bowmen and cross-bowmen. It supplied him also with captains and standard-bearerB for the national militia; men were bound by their tenure to lead the io&ntry of particular hundreds'. It supplied him also with the means of military transport, with a baggage train ; few ser- jeanties seem commoner than that of sending a ' Serjeant' with hoise. sack and buckle for the carriage of armour and the like*. It fiupplieil him, to some small degree, with munitions of war ; if one was bound by tenure to find lances, arrows or knives, this waa reckoned a scrjcant^.
A man may well hold by serjeanty of a mesne lord. Scrjewi^ Bnu:ton speaks clearly on this point. The tenant of a mesne lonh. lord may bo enfeoffed by serjeanty, and the serjeanty may be one which concerns the lord, or one which concerns the king. Thus, for example, he may be enfeoffed or a ' nnlknight ' bound to ride with his lord, or he may ha bound to hold the lord's picas, that is, to act as president in the lord's court, or to cany the lord's letters, or to feed his hounds, or to find bows and arrows, or to cany them : we can nut enumemto the various possible serjcanties of this class. But there are, says Bracton, other seijcanties which roncom the Wing and the defence of the realm, even though the tenant holds of a mesne lord ; as if he be enfooffcd by the serjeanty of finding so many horse- or foot- soldiors with annour of such or such a kind, or of finding a man with horse, sack and buckle for service in the army".
All this is fully borne out by numerous examples. TheTy(>««al^ grand serjeanties of the king's household were represented in owe.lt.> ' the economy of lower lords. Thus John of Fletton held land at '^^_
* T«sta. 5S : Serjeant; to be constable of 200 fDot-8oldi«n so long u the king !• ia Wklra. lb. 114: Sorjcanty to c&rry n pennon io tlie king's ftrm; liefore llM lboi->olil'ier« of the hmidrvd of Wootton. lb. 119: ' Bsnioium porUOili
popali prowvioentiB p«r muinkm (7).'
* Aa to thate 'wok and backle man,' wmfl rvfcrmcn are given in 8«le«t Hmn In ManoriAl CourU (Setden Boo.) i. 186.
< Bmeton, (. U b. OompAn Fleta, p. 108.
dOk
286
Tenure.
[ml II
■IM
Flottou in Huntingdooshirv hy the •orvicv of being aUwAid tho Ktibnt'N hnl) At Potcfboroogh' ; at Cbltasford to (>xlbniahu«] Jt>hn Whit« u bouud by toatm to bold Uw lord't court tvie» « ytu* ; io the nine ooaoty « terwnt of thv Etfl of LioouId miM place the \neX iiixh bofora tKe earl, and Ahall harr a rud bmm the eoii Ukt! other free sBiiaBiit«*. Thr abbut nf GluooMlir bu tenanu who 0|MrMul his table, who bold towela and pe«r water on bin bands*. In the twelfth oontaiy the iiliiiiiiilalii|i of the Abbey of St Kduunda was horr«litary tn ibo ftuntly of Hastings, but was exeonted bj deputy \ On the nbole, bow* ever, the prelates ood barons seem to have followed the policjr nf their n>yal master and scidom pcnnittcd substaotia] pai to Upse into Iho hands of hereditarjr uffioera ; the higli of a UKmastesy. like the high steward of the realm, waa a for pogoants mthrr than for bnstDeM*. StUl iiiob existed. The senice of carrying the toid's letlera woa not «d- common and may have been very useful' ; the serrioe of lookiag after the lord's wood was reckoned a sejjcanty*. In laiiuna parts of England we find a considerable cUss of tenants bavad to go a-riding with their lords or on thair lord's onnuids, and doubtlew, as Broctoa snggvete, wc hare here tbe mrfrtsairtrai and radmaimi of Domesday Book*; oo soow eitalas ihmf m» known as 'esquires,' and their tannrv is a 'mrjmaty of mqtoj^.' Bat again, there may, sa Braetim myu, be warlike serrioa to bo don& A tenant, for example, of the abbot of Himasj ia bound to find borae, sumpter saddle, aoek and fhsNning fim carry the harness of the kuighu bound for the WaUi n" ; tbe prior of St Botolph at OolclMstcr is booad la Ihi
• B.B.U.6M.
• B. a. U. «i.
• J«*rtte of amMoal (OSori. Soe.) ».
■ TU bi(«nplwr ol AMrt SsMOD «l 81 M
■ B. H. a. SM^
* CmtX. Glow. U. IOT-4.
infwwsii fnimt ^minlMtntitm at hi* Imm lhs> h* wwllHj iW aMn of •Dd • Hftir hsodfWb hrtwisii^ Io dw sU«y to Hua lit niMJM *im\ Juaslin, 91.
' 8m t^. K. O. u. lae, Sl»t Onrt. Olsaa Hi. m.
■ M. H. U IM.
« 8m SnaiMi's Msto Beat. pT TB ; Qm. flbaa L Ml, IL m, in. nLlW. TW akkM «t tssii I J hm ndmnrnmi. IfMWiiil ritm. L
«• OHt. QkM. IL MT-* ; ■SlBBlkS.- Ih. UL IMt '
AMslnsk L lUi ris w^iil sn t^mmU kj ite tm^» ml lU sMm of m AftasB tohto
1 8dMl rUM ■ MsMfkl OMfte. L t( «L
CH. I. § 4.] Serjeanty. 287
service by mesne tenure'. Again, the tenant may go to the war in his lord's train to fight, not as a miles but as a serviens; Ranald de Bracy is bound by the service of serjeanty to follow William de Barentin as a servtens at William's cost'.
Now it may be impossible to bring all these very miscella- Esaence of neous tenures under one definition which shall include them, ^'
but exclude knight's service and socage. However, the central notion seems what we may call ' servantship' ; we can not say ' service,' for that word is used to cover eveiy possible return which one man can make to another for the right of enjoying land. Obviously in many cases the tenant by serjeanty not only owes 'service' in this large sense, but is a servant (jKrviens) ; he is steward, marshal, constable, chamberlain, usher, cook, forester, &lconer, dog keeper, messenger, esquire ; he is more or less of a menial servant bound to obey orders within the scope of his employment. Modern efforts to define a ' servant ' may illustrate old difficulties as to the limits of ' serjeanty ' ; it may be hard to draw the line between the duty of habitually looking after the king's bed-chamber and that of providing him with litter when he comes to a particular manor. But the notion of servantship, free servantship, as opposed to any form of serfdom, seems to be the notion which brings the various serjeanties under one class name, and it points to one of the various sources of what in the largest sense of the term wo cJill the feudal system. One of the tributaries which swells the feudal stream is that of menial service ; it meets and mingles with other streams, and in England the intermixture is soon very perfect ; still we can see that serjeanty has come from one quarter, knight's service from another, socage from yet a third, and we may understand how, but for the unifying, g*.*neralizing action of our king's court, a special law of ser- joanty might have grown up, distinct from the ordinary law of laud tenured
1 R. H. i. 157. 3 R. H. ii. 767.
^ In Germany the servienlet or mininteriahs became a. powerful class. A (rroup of ren-ientfg, e.g. those of an abbey, had a court of itsf own and law of its own [hietutrecbt at) contrasted with I.ehnrecht, Hnfrecht, Landrecht), see Waitz, V. 2(iH-:iiiO, 428-442 ; Schroder, D. R. G. CtiT. The nearest approach that Eunland in the thirteenth century can show to such a court of servienteu is the court of the king's honsehold ; but even this aims ratbcr at a common law jurisdiction over all that happens within the verge uf the palace, than at developing a special law for tha king's servietttea. In England as in Ciermany
238
Tmufff.
[«-
As regnrdfl the miliUry Hcrjc«Dti«s m muKt remember that frl in the bugtu^ of tiiilit«xy ftffiura mrmen$ had acqairod a iJictiDct moaning. Ad army ta largely made up of miiiitt aod wnrtmlav, of fully armod boraemuo, and of men who, wbethcr tiMry MTVo CO foot ur on hone, have not the Aill knightly panoply'. Nov when a l«nant by Mrjeanty ia bound to go tu tho wiu- aK a Mrvitna with honH;, purpotnl, iron cap and lanOB, the difTerontM! bctwctm hi* t«nur« and knight't worioe aeeiM W rcMilve tlHcir into a more diflerenoe between one kind uf ■nnoar and another, or *mc- poxitiun in the aimy and another; wad it iel powtiblc that n ct'rtnin ambiguity in the word mi ii wm. which will Htand for mTvant, and will itand for tight armed eDldier. may have attract««J within the vphera of leijeanty eeitain tennree which had about iht^ro nu Rtraug tract* of what irt> have eatted * eervantthip.' Still originally the «frv««nle» of the army were eo called because they wt^re attendant* on the miiUm, whoACi fihitldM they carriod. and whnw owjuurva they w«n fcr Uie eequttv {MHitftr, armiffv) of tfaoM timet wae one who oanried the ehield or arm» of hw lord Thoe by oa* way or nnothnr we oomo back to tho idea of 'nerrantdup' ae ikm core of Mrjt-anty".
Looking back towaide the Norman ConquoHt wu mn oa ruk in eeviag the pfedooiiiim of tbcK tenants by Mijcanty in tike jrmenlaf of Domcaday Book. Near the end of the marr^ ci a ooonty we aometimea meet with a epecae] section demled to c^ i Strwitulm Ayu. Thua in Wiltshire after the Tmra T^iiasraai AyM comee tho Terra Sern«»Uitm JU^' ; it is ao in Ottnsfc- abbe*; in Dcvonahire and Laioesienhire (be 8m piwtei Rtfia
II Ban. L, la vUdi a i» asMnoa la Oad * ■laiBMrio pfttrU mu.' Tlw «ai4 mtgiMftam alia oaaon; «^ Lta: 'mMjiiaBriBw oflMlwHahiai^'ali— JUaiyoflaa; IlAOart.' iniwn nwrUeaMa* «Bfia* soMraa.'
■ Any aottlMaporHy aaeoasl at avfcv* vOl illBri»»li lUi^ MOoool of Uw wv la ltl«*7 IOhqd. lUj. UL «-■), f&rvnntia iitanml i» oaalrflo ariMM ■!
arvMtlM -' ^ I Tifi 11 ITitiw riTrimiilhlwi^li
item» mililM ram Mr*wDtU>aa bdIUm capU MniialM aqoilM tL ptAitm, qui WtW wb hovawioarwl Ihal all ibM* MniMM
" Aa to Ik ^IUu7 t I, M7.
* D. atTik
en, I. 1 4.] Serjeanty, 28&
have a special section,^; in Oxfordshire we find Terra Minis- irorum Regis*, and wben elsewhere we meet with Famuli Reffig* we may suppose that this is but another name for the Sertrierttea and Mimstri. We can tell something of their officew. Among the Wiltshire Set-vientes are three chamberlains {came- rarii), a hoarder (granetarius) and a cross- bowman (arhalista- riits)', elsewhere are an archer, an usher, a goldsmith, a baker, a bedehnmber man ; near the end of the; survey of Hampshire we find a treasurer, two chamberlains, a hunter, a marshal. a physician and a barber holding in chief of the king*. In some cases It is possible to trace the estates of these persons until we find tbem definitely held by serjeanty. Again, there can he little risk in finding the ancestors in law of Bracton's Todhvightes^ and the abbot of Ramsey's ridemanni in the radcfienistres and radmanni of Domesday Book. It ia true that ID the western counties these radchenistres are oecaaionally fonnd in large groups ; there may be even twenty of them on a manor*; but in what was for Bracton the leading case on serjeanty the abbess of Barking asserted that she had full thirty tenants on one nsanor bound to ride about with her wherever she wou]d\ However^the makers of Domesday Book were not concerned to specify the terms on which the ti^nanta, especially the tenants of mesne lords, held their lands ; of ser- jeanties we read little, just as we read little of knightly service. So soon, however, as any attempt is made to classify tenures, the serjeanties appear in a class by themselves. Olanvill, after deBning the relief payable for knights' fees and for socage tenements, adds that as to baronies nothing has been definitely settled, the amount of the relief being at the will and mercy of the king; the same, he says, is true of serjeanties^ In 1198 p. 770] the distinction was enforced by the great fiscal measure of that year ; from the general land tax the aerianteriae were excepted, but they were to be valued and the servientes who held them were to be summoned to meet the king at Westminster to hear and do his bidding*.
» D. B. L 117 b, 236 b. > D. B. i. 160 b.
• D. B. u. 4 b, 98 b, HO b. * D. B. i. 49.
■ Bncton, f. 35 b. * EUU, lutrodaction, i. 72. ' Note Book, pi. 758. Maitland, Domesday Book, 305 ff.
■ Olaavill, ix. 4.
* Boveden, ir. 47. Boand, E. H. B. iii. 501, bos ehown that some of the retnnu made on this oocasion are preaeiTed in the Testa de Nevilla.
P. H. I. 19
290
Tfnun.
c>
11.
Oihur diHtiociioaii appear in ooonM of tinw, Ev«B Bnctoo'a day the amount of ihe retief for a aeijaanty wm iMit' y«t fixod; it waa to be ' rnaaonible ' bot do inotv than lUa ooald be aaid*. In later daya we find it flied at aao yaar^ value o( the laud ; but how ur when thii ilcAnilion wan arrivad ot we do not kiuiw*. That the aerj«anl'» rvlicS rtxnuna oertaiu lung after the relief of barona, km^ta and are fixed ui auoihcr Diet whk'b poinU to the peculiar natnro of the ntUUiuiMhip which hod bet.'n iuvulved in tho loouiv. It waa not the mere ruIaUuti between lord and tenant, or htlw— ti lord and man, but waa nlao tbe pelation betwoen naalcr and aftmnt, and, though a fooffhient bad been nade to Um tiinani and his heirs, the Iaw watt slow to dictate the terow opOA whiek the lord muMt receive tho heir into his acnrioe. Again, we find that a tenemont bald by aageantj ia traated aa iaaliaaaUe and unpartiblo. Aa ragaida alienation we ahall be better abla to apeak heraafter. but will prvmiiw Lhia much, that the kin| ia rigorotttly enfoccing tho rule that hia iwijeaau can not wifthoat bia leave aliunato thuir land, nxvu by way of mbiBleudataoo, at a time whan he is not. or is not iiy>tenwtically, onfuntng lh« same rule againat hia other laaanUk W« hav» sono |>oof thaa ao late ai John'i reign it waa thought that a M^jcan^ ooaU not be partitioned among oobeirenea; the eldeat daiii^hlsi would tjake tho whole*: — this aliio is an intelligible rule if wa have r^ard to tho * mrviential ' chancier of the laami a •eqaaaty must not be ' laoerated'* As to the wwdiUp wad marriage of tenanla by aatjeanty tb«fa waa mnoli djapata^ and in coume of time a lino via diawn betwaM vbat wmu eallad * grand' and what were called 'potty' aijaanrias. Tb matter we must return ; but by maaaa of the rtilaa to which allusion has beiv been mads, taann by eaiiaantv wm kept apart fran tenure by knight'* aarvioe oa Iha eoe hand and teooia bgr aoeaga on the ulhar, aad arta in tb* aiddla of tWd Ihirtiaalh oentury it still had an importanoe which is but fiuatly r«pr»- wnttfd by the well-known sactioos of LitUolMi'a book.
tUa^l
1 Bnoan, t M k
« li Miaki te bt hmamtn la Kiei, T. B. It Ba. IT. t It (Trte. pL H. i ■MM tv Uttbtoo, SM. IM.
• nssll. AMm. F aa (Iflrit 1 ««i«u« p. M (C«iri). Mm at mmnl liMmntUUm iW vital* aT bw AmJ
Mac OU, p. Wrt : Ite
• PladL AMm. p. « (liril):
m. I. § 6.] Socage. ' 291
§ 5, Socage.
Any temire that on the one hand is free and on the other aoc«BL^ ifl not spintual, nor military, nor ^serviential/ is called tenure in free socage: — to this reeult iawyera are gradually coming. Obviously therefore this term socatfB will cover a large field ; it will include various relationships between meUj which. if w© regwd their social or economic or even their purely legal aspects, seem very different from each other. We may louk at a few typical cases.
(a) The service which the tenant owes to his lord may be Tyiwn uf merely nominal : he haa no rent to pay or has to give but a rose every year just by way of showing that the tenure exists. Such & cose may be the effect of one of various causes. It may ori- j^inate in what we should call a family aettlement : a landowner Bometimes provides for a daughter or a younger son by a gift of land, to be held by a nominal service. Or ag^in, the gift may be a reward to some dependant for past servicea. or a retaining fee for services to be rendered hereafter, which sei-vices however are not dttined and are not legally exigible. Or again, there may well have been what in truth was a aale of the land : in retnm for a gross sum a landowner has created a nominal tenure. To have put the purchaser in the vendor's place might have been difficult, perhaps impossible; so the purchaser is made tenant to the vendor at ab insigni6cant rent.
(6) Such cases gradually shade off* into others in which a substantial rent has been reserved. We pass through the very numerous instances in which the lord is to receive yearly some small article of luxury, a sparrowhawk, a pair of gloves, a pair of gilt spurs, a pound of pepper or of incense or of wax, to other cases in which the rent, if we can not call it a ' rack [p. 272] rent,' is 'the best rent that can reasonably be gotten.' We thus enter the sphere of commerce, of rents fixed by supply and demand.
Such tenures as these may be found in every zone of the territorial system. The tenant may be holding of the king in chief; the king has, as we should say, granted perpetual leases at substantial rents of some of his manors, the lessees being sometimes lay barons, sometimes religious houses'. Again,
> TboB e.g. the prior of Barnwell held of the king the ancient demesne manor of Cbeaterton at a rent of £80; B. U- n. 402.
19—9
292
Tenwr.
[WL.
frota tiie Conqaevt onwiird, to my nothing i>f wd mriior %imv, very great mrn have not thonght it beMftth (hilD to bold church Uud» at cwy naU\ It ifl an aooQMtiao oomiDno u> noDUtJa annalfl that the abbota nf the Norman time dtMnpatc^ the lauiU nf their hutuea hy im provident gntitM Ui their Comgu kmsnum or by uking finea uutead of roM-rving adoquato mit& Id inch eaaea thonc tenants in socngo may havn othvr tooanta in Bocagi* below thoto, who will pay thftm heavier mtita. V\U- mau^ly we come to the actual occupant of the eoit, whdM ml will in many cawe rcpreicnt the beet olfcr that his liuJIwJ oonlH obtain for tho land. Orcafiirmally ho may bo payisif^ more for the land than can bo got from the villeina of tbo MMM viUago.
(0) Somotimee we find in charteni of ieoffmeni that the feofbe, beidde« pa.t'ing mnl. ui to do or get done a oortaia omottst of agricultuml InUiur on hie loid** load, eo oioeh ploughing, »o much r<>aping. The fboffine may be a moD of inork, on abbot, a baron, who will have many tenonte uader faim and will nttrvr put hu» hand lo the plough'. Hmm eaara ore *if importance becaaite they eoem to be the obanoel by which thf term fKo$t gradually spreads iteelC
((f) Finally, within a manor thero often ore tmanta boond to pay diven duoa in money and in kind and bound to do er got done a fixed quantity of agricultural aenrioe lor their Xoi&K. Their tenure ia often ngorded «a very old ; oftao they have bo >■ charters which expreB ita terma'. Hornier wm ahatl aae ihoft it \b not always easy tn mark the exact Uoe which afrporolao them from the tenanta in villeinage among whom th^ live ODd along with whom they labour f^ the lord'a profii. Sane of then are known an free mkemen (awbawwo^ toekmmmim) ; b«it this name is not very commoo except on ' the ancient of the crowa Of their position we mnat apeak it con only be dieunwd in eoDoezion with the «nfr«e
■ For mt\j hi»un— ■ m» Bortea Out. Ml, ». TW Omtm «f VDK c ST. •IwTC Uwt Um kiag bM vmutu Is cbM «b» bald ta iii^n. bupfk te Bum.
■ Km 4L^ te Cart. OIom. L Mt ih* d^kMote l*bottt mr<*om *m tmm ito atMorolrniiUii lol^Ttiptoa ruiiinft fTTinliilii iiiifl 1 b UMpMi an« iwtin it (■ iiiiiwiii W flad lb bwl if a «Ma flH •^tpl; m Bomto ol ^D«^«i aa4 nwfmt lb* iki aaiMaaM nf Ui 1
■ TlM* «i OSari Olaar Ikmw U a tnmr af ymawtm ptr tmnmm aol a 1 I at tamwJM ftr wttmi /nftm ratw ; R. B. IL MS.
CH. T. 5 5/
Socage,
293
Now to all appearance the term socage, a term not found in Grwlitsi Normandy, ]ias> been extending itself upwards ; a name appro- ot Uie ttm priate to a class of cultivatiog peasants has begun to include the '°**»'- baron or prelate who hold^ land at a rent but is not burdened with military service. Of such a man it would seem natural to aay that ho holds at a rent (tetiet ad censttm), and for a century and more aflur the Norman Conr|ue8t it is rare to call his tenure socage. He is sometimes said to have feodum censaale't far more commonly he is said to hold ' in fee farm.' Thia term Fm fam" has difficulties of its own, for it appears in many different guises ; a feoffee is to hold in feofirma, in feujitinam, in fedjirtiiam^, in fetido firmavi, in feudo fir nia', ad Jiniiam/eodalem*, hut most commonly, in feodi Jirma. The Old English language had both of the words of which this tenn is compounded, both /uoA (property) and feorvi (rent)*; but so had the language of France^ and in Norman documents the term may be found in various shapes, Jirmam fedium, fettdifinnam.*. But, whatever may be the preci&e history of the phrase, to hold in fee farm means to hold heritably, perpetually, at a rent; the fee, the I] inheritance, is let to farm. This term long stmggles to main- tain its place by the side uf socage ; the victory of the latter is not perfect even in Bractou's day ; the complete merger of fe« farm in socage is perhaps due to a statute of Etlward L, though the way towards this end had long been preparerl*.
As to the word socage, a discussion of it would opeu a scries Meuin^ of uf difficult problems about the administration of justice in the •°***"' days before the Conquest. These have been discussed else- whciv'. We must here notice two points. Bracton believed —
> Burum Cart. 31. 97. > HUt. Abtagd. ii. Gfi, 188, 167.
> Bet;. MBlm. u. 173 ; Rot Obi. p. 13, 68.
* Bot Um Uiur aMnu to bo derived front Low Lfttin, m which firma hu OMW to tDMUi A Axei nui or tribatfl ; Skent, 8. v. /arm.
* Ddialc^ EtudM cor U condition de 1a clai^M ogricole en Nonmuidie, 4S. ' For Ui« co-ordiD«lioa ot let turn and bargagn with locage, we Uagna
C^ta. 1215. c 37 ; ' Hi quia t«neat de DobiB p«r feodiflnntm, r«l p«r toka^am, vd per btirgagi[tni...f>ocuionfl illiaii foodiflnoK, vol aokasu vel bDrgopii.' Also Bncton, f. U b, 86, where ri regard* relief a dialinoUoD ta dravn between eoeice and far tuni. The StAlutc of Ulouooeter (0 Bdw. 1. c. i] >oenu to eoune of tbae to hftvv Rdiorated tlie notion held by Coke that a tent ii not ' a fM fiinn mil' uoleu it amonntB to one-fourth of the annoal value of the land: sec Hal Izwt. 44, Co. Lie US b, and the note in which Hargravo hIiowh Hut odttwr in the Btalale nor in earlier historjr i» Uiore any wai-rant for thU mMetiou of tlut tenn.
> llulluid. UuDaeeday Book. 00 IT.
T^ftre.
[ML^a
«rniieoi»ly no doubt, but «rroo«oiM •^rnology U * tnrea in tkst hUtory of the Iaw— thai m-aige ha<j U> do wilb we, tb« Frandi word for » ploiighithani'
thoraibi*
toxumUi in aooagv MMBtull/ oghculcurMta. Aod tbfl duty of ploogUng tb« loc«fo dwaewo w Uw oeotnl fe*tur« of locagv. lu the woood pUae^ if WB torn lo the tro* dnivntioD, w« oomo to moch llw miim^^ remit; toeage is *t Marting tbo t«oaf« of tKooo takgmam ti^^M whom wo road in Domewlay Book ; 4001^ i> an afaiUact l«nD which d«acribMf thoir oonditioD. Oradually it baa beoa aitandfld and tharefora attenuated uniU it it e^iiUila of eMpnmag mod* but Daffttive oharacteriitica:— oooaga ia a tenure whioh is not spiritual, not militju^', not pervioatiaL No amilar aittOMM* ban been given Uj the word MtamoM ; in ibo thiiiaftfith omUuf many perKitw hold in Mcage who would bo imniltrd w«tc tfaaj oallad aokamw ; for th« aokamnn an a humble, though it muf be a wetl-lo-do chi«'. I tB That they have been a nomeiuo* daat we majr grthar aa uT^niurr from other avideoea ao frcon thin, that wuega b<cnwiei tba
ocie givat Blanding oontrawt to military lanore, and, am tk» tP- oppraMV* iocidanta of nnlitar>- uuun: are develapadl inmn who would fit« his holding from the buideu of and tDorriagf u KniiouN to prove that be bolda ta To gain thij* md he ia (iill willing lo maik eiiHawlial of he will glailly hold by the puuBOt'i tenure when the distinctive niarkii of that taAon anr iauauoitiee' ao no wardship, no m&m«g«*.
Thou free eocagc. whvn that t«fni faai ■ttaioad ita Mi oompaH^ appears ac the givat roaiduary ti-ourp, if wo may a» ■peak; it w non-rnilitary. noo-flerrirntinl non^atinKMiiiary. however, wa go bade to the fint half of ibr twelfth flanlmy begin to doubt whether we eaa vtrtctly iimmI on the eharacteriatio of tbeev negative attribatea. The wmj ie h«l gradually taking ita new ehapo; the eokemeo of the abba%
Irnn*.
' Bwiilifc t Wfci •B«4Mi yB4wUM*kaaM» • avfa, m mA* taMs •MMi k iiHfc^n loifc—iOTi Od prtwiial. m i|w4 iiglill msI ■!
laliiiiiily «i mOumm.* JU to iha Ummj ■! th> OH fmmk. mm Aai, K.V. mthm. AwMiially It aoran ta ttamm^m ^ik. t- f b: •(
* 8m ▼latve'*'* TUkleapi, p. IMk
• la OlwfiL vlL U. •M «««a la fcealwi. t «? K tb» Mm vW
«mi**iv h aklvttliT M lUU Uh fcm^ iIib > Th
•HM* i« WoTUMr dau.
of Peterborough serve along with the knighte*. Isi Edward L's day the tradition amaug: tbe OxforfJahire jurore was that the aoceEtora of many of tbe bishop of Lincoln*s socage tenants were* free sokem^n or ^ quasi sokemen' who served the king in the war for forty days at their own cost with purpoints, lances and iron caps^ It is not in the past that we must look for cleiu- definitions.
Tenure in burgage, if we examine but one specimen of it, BorKagK. may seem to differ in no essential from free socage". The aervioe due from the tenant to his lord is very generally a mere money rent, though there may be a little ploughing or the like to be done. But if we thus isolate a single tenant from his fellows, the spirit of burgage escapes ns. The tenant ia, at least normally, a bnrgcHs, a member of a privileged com- munitj, which already aspires to become a municipal corpora-
■ tion. This is not the place in which to discuss the history of the boroughs, still we ought just to notice that tenure has been an important element in it From a remote time there have been in the greater and older boroughe men who paid rents for their houses but did no other service. Their tenure becomea distinctive of the boroughs, and when in later days a manor ia to become a borough, the abolition of labour services and the introdnction of burgEige tenure is one main feature of the process*. [p.27e] Regutled merely as a tennre, the chief characteristic of Borgage burgage is its subjection to local cufltom. Other free tenures, borouRh socage for example, may be affected by local custom, but *""*""■■ what is exceptional in their case is normal in the case of burgage. The lord has made over to the men of the borough his conrt and the profits of his court ; very frequently a royal charter has conceded that actions for burgage tenements shall not be tried except in the court of the borough; thus local custom has room within which it can grow and is not liable to be set aside in favour of common law. It is chiefly within the domain of private law, it is about such matters as inheritance
■ Chron. Fetrobarg., p. 173, e.g. ' SoabemaDni de AUiatona i. hidam et i. virgAiD et serriaot cam militibns.'
* Bot. Hood. ii. 748-9. These entries are veiy carions : ' set anteoessores das solebant esse liberi qoasi sokemanni et solebant faoere servioiam dom. Bflgi in gaerra,* etc.
* For the burgage of Normandy, see 3omma, p. 98. ' If ore of this in our section on The Borougha.
Temtn^
[»«-'
iini] duwcr, thiil the boruagh cuwloini have thoir my. TW poml tbftt most ooncenu u» here ii tbair toidcary to treat thv burgaip} Uoemeni aa an article of oommorea ; it ii likened to a chalt^ ; not ouly can it bv dinpoMod of by will, but ' it «old Itko A ehattol.' I A man might hold of many different lords hy many diifeivat
^^aty Umorca. This no odo would deny; but nurau of tba rlai'na! expouiiou* of ' the feudal »yit«u * and ' the manorial ayilcu ' are apt to make the texture of medieval aoeiety look nnplar than iviUly it waa, and we think it part of our duty to iaael that tb« facta which thu lawyon of the ihirtcvnth century had to bring within their tbeoriea wen oooiplinatod, TharaftHW lot un fix <itir eye* on one man. Sir Robert de Agnilon, aod ■•• what ho hold ou ihu day of bin dtuth in 1280. He held UaiAi at Qreatham in Hamp>hin> of tlir king at a rt'ut of 18a.; be hold Undfi at Hixt in KeuL of thi- abUii of Kcwltng at a mcai|y rent ; he held loiidii at Croflon in Buck inghuniMh ire of Williaa* J^t do Say by some •enrice that the jurors did not know ; be held a manor in Norfolk of the biahop of Norwich by the Mrriea of m mxth jiort uf u knight's fve aod by ca*tlu-gttanl ; be boJd a manor in Sussex of the earl of Wareone bjr the eefrioe one knight; be held a manor in Hertlbidahire of the in chief by the aerjeaa^ of finding a foot-aoklier for daya ; be held tenetneuia in Luudou of the king in Aial I9 aooage aod could bequeath them aa cbaltele'. 80 w« mMl no* think that each man fills but u<u» place in the Wfal eliiirtw feudaliauL lb a romolo paftt thin may have been w; ImI is not M in the age that defioee the varKMu teminib etUR^ the man who hoMs of the king in ehief will bold of othiT lords ; hu will hold by knight's aerrioa, by in fm bnot in eooage and m buigaga.
§ 6. Homage awl Feaity,
Til — J Very generally the mare bond of tnore is fiomplimted willi
•^tmity naihvt bond, that of boiiMge aod fealty; the Icmm mUht baa done hoasi^ aod awora faalty, or ia boili eolMad and oonpeUable to parlbnn tbase innMiriniM Tlw right aad tlw duty go togeUftor; in one partioolar oaae it nay be tha Imd,
m another it may be the teuaat, who will desire that tbeae solemnities ehould be observed, for each of them may thereby gain »i:]inethictg.
Whtrn we read what the law-books say of these mattera^ we Lt'e»i »"'' feel tbat they are aealing with institutions, the reai importance effects ..r of which lies but partly within the field of law. The law of ^*^"*^' homage a3 administered, or even as tolerated, by the king's court of the thirteenth century is but a pals reflection of moral aentimeuta which still are strong but have been stronger. GiaQvill and Bractou eeein to lower their voices to a religious whisper when they speak of homage ; it is in this context that GlaoviU introducefl a word very rare in English legat documents, the antique word vaasallusK The ceremony of homage is as solemn aa ceremony cjan be. But when we ask for the eflfecte of homagej we get on the one hand aome rules of private law p.^^!] about warranty and so forthj rules which may seem to us of no great miportauce, and on the other hand some vague though impressive hints that iLese legal rules expresij but a smaJE part of what is, or has been, the truth.
The ceremony of bomas'e (in some of the older books Aomi- Tljaotra- rnutti, hi>ntinalio', but u&ualLy iwmugium) is much the same iiomflee. all Europe over". According to Bracton, the tenant puts hia bands between the hands of the lord — this symbolical subjec- tion seems from the first to have been the very essence of the transaction * — and says : ' I become your man of the tenement that I hold of you, and faith to you will bear of life and member and earthly worship [or, as some say, of body and chattels and earthly worship], and feith to you shall bear against all folk [jsome add, who can live and die], saving the faith that I owe to our lord the king.'" Britton adds that the lord shall then kiss his tenant*; Littleton adds that the lord sits, while the tenant kneels on both knees, uogirt and with his head uncovered; and these we may accept as ancient traits'.
1 Glaovill, ix. 1 ; for the nee of this word before the CooqaeBt, see Maitland,
Domeftday Book, 293.
' D. B. i. 226 b : ' Q. Episobpoi clamat bominationem eorani.'
= Waitz, D. V. Q. Ti. 46; SohrSder, D. R. G. S91; WarnkSnig, PranzaaiBche
BechtBgeBohichte, ii. 857.
• Waitz, D. V. G. vi. 47.
» BractOD, f. 80. CL GlaDvill, ix. 1 ; Statutes of tbe Realm, i. 227.
• Britton, ii. 87.
' Littleton, sec. 85. Compare tbe details from French books in Wamkonig, ii. S58. The man mast be withoat anna, or spars, or mantle.
S98
Tmure.
[bx. n.
j^ — - rapiflotioiL ( 3b2to K ^'^^^"^ ^ *done,' foaltf is 'mrorn.* «nd it if wortliy Vi.^_^^M*ervatir>n thiit tbo onth ia eonociTQd w !«■ •i>lcmn ihan t
BTOryth
b«lpl«B to tbo lonl Aod hw b«en raocWed iuta the IorI*
or
the liymbolic tct ftad cso be exacted io many cmm io which. bonmg« is not eligible. The tenant now ■taadi Qp with hia ^Huxl 00 the gofl^ls and ■aya: ' Hear this my lord : 1 will baar fiuth to yon of life and nteraber. Kooda, chattel* and cartk^ vorahip, au holp me Ood and theae holy g«apela of Qod ' ; add an eirprev promiK io do the aerrico due for tha meat', ftucton doea not hete meniinn a»r "amg clanaa fcr (he faith due to the king ; but doubtlaia this waa addad*. IW oath of fcalty thuK uinita the wofdfl ' I beoome yamt naM,' » mgnificiuit omianon. Fealty, of courao, in the Ijttin fiddittt»\ but it in iiiloroating to Dodee that oo nuDorial mUa by clerks who were no gnat Latiniata, the iwfd fndsliiaM or feodUoM, ao oloae ia the eonnaxjan and fee.
The fonnit that hare bare ba«i givao an thuoe d haga homage and of fealty aworn Co a liege lord. The ward la^v aoems tu mean simple, nnoanditiuiial, though very hhely at * quite early time a fiUae derivation fium the l^Uin fiya (b* hind) began to obttcure thia> The man who haa b«k urn doM uiic4indiliuued homaga If now bo aeqnina a feo uu>thf!r Initl, h'w honiagi; muat be conditiooed, be muat faith that U^ owm ti hia ftrat Imd*. If tananauti faaU af aaveral lorda deaoraid to one heir, hia Unga aithar to the fetd from wbom be daima Ua priaaipal placa auim rmimt 0$ Ugma «i(*— or Io thai loni wha
I
t^i
> 8m*». t BOL • <uatti4ii. it, 1 1 mhm. ft. m. aa
■ Bm 8Im»1, I>isL ».T. Htft: TktlUt. [lutntn Am 4nit d«fl liMrtii, lUrtoir* do dnit bmiK«ka, IW, mhtrm \mtatmtiat fMi ban Ik* «M«ii« Damado*. wfatak ikow ikai akmAj to «m liiL IWn ^ MBM nenawdrty ateu th* tefMt ot ikto wmi. !■ *« «M melhm mmtmi tn wMili 1^ wwi «m 11 11 ilj' mmK vta. to aU k> haw a^U * ^ ta M#f« fa«Mi»K. i.<. b* vw nw In Nil. poMr;Ud«plKaM«nlTUlaB«Btak*lii tkafDiaUtffvfaMabi U te< la BfMlaa*! Koto BMk. <^ |4. tU. hot !• e|a to i^p■■■llll iato to
• IMMoo, IL «T, aa. 8to««tM of tki Umamt, L BT. A* «i a ItMl Ml flbM I
OH. 1. 1 6.] Homrige and Fealty. 299
the oldest of those feoflFtnents under which he claims^ The person to whom Uege homage is done is by no means necea* sarily the king; but the king has been insisting with ever greater success tbal there ia a direct bond between him aad every one of his siibjecttj; the growth of nrttii>nal feeling has favoured this claims Not only has he insisted that in every expretwion of homage or fealty Uy another thero shall be a saving for the faith that m due to him', but he has insisted 9?ais\ that every male of the age of twelve years shall take an onth of fealty to him and his heirs, an oath ' to bear faith and loyalty of life and limb, of body and chattels and of earthly honour,' AQ oath which of course niakea no reference to any tenement, &n oath which promises a fealty ao unconditioned that it becomes known an the oath of ligeance or allegiance {ligeajttiay. Williaui the Conqueror, it woiild aeem, had exacted, not only an (^th of fealty, but an act of homage from all the coneider- able tenanta of his kingdom, no mattt^r whose men thoy were, for Mi we may fairly cont^true the words of the chronicler, 'they bowed themselves and wei-e this man's men '^ ; later kings as well Wf earlier had exacted the oath of fealtj'^ from their subjects ID general. But this ia a strong testimony to the force of vassaliam. It suggest'* that an oath ia necessary in order to constitute the relation between ruler and subject ; it suggests that the mere omission of a saving clause might make it a man's duty to follow his lord even against the king ; it makes
' Bnoton, f. 79 b : ' feoflator primos propter primmn feoffamentam.'
* Boand. Andent Charters, p. 8: Henry I. givee the lordship over oertain tenants and «xiacsws bis will that all of them shall do liege homage to the donee 'in mea ealra fldelitate.* Thus the general duty to be faithfol to the king doei not prerent homage to another being liege. Hadoz, Formnlare, Mo. 398 : William Bloet enfeoffs a tenant ' pro sno homagio et ligeantia, salva fide Begis.*
■ See the proceedings against the bishop of Exeter, Co. Lit. 66 a. As to the similar measore of the Emperor Frederick L, see Waltz, D. T. O. vi. 46. The kings of the French after a struggle had for a while abandoned the attempt to insist on the insertiQQ of these saving claases; Loohaire, Institations monar- chiqnes, ii. 27. See also Somma, pp. 89, 94.
* Britton, i. 18S; Fleta, 114. See Hale, P. C. i. 62-76. The idea that allegianoe (ligeantia, ligeaunee) is dne onlj to the king slowly gains groond. The same process went on in France ; ' the progress of monarchical power gave rise to the principle that liege homage can be done only to the Bovereign'; Girand, Bibl. de I'Eoole des chartes, 9^r. m., vol. iii. p. 4.
■ ChroD. Sax. ann. 1086 ; Florence, ii. 19, speaks only of an oath of fealty ; bnt we are hardly in a position to contradict the Peterborough chronicler.
800
Tenure.
pBL n.
IX^ii.
tbe reUtiun between king and sulgoct took tik« • incM oopgr «f th*> relation between lord and vuhlL This wo gad aaa oi we look back to the fint iinyn of incipient frudAliiro: ' AU swear in the namo of thi* Lnnl (*.<a}iy to King Edmaod man ought to be butbTul to hi« lord " ; the obltgatiuo of man lo lord is bettor known. uor» stroogljr felt, than the obli^jttuai of mibject to king. At the aoooMdoo of Edwanl I. tho dugv ■Mini {HUft, at ItHUt for a while ; ihv fuudal fucve Moiui Is haw woU-nigh apoot itaclf; but ubviouAl^r homage and fenlty . Ui|fB homage aDd Hoge fealty, have meant a groat deaL
In the L^gm ffmrioi we may find tho higb-watcr-iiiAric of Engliflh vaBtalism. Evei^ man owoa faith to faia bud uf li and limb and earthly wunhip, and muat obaerve hia lunl' command in nJl tbnt in houoarable and pfoper. aaTing the dae to God and the ruler of the laud ; but thefl, tTBaaon, murdef) or anything that is agaiznt Ood and the catholie faith, things are to bo oonunanded to none, and doov bjr Saving those, bowevor. bitb muMt be kept to limK ospeciaily to a liege lord, and without hi* cunaent one nay hat« no other lord*. If the lord taken away his man • land or dvaarlp him in mortiil |>cnl, he rorfcits his loirUhip ; but the man mial bo long suffering, he mast bear with hi« lonlV mallrvatmeiit of him for thirty duys in war, for year and day in peace*. Bthj ooe may aid his lord when attacked and obey him io ftll thi^yi biwful ; and so too the loni is bound lo help his man with and counsel in all things, and may bu hu warrant — al UmA certain cason — if he attacks or molests another*. To kill <iw'i lord is compared to bUspheniy against the Holy Qhost ; it is a siroe to bo ptmished by a death omsl oough to mmm A fil baginning for the torments of hell*. 11^ aa the olhir hand. Iha ktfd sbys his man who has done no vroi^ the ofleiwe «■& be paid for with money*.
I Law* or BAeeeJ. in- f L
• U*. Bm. U. I S. mmt^Um
• IUd.tt.l8.
• IUd.«l,l»^ Ia«lwlas«
tb« mteat Ii«M fcr d ■■ tlw lurlcu) vanBJit
«.»: U ft Und Ulb Mi Ma Im •hall k« pwiUMd I7 teak I if* ioH W ahaD W Amva saA hisgad, ■■!■■■ u ha ky a^tmhmaammt t litj ■iMliirtsiiliiifcslfcuiMiihil III iiiiili
CH. I. § 6.] Homage and Fealty.
301
Bmcton defines homage thiiR : — Homage U a bnnH of law Snetoo on {vinctiium Vum) by which one is hotdctt and bound to wairaDt, """*'■ defend and acqait the teoant in hin seisin against all men, in return for a certain service (per cerium servitium) named and eaqpiressed in the gift, and vice versa whereby the tenant in * really ' booud (re obligatur) to keep faith to his lord and do the due aerrice ; and such is the connexion by homage between lord and tenant that the lord owes as much to the tenant as the tenant to the lord, save only reverence'. Such a definition tend.^ to bring the whole matter within the legitimate province of the law of contmct: there la a bargain about a tenement; the lessee is to do certain services, the lessor is to warrant the title. Warranty \% still an important matter, and the doing and receipt of homage still have imp<»rtant results in the law about vuraoty; but even here the courts are beginning to neglect hanuge and to lay stress merely on the relation which exiata, whether homage ho!* ur has not been done, between a feoffor and his feoffee. And, as Bracton here hiuta. the feoffee's obligation to perform the services* is beginning to be conceived rather as tiie outcome of a ' real ' contract than as an outcome of the a-t of homage. To this point we may return hereafter, since it lies within the domain of private law. What had been the public, the poHtinal or anti-political, force of homage may be»t be seen by comparing passagea in the text-books which deal with the problems which may arise when a man holds different tenement* of different lords and those lords quarrel.
Such problems were possible even at the beginning of the Hutnifce twelnh century, for a man might hold land of divers lords'. ^. Glanvill, though he distinctly anys that the tenant may have to fight against his lord at the king's command, says also that if a man hiw done divers homages for his divers fees to divers lords who • infest ' each other, and if his chief lord orders him to go in his proper person against another of his lords, he must obey the command, 'saving the senice to that other lord from the fee that i» held of him*.' This can hardly be read otherwise than a statement that private warfare may conceivably be lawful.
* BncUin. r. 7Rb. This is besed on Olannll, ii. 4. ' Lev Hen. 43, $6: 'QuoleQoqDedorninosaliquisbiUieiU, vel quftntomcanqaa
A* »liii Uuct, «i niHgis obaoxioi nt, et eiof rMUaiu ant dobot, outtu li^^iu* e*t.' Ct Sfi. g S ; 83. i ft.
• GUovill. U. 1.
JL
302
rciMrtv.
[lUL U.
Brurion doaliag with ft like out luai uior« ambiguotM vonli; U tBxaiUm mme b«t«et'n hin ilifTviRiot loida, tb« UoiadI mmt m fan proper pem» lUuid wiili hiiu {tttMi wm w) lo wbocn ha hm dooa ligvADoe, whil« he most sUuxi wiih bis otb«r lofds bj •Monioj*. TbiTu in a great difleronoe bdiwMn Bnictao** Harm aitm and GUuivtll'd trv contra, fineton'a wordu mmy b« Mtiafial t>y suppotdng k ttmiDt bouDd to do miit fco ihe ooart« of two IohIm who have quomdled ; be mujit go in pcrmm to feho am oourtt by atUiniujr to tho other. In Britton'A book, bowever, or ■fc tout in Auiuu mnnujocripta ihurvof, it is writtvn that Um' tODMit nuky huvv W m^rw our lord 'iguiuit tb« otb«r**; Mid w«^ MXv hanlly i?ntiLK^) to mij- thnl tht« dootjioe» of«a H » ^pl tloctnuL', WAN of nu form. It is prubabU that OViD tho Ub^ oourta would haro bold that tho man wu juatiflad, or at Iom4 exciiMd. in dolBodiii^ hU lord and hw lord's pnpertjr ayiiim hostiki attacks, and saeb doltiioe might uasiljr booonw dofaaava warfare. Tho great com wbieb provca that Edward I. had iba will and the power t<i put d<rwn prtvatt* war with a heavy band. ovtin when li was leviod betwoea the must powtnrftil men of his realm, the oaao in which he Mot an eart of QloooaHar and aa earl of Hereibrd to |wiaoa, prnvm ako tbat in the vym of cea* t^mpnrarica the fhll onnrmity of thtiir offmoe was fnaod in having giiuc oD with th*< war contrary toarujal pnjhibitKMi, i that the Diurality of tbu time would hanlly autfur aaj pgniAmmt to bo inflicted opon tbeoo of Umk nan wbo had followod tbetr baa&en in ignonnee of iho kin^'a Qmh penooa. if guiHjr of bomietde. robbery, anon or the Uke^J might doubtloas bv dealt with aa oomiDOO eruninab; bvl Cor mere bet that they bad gone out with banner iliii|ilajMt, it' wooU be ban) Ui bring to boar upm them that favcogatiw procedure* which was sot in motion in order to dtsobfilirnt rarla. At any rata, privatu war was an which might be eoormotisly oxifgomted by brsneh of a pnhibitioa*
> |l»«taa.(TVb; nMa,p. m.
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la HMi MML «f Uw wwnk bw* priaM vtlMa IvwLifeB U i
• Hot. PwL L TO-n. Ha mfHitUf ^ H. Bai t49»t4 •« l«rt vi ft Uii« «be k m ttraoc Owl ba laa W tmnUai. <M«<*, tv. Ml. te m tf Will
CH. I. § 6.] Hostage and Fealty. 303
Thfl same feeling may bo seea in auotber quarter. That a Sanctity oi lord shouM make an attack on his man, or a noan on his lord, ""°^'' even under the forms of law, ia acarcely fco be tolerated. If the aian will bring an appeal, a criminal charge, against hifl lord, he mnst first 'waive the tenementV When a king ia going to fl declare war upon Kis barons be fii-st defies them, for there should be no attack while there is a£Qance. Heury UL in 1233 defied the Marshal, who then waa no longur his man, but • outdde his hoinag-e'- ; before the battle of Lowea he defied the earl» of Leicester and CJloucester^ who thereupon renounced homage and feaHy*. We can hai'dly say that all thia liea outside the sphere of law, for rebellions and wars are conducted on quasi-legal principles : that is a characteristic of the time. Bracton fully admits that a. man who holds laud both in England and in France may be bound to aid both kings when they make war on each other; his liege lord he mtiBt iserve in person, but none the leas he must discharge the service due to his other lord *.
But the most curious limitation to the force of vassall^m HniimiiP will be found in the fact that a man can hardly 'go against' ' * any one at hia lord's command without being guilty of the distinctively feudal crime, without being guilty of ' felony.' Common law, royal and national law, has, as it were, occupied the very citadel of feudalism. Whatever may be the etymology of fdony (and of this we shall speak hereafter), there can be no doubt that the word came to us &om France, and that in France and elsewhere it covered only the specifically feudal crimes, those crimes which were breaches of the feudal nexus
tJnder Henij I., Ito of OraQdmesnil ' gaerram in Anglia ooepent et ▼ioinonun mrs Baoram inoendio oombnaserat, quod in iUa regione crimen eat inasitatom, nee Bin« gnvi oltione fit expiatam.' The ordinary English oriminal law is sbong enoagh to sappress anything that we oonld fairly call private war ; jost for this reason it is needless for Qlanvill to say with his Nornuui oontemporaiy, ' MdUqs hominnm aadeat Tersns alium gaerram biaere'; Trte ancden ooatnmier (Tardif), e. 31. He can even indulge in a specolation as to the vassal's daty of following one of his lords against another, for this mnst be read snbjeot to the roles of criminal law which forbid homicide and the like. In France there arose a jnrispmdence of private war, for which see Viollet, ^tablissements, i. 180; Esmein, Histoire dn droit fran^ais, 263. 1 Braetou, f. 81 b, 141.
* Mat. Par. Chron. Maj. iii. 249, 256.
■ Chron. T. Wykes, 149. Other chroniclers notice thia incident as im- portant.
* Bracton, f. 427 b.
304
Tenure,
[bk. XL
and which wmild wnrk a fuH<E!iiure or escheat of the fiiiC or. u tho caae might be. of tbo lordship : fur the lurd nti^ht be giiHtir of felony againiit hix mnn juitl wi tht* man might bn guiltv of felotiy ■gkinat hi« lunl. A mere oomnoo eriia«^ haiir«Mr wicktd and \vuu\ mcrp wilful homiddr. or ihrft. i* not a fflooy ; thorr muKt Iw iu>mo btvAch of that fiiith and tnut which oaj^t to oiiMt between liird and man. Now it would aum that for a while the word waa uaod htn « well ai ebcwherv in tUi ruBtrictod aonae ; in the Legui Uonhci fdoma ia ofto ■mnag^ many mm«s'. A little Intor tt Hwamw to ooror •vciy crime of any eonindemble gmvity. and awina to have no rufiveoao whatever t^ tbo feudii bond. NKve in one raipMi, namriy. tWft the felon'N land eMb«iit« to hix lonl ; nay. a eluu]g« ofyWoiM hM beootne an indisponaable part of every chargv of crtrf ari]n« that iH to ba pmiiabad faj da«th or mutilation'. Tlw detaibi of thia pnxoaa atv obacm*. Foanbly the lord* mm no barm in a change which brought them abundant mdiaata; bal nn attack bad been made Qpoo mMlinn st ita Tciy eonlraL Tu bt> true lu yuur lord when thara waa any real attain oa lb* feudal bond, to go out with him when be * went agaiaat * aome one elae, wonU end, like enongb, in your flndiDg that yon had committed a felony. Thia of eootie ta no saperftdal change ia the uaa of wordii ; it Umn witneM to a daep ehange in thooghft and feeling. Ail the hatred and contempt which are bellied the word ftion are enliated againai the cnminal. mnrdwwr. robber. thioC without reference to any breach uf the bond of homage and fealty.
Wr inn find tncca of an oMer way of ibmkim go brte an \tVo William Blunt brought an action againat Roger OemMi demanding homage, ri'livf and Kutago ; Roger denied *'*Hai|f of the demandant and aMottfld that ba bald of William Briwm ; the demandant replied * with weidi cf fclony '—wickedly aad in felony had Rugvr denied hia service and dcaw to another'. Such a oac of the l«rm fi/Uma may ba«r belated. atiU felony in ita oftore modaiv aenaa i» not tbe only oanaa Ibr an eaebent Otannll apanks briefly:— tha iniaal wiQ break the bond of boouge if he doo* anything t(*at BM>y torn to the diaberiaoo of hia lord or the du^ran irf k* loed'a
■ S4««.BM.«a,|7; Mvfl; U.I4. ■84MtnMWib«rro«»,pL«?:Biwl«,t ULlMlte
■ Sato BMk. |d. latT.
cm. I, § 6.] Homoffp and Fealty.
305
peraoD^ Bracton's phrase is 'anything that may turn to * the disherison of the lord or any other atrocious injury.' We can not prove from decided cases thnt any delict falling short of a * felony ' in the modem Hense of that term, and unconnected with the tenure of the land, would have been regarded by the king's courts of the thirteenth centurj' as a cause of escheat; bub it would be ra^h to deny that the tenant might lose the land by reviling bin lord, particularly if the lord kept a court and the tenant were duly forjudged the land by his peers ; and Bractou distinctly says that any violent laying of hands upon the lord will cause a loss of the tenement*. As to the dealingn vnth the tenement which might work a dishe- riBon, lord or tenant might well lose his rights in thu laud by disavowing the tenure. In Bracton'a day this principle was being degraded into a mere rule of property law, one of the complicated mass of rules about warrauty and so forth ; but we have just seen how in 1225 such a disavowal was still spoken of M a felony*.
In other quartcra we may see that homage has been losing ECoaiaf*, its meaning. It has been C4>nnected with military tenure. «i^uia According to BracCon, it is due if the tenement is held by"**"*^' knight's service, even though but one half-penny of scutage be payable ; it is due also if the tenure is a serjeanty, at all events tf the serjeanty be one that concerns the king; but it is not due from i^nafiU in socage, though as a matter of fact they flometimcts do it ; if the tenure were villeinage, it would be
I dangerous to take the tenant's homage, as this might imply an enfranchisement*. Glauvill gives us an important clue when he says that a woman can not do, though she may receive homage'; in firacton's day tbijs is otherwise, a woman may well
* BnutOD, f. 81 b. Compare (ilanriU, ix. 1, wbo Beaoji to demaod an lotcat lo do ijrwToaR barm. Tba lord's power to proceed ui hia ovu oomt BgaioBt the IfOMil IP ruU; admittwd by OUnrill.
> BrmcU'U, f. SI b, givm a preoeduit of a writ of eacbeat grotindecl on a BtalietMia iliMvowal by tho Umant of the lord's title. The printed BegiBtnun !•«• (. l$i-5) doM Dot coDtaiu any laeh writ, wbenoe we may infer that it went oat of OM tooD after Braoton't day.
* Bracton. L 77 b. 7a. 79 h.
* Ulaavill. (X. 1, S.
P. M. t. 20
I Olaov. ix. 1: 'Bt ^nerolitcr nihil de iurtt tamro potorit qaifl aaln (tdv ii quod Tertat ad exberedationent domini nai vcl Ad dedccas oorpori*
Tenure,
do honugo'. Hoouigie bu implwd a willingiifln to fight if nmd ht, aod evoB wlum it hail boeom« admitlcd thnt woittsn migbt bold militan* fieCii — here in Enf^Und thi^y wt'tD. aa will b« rotnarkix] hcnAflvr, to haw hi'lil Mich ficfit from iho CowjaeA OKwardfr— thej eould not my the wofd* which tmpartcd aa obligation to nak liCv itaelf in th^ loid'a Mrviee*. But all wu puatng away, and, doMpite what HnuAatk aiji, it baTO be«ii «oranoo for th« Mcagf tenant to do htimafo <kiHfa The eoDlract was not one-akkd. Tb« lord waa boond dttfiiod asd wamuit hit gift When wq Iwar of ' wmnaoty.* w<» an wont to think of a nwro institute of privato Uw roaunott noogh at the present day, the obb'gntion nf a wllcr to coa- pomte a buyt^ who i» wictod by nupehor titW, aad ihm aoT«oaati fcr titir I'xpnwacd ur implii<d in onr moflprn puroha— daadt appear a* the repreaentativw of th« andrnt wafraaty. Bnt th<^ primary oblif^tion of tlw warrantor in oM tim«a waa not thttt of iiiukitig ciimpenaation. Bin obltgatifln lo give baa tenant a Icnemenl equal in value to that whence ha bad baen ^<cl»d wan bat a aeooadaiy obligatioa ariaqg open tb* biMcii of the pricuu^ obligation, namely, the dntjr ef defindis^ tk* tenant in bia poMMamim 'agaimt all men wtwi ean lire and die.' If the tenant was attacked by prooea* of bw. b* voocfaed bja hinl, ho called upno hie lord to daleod the aetioo. and the tof4 if ho did Win duty defimded it. Now beta we eee a gnat Ihtne at w(«fc. Do what we niey to make all men eqnal belbre the law. R rich ronn hu and must nlwaya ba*e advaatagee in Utifa tion ; h« con ootnmand the best adviee, the beel advoeMey. BM in the miJdU ^ee the advaolaget of the rich and powarfal must have b««o eoonnowk Happy then waa the teiMBft vhe ooald «y to any advene claimant : — ' Soc me if yoa wiB, kat remember that behind me you will find the eari or the abbe^' Such on answer would nflvn be 6naL We moM this if we are to undervtand the history of Tbi' owner of land who gives it tip to a givat man and tafcee ii
I
Bnetao. r. nb. 1 4.
' Is sAw 4sj«. irMiihn I* UlitliM, 1 97, vba •■ taiiSi. aha to u> My ' I 4t» Is 7«a tnwi^.' Ml • J«» dfltes fMbv I Bst ia tb* i^j* ftf Mai WMltw llMf» wwM lia«« iMS ma Mk wl lb loniiki ih*tB«(lM ■osM Wo b— — lu ' Jiw enlwf w<w Iw^a^ '
■ TU» MHM to haw Iwn m cna Is Ite imMk
<m. I. 5 7.] Helief and Primer Seisin. 307
bnck to hold by rent and services receives a ' valuable conaide- mtion * for the surrender and submission. This is so even withia the sphere of law and litigation ; he has made his hold upon the land secure, for lie has at his back a warrantor whom no one will rashly sue. We must add that he has a lord who may nse cHmal weapons, or let loose the thunders of the church in defence of hia tenant'.
§ 7. Relief and Primer Seisin.
Ij The lord's rights can not be summed up by saying that he Tlic iu- 15 entitled to service of one kind or another (rom his tenant, t*uti'«! '^ Blackstone in a well-known passage enumerates 'seven fruits and consequences inseparably incident to the tenure in chivalry, viz. aids, relief, primer sci&in, wardship, marriage, fines for aHenatioii and escheat\'' Of all of these we must speak, but we !»hall speak of them in a somewhat different order, and in the course of our discussion we must point out how far they were peculiar to military tentire.
In the thirteenth century the rights of a person who holds HeritniOe lantl lire usually heritable-, when he dies the land will de- lanii. scend to his heir. We must not here discuss the canons of inheritance; it will be sufficient if we notice a few salient points. In the first place, the ' heir' of English law is an essentially different person from the Roman ' heres' : — he never claims under a will. With few exceptions, the broad rule holds good that no one can give rights in land by his will, and even in th<»e cases in which such rights are thus given the person who gets them does not get them as 'heir.' Only God, says Glanvill, can make an heir, not man*. A distinction between land and movables is thus established ; even when the dead man has not bequeathed his movables, the heir as such has no claim to them. In the second place, one main rule of the law of inheritance is the primogenitary rule : — among males of equal degree only the eldest inherits. This rule has been
' Bound, Ancient Ciharters, p. 69 ; Geoffrey Trussel gives an sdvowson to a priory and adds ' and if any dispute arise about that church or the possession thereof, I will oome to the aid of the monks to deraign what the church ought to hold, wheresoever it ma; be needful, to the beat of my power, at their oost and Qpon a horse of theirs if I have not got my own.'
> Comment, ii. 63. ^ Olanvill, vii. I.
20—2
/
m
'Wiwrf.
[bk. n.
gmdually eitending itaelf; oooe apfiropriatc to Um milil t4uiun», it » booDcning the eoauDOn law fur aII. Women inhoril ovon though the tMiQre bo miliCAry ; ihcy iu« poaW poaed to males of oqoal degm ; iwvunJ wumt-n of tn^ual d«p«* will shiiro tho inheritjuice between them, will bo doheini— ^ oohende*. Uualy, though lh«; ngbt« of a bunaol of IaikI urn uifuftlly heritable, thia ia not alw&jrv tho caM ; A may give laad to B moTvly for his (/Tn) life; on the d«ath of thin lettaai for life ibero will bo nothing for his heir ; the laud will ' reUiffi' or'iwert' to d. But moru, to toakv the right* of ibedosM heriublu right*, th(* givor most use words which dmIm Uua l^i pUiti ; if hu murcly gives thi! bind ' to B,' tht-n B m only a tcUttDt for lift' ; he must give it ' to i) aod hu hein*.*
But the heir, whom wo will suppoae to be of full age. dooa not come to hifl inherit&noe withuut haviitg to pay for it ; he has tu pay lo his lurd — and this is what oonooms as bete » relief (refen'um, or in earlier dooomeata rdmaiio «r nliVBiMiik In Glnnriirii day the relief br a knigbt's fee is fixed at 100a ; for eooagf land it is one year's rent; as to bttraim M^oantiiw. thiTo i* no nettled ntln ; the heir most make boKt bargain that he can*. The Dialogue on the Excheqi LcIIh us that the rvUef for the knight's fe>* is IOOsl; tho barony is in the king's diacretioa*. Exeeanve ndicii ebood foremost omongxt ihc griewioee ftlleged by the faanae in 1215; they ookod that the heir should hare his inheritaaoa by 'the Aocieat n:liuf.* which relief wua to bo doited by the charter. And by the charter of 1215 it was deAned; the heir of an oarl'a barmy was to pay £100. tbo hair uf a baron's barooy £100, the beir to a knight's fee 100a.' Thw was repeatod in the chartere of 1S16. 1SI7 and 1SS5; birt aA aoBM tune or aooiher ibe tvUof for a banm's barony «■« rvdoood by <>ne-thini namely, from £100 t*i lOO mafko, amd thorn the noliuii that a ban*ny conaista of 13| knighta' fesn was engondervd. Tho cbangv, bowrrer and whenever it waa
> Mm Bssh. |L 9H. IMl UIL to lbs teln« «r M« ■ to & ani Ml kite * U sAm a ilA 'te
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• la tm Ml tfc* imih of llofffa lUUM km bafe «w
tkkn^f tmti §hmmvA» hownr Qtm ntkd «e»
lanavi BMSnteaBoL na.LiM,tU.
CH. I. § 7.] Relief and Primer Seisin,
309
introduced, was Banctioned by the charter of Edsvanl L' Bmcton states Iht^ law as to earldoms, baronieR nnd knights' fees in its final form ; the relief for scrjeaats is still in the discretion of the lonlfl*. Aa Ui socage, he seenu to doubt whether anything that can projicrly be called a relief is pa\'able; for the lord has no wardship of the eokeman's heir, and in general relief and wardship are connected rights. However, the heir has to malto a certain payment (quaednm praestatio), namely, 'J»Oj an additional year's rent. Thou as to fee farm, Bractun says that no fixed nile has been establiMhed ; but a rcaitouable payment should be made, regard being had to the need^ of the lord and the means of the tenant*. In Normandy the relief iteems U> have had much the same history. In the oldest statement of Normau law the reliufs of counts, barons and knights arc mentioned but their amount is not deftncd, while U'npmenta that are not held by military service arc rated at 5 ahiilings for the capital messuage and 12 pence per acre for the land'. A little later we read that baronies pay £100 and knights' fees £15'. As in England, so in Normandy a relief was payable by every heir, even though he were the direct descendant of the dead tenant. This is noteworthy, for, accord- to a very common French custom, a relief was only exigible n the land descende*! t<i a collateral heir ; but in France, as in England, we often find that one year's rent, or one year's profit, of the land, is deemed the due relief*.
' Sd« Ujv tecMuniles of Uie ru-ioaa cbarMn in Slat, of the Reahn, vol. 1. ; and Btaiaol, Chartca dei Ub«rt6ii, pp. sxxi. 47. > BractDO, f. 84 b.
' Bneton, f. B5 b. Mi. la (bU paasaes Fm (arm in treated as dutioot from •ocKfa ; by 'looage ' Br&oion Beana tMra to meaa the tenure of the Boliemen. 8«c aboTe p. 3M. Urittoo, ii. SO, agrvM that a relief in only doo when the Icnnrv m knighl'a wrvice or grand Berjeanty, Ho dow the apocryphal itataU) Dt imnH* ti ftUviU ; SUtulM nf the Kvalni, i- -J2S. 8ee aliui Y. -B. 33-5 Bdw. I. p. Ul. BowAver, tho odditiotial gear's rent [layaLlfl for Hoouge land waa uHualljr oaDfld a i«li«(. Thui on the Fuu) BoIIh of Bra«toD's day it i« oommon to And a * raliaf* paid for cocagB land bald of tlic kinK ; nve EsMrptn e Rol. Kin. i. 7S. 97, Ult lir4 ; bnt thtne are not pajmentn from tbii kiott's * sokemnn ' : the aokwnaB would wtUe their affairs with tho manorial bailiff*. Sometime* a lAartOT of fBofhneBt flxts a conventional ntliof. and burgage roUofn are lome-
I ftxad hy th« borough ehart«r ; nee t.g. Beg. Ifalmesb. ii. 34.
Trie anctcD «oalttmier (ed. Tanlif), c. 47.
Ibid. c. a4 ; Somtna, p. 107 ; Ancienne eootDme, o. 3i ; DelUle, Blblio- Ihiqat d* Vt'^oole d«a chartes, S^r. Ul. to). iL p. V9. The Norman pound is wvrlh much lees than the EnKlish.
* D'.\xbcdB dc Jubainrille, Bibliolh. de I'&ole de» chartes. &£r. III. vol. iii.
810
Temtn,
D
the uolf . periiftpi nol
i
UicM«uf The amouut of tbu duo relief
ihe mofit iroporUnc, point thAt hiks boon in debate. A ttwuit dies: hilt heir wu living in the nine bouM with him: or hk* heir wan not living on the tenemoDt bat at oooe pceeenta himwlf: or his heir has gone to the wan, or ha* guov pilgrunagtr : or two claiiiuuita ^tpoar, each ■iirling, thaft ii huir: or a fttimngor introdes himwlf into ftba setting up a claim as heir, or roljriog on mmt» title advorw to the aooestor. or fm hin strong right nrm : what in all Iheaa |> rmwn aiv the ngbt» of the lord I To idmplif)' the qiiiiatimi. What is the general notion of the lord's right — is h« entitled to take the land and hold it until the truv h<*)r ludut fiur it, doaa homage and pa^s rolief, ur is bo onljr entitlixl to reottva ihM relusf having no ooooern with the lan<l7 There baa bew a oanfliot bt'twivii inconHi«ttint ihourios rL<prv«enLing inoonmsteni inleresis. Already in (Jlanviirs day it is settled that if hair is in seisin the lord may not turn him oirt ; the bsir m»|f resist the lord. Still tho lord w untitled to a OHrtatn reooputioo of the fact that, though the tenement baloQgi to iIm t«MB^ A belongs aUo u> the lord ; he may ootcr and go Ihroa^ tW oeremoQjr of taking atdjiin. bnt be must du no damaga*. Bracton rapeats this: in the case just put the lord mi^ bav« 'a simple seisin ' of the laud which dues nut dislaA beir^s seisin. But other oases mnst be ilisiiiiiil : — tor at the aoccalur's death the heir may be absent, the UmsmsMft lelt vacsnt. In this case the lord may eotar, and then the hair when he appean must not oust the lord by feroa j if be do« aot the locd will have an action against him uid wiU bo lesmud t^ pusBwsion. So again, if there are two rival Haimanta af ihm inheritance neither of whom is yet in pussossJon, Iba lofd oa^ anter and hold the land until one of the two hM piwed bis light*. We must raroember that if no hair appai^ the tanamcnt will boloag to the lord Cor good and all ; alia tbal if theiT is a ilisputo bctwaeo aevenl wuukl>be haiiib IIm had'a ooart is, at leaat in ibeoi;, the pvoper tiibwnal far iu and the losd who takaa homage frmu a pre<«ader risk in so doing: h« may have to worrunt that ptauMoars aaiain. onlesa he has been cMvlbl to daoUni that tha
r^ U».1U: VMM,
• OMfOI. tit. •; Is. 4.
1
CH. I. § 7. J Relief and Pnuier Seisin. 311
is received without prejudice to the rights of other claimtmts, A conflict between two seta of proprietary tighty, those of the lord and those of the tenant, is thus complicated by the lord's jt.mfldictioiial powers. In the struggle which precedes the Barojis' War the grievances of the tenants who stand low in tho fBudal schI^ became audible; and tbi.s is one chief grievance — on the tenant's death the lord enters the tene- mont and wastes it; the heir can get no damages. An [f.^aa] attempt to redresa this grievance was made by the Provisions of 1259; a more succeHuful attempt by the Statute of 1267; the heir is to have damages if the lord does any harm, for if the heir is forthconiiiiig and in pofisession of the land, the lord IB entitled to no more than ' a simple ' or as we ^should say a formal, ' seisin'."
But here, as in many other cases, the king in outside the prerojga- common law. Thia is fiiHy recognized by the Statute of oUbeluia- Alarlborough (1267)* and made yet clcai-ei* by the document koovD as Praerogativa Regis\ When a tenant in chief of the CTOwa dies, the king's eacheator seizes the land and inquires who is next heir {inquisitw post 7twrtem); not until the heir's right has been established by inquest, not until be has done homage^ ami paid, or given security for, his relief, will he be put in seisin ; and if, impatient of delay, he puts himself in seiao, this will be a mere intrusion upon the king; for the king is entitled to the primer seisin (prima seisina)*. The machinery for enforcing this right seems to have been slowly perfected under Henry III. ; but there is no room for doubt that the right itself had been enforced, though perhaps with lefB regularity, at a much remoter time'. On the Pipe Boll of
■ See the strikingly antifetidal passage in Bracton, f. 268 b ; Note Book, pi. 348, 1149 ; Petition of 1268 (Select Chartere), oap. 1 ; Prov. Westm. o. 9 ; Stat. Marlb. c. 16 ; Britton, ii. 63 and note by Nichols. For a piotaresqoe oaae of John's day, see Pleas of the Crown (Selden Soo.) pp. 67-76.
* Stat. Marl. o. 16. ' Statutes of the Bealm, i. 236.
* In Bracton's day it was said by some that lords in general were entitled to primer seisin; bat Braoton, f. 262 b, thinks this an inaooarate phrase, for the 'simple seisin' to whioh the mesne lord is entitled is, not prior to, but con- eorrent with, the seisin of the heir.
* Olanviil, iz. 6 : whenever the tenant of a barony dies the king seizes his bind. For the history of the writ Diem elauiit extremum see Roberts, Excerpts e Bot. Fin. i. p. ix. The escheators do not become prominent nntil the later yesrs of Henty IIL's reign.
312
Tmvre,
[bk. il
USO tbo roliofii that aM mmlioiMd an in tome cana high*, nuH the paymcut of relief u spoken of m tbougti it wo* ft ooDditioD prooodont to the enjoyment of tho land*.
W« am thus broaght within aevoniy yau» of tike OonqaML tf.1 fJHJf," ~ A« to what halt happoucci in that int«nral. wo baro two md- pbaiic ducUmtionx. Hrnry I. in his conmation ehaiier aaid, * When any of my baroiu*, corU or otheta, who hold of ma shall dio. hia heir shall not rvdeera, or buy back (heru nuia mm redmet) hif* liuid, bh ht> usmI to ilo in lh<i tiin^ of my hroiher, but i^iall rulitfvu il with a juiit aud lawful rvlirf; and in like wisp the men of my barooH shall relieve their lands from tbair losds by a jiwi and lawful relief*.* In the seoood plans, Iba chrtmioler when telling how Kufus kept biahoprios and abbojs raoant and made profit out of their tcmponUitteM. adds thu he deatreil to bo the heir of every man in Eoglaod haUowed or lay*. Wc i«ec then that them alroady waa an idea of a joai and lawful reUcf. that William Rufos bad exeeeded its measara, and had in effect required the heir to porofaase his aaoealoi'e land'. Id order to discover what was ihe josi and tawfol relief, we natandly turn to the Legm at the time« and ve find that the oompilerB of them oonnder that Uw relief is but the aocMDt Bogtiab bfriol BBdST a Daw rani We are told that the aBflient bariol (israpaafa, mititatjr apparel) bad at one time ooniisted of the honwa and arms lent by the lord to his man which un the man's dnUli vnv iv- lunicd to the lord. In the bws of Qofk it is said that if by negtigeooe or in oomeqneDoe ef sadden death any ooe qmis this life intestate, the lord Khali take no moiv of hb piyty thiui hta rightful herioL The heriot uf ao earl b ei^i
' Itot. rip p. V, two bnadrad varlM ot mItw mJ oa* laark gf foU l»o buodrad muka of ulw.
* Tbm phntM olUa U * pn ivia patria sal ' i p^ M, ' al iH mliMm < patriB nl ' I pi as. ■ nt flUoa wkom lundlMBr 6* lam W. avaaaaU m1 ' ; ' Kgom.. nddlt acBpnbun da iL ft. al AlbHi haridilittlitf daSvia pMrt» U U «««a aUavmfcU lo apMk of tlH iofld M MftUac iW iaa IW Mr to ate ibw (taap. Iba. L) ifat ahbM of SWi^nw 'kdl HiIiim ImmIim di OBaOat ^amm fiunnl patris ml ' : HliS. IIMafi A.
• Chatm of Bam. I. e. I. • A. & (Sm. ml IMOl •■■ihBMrfaatiMiylalldMSLLIM. Caiv WlUua IL Ito fe
■an wha hm ■Had nllatea ■•4 Ihal Av smmI aMwa him had
<fc^ I IB ■ I H i III iBii ilmi aU <Mdg tead to Wifc ip Oaa^alf «l
ta4a Umb BioaiT.
p.«.
9-^^
CH, I. § 7.] Relief and Primer Semn.
313
I
four saddled and four unsaddled, four helms, four hauberks, eight spearH, aa many shields, four swords aud 200 mancuaeeB of gold ; that of u king's immediate thegn (cyningea ^egenes ]»« Aim nyhste ai/ndon) is foot horses, two swords, four spears, as luany shields, helm, hauberk and 50 raancusses of gold; that for a meene thegn (nt^denira Pe(pia) a horee and harness, his weapons, and a sum of money*. If a man falls before his lord in bailie, no heriot is to be demanded'. We see &ora this and from other evidence that it was expected of the thegn that he I] would make provision for the heriot in his will. Now it is likely that for a long time before William's landing the old theory had ceased to describe the facts; the lord no longer provided armonr for his dependent warriors ; he gave them land histead. antl vrrj- possibly the horses, anns and money rendered to the lord on his mau's death were by this time cousidcred as a due paid by the heir in respect of the land. At all events the Normans hail no difficulty in regarding the henot as a relief On the first page of Domesday Book we read how, wheu a Kentish nlodiariiut dies, the king has the relevationem terrne, except on the lands of certain great lords'. In Berkahire wheu a king's own thegn or knight died he used to leave as a relief to the king all his arms and one saddled and one unsaddled honw*. In Nottinghamshire a thegn who has more than six manors pays £8 fur the relief of his land to the king ; if he has bat six or fewer, he pays 3 marks to the sheriff*; a similar rule prevailed in Yorkshire*. But the most- instructive entiy w that which concerns the English (as opposed to the French) burgessca of Hereford. When a burgess who did service on boneback dierl, the king used to have h\n hnr^c and armtt; from one who hud no hor^e thtr king had either 10 shilUngiK or his land nith the houses. If he died without a will, the king had all his movables (pecuniamy. Probubly if we could now un- ravel the knot of the old Kuglish land tenures, we should find that several different 'death duties' — to use a large phrase — proccetling fn)ui diflTereut principles wore becoming intermixed and consolidated, and that this process was hastened by the Norman Conquest. Uowcwr. it is ou the basis of Cuut'a law
1 CduI, II. 70, 71. " Cnut. n. 7S.
* D. R L 1. * Ibi.l, i. M h.
* Ibid. i. 290 b. * Ibid. i. 398 b. ' lUd. i. 179: «M Uie haiimi yt^a for the tnoneycr** reUramentutH.
Tenure^
ttbout herioU ibat tho ooropilvra of CJi« Itgm Mtompi to cooiirucl ■ Uw of raliofii, Thw L^gm Hmrid define tbe rtftfvolMHM of ihe carl, ihv kiaf^'s ibirgD uod Um *~-'"** thtipi (m«itocru (A<iyni) by tnuwUung tb« vonU of Cnal*. 11m Lets Wiiiiame fuUuw the miiMi inodu], bat add that thti nlMf of the villein in his best buMi, kud thui a jrou-a rant is tha raUttf of one who hokk land at a yearijr root*. pMsiag bjr &c the laotnoDt thin inuolioD of the af^icullunU cImwot, we wem entitlud to tlit< iafcrfiux? Lbal CnuL'n Uw appoaxnd as ibv inljr tf^^l meaauro by which the 'ju^t nad lawful rvlief' of HeiU7'a i charter could be deUmnined Of any oompeiinjt Nomuui BMamra we huar noihing. In NunnaDdy, aa in Kngtand. Um relief sometimee ooosated of thu dead man'* armuiir, and wao tbaiofiira, in the oldert nnaa of the woni a ' beriot*". Bat tiw& Ueniy obierved, or (Mwoiaed to ofaesrve CuuI'm law. wo may ook infer; ita terms were tui beoomiog ofaeoleto. Perha|M be ooMaderedt and wan jiutified by Nonaan law in lawiMikiiiiin, that, at least in the case of earlduiuii and baruuiea, there waa no fixed nilp. The rclioCi mentioned in the ana KfM BoU of his nugn that ha* cone down to ua auggoit t^ be ■llei— i htnweirB lil>enU discnititin uut paid little ragard Ui the bdUiiim mica about horiots. iteu. We are that led to the qnealkn vhetlwr tho IbUowan
rifiCw- *^^^*^ Gctnqucnir who rvceirod great gifU of Bogltsh landa beU Ihoe* landa boritably. It in certain that they did; Imt thia answer may require qiialitii'Blioa and the difficulty of iho qneition sboold be Mon. As n matter of fed. iWtr beba m ■Dme caeee sueoeeded them, and we even find womon bo barooies and military fees. But the nombar of existing at a lator day that can be traoed back la the dm* qoornr'a reif^ by nn anbnikon thrmd of inheritanos might mailjr be aaaggeiatad. I^ gnat baaoan ««« ftfUMiy feUtng into tho king^a bud bjr way of mAmA Traa. Ihal ta aD sr moat caoee tho causa why tbe heir did not inherit may baww bon tbe treasiiB or felony of hia aaolor, or aamething tbaft
• l4«. Bw. <. li.
> L^ wui. I. c ao.
• Uh. Bob. fl. MT t al thi * Bi oBOflqalaqw mUM diM
701.
of iha Uatop of Bayeea H b
a>i rilsTttna* MOflapaMiiw
««lMkaM.* Ot
CB. t § 7.J Relief and Prtmer Seisin.
315
the king chose to treat aa such'. But this practical precariuus- neaa of teoure would check the formation of a law of iubcritanoe applicable to military fees, and we have to remember thai new canons of ioheritaiice, primogenitary canons, were beiug evolved. Primogeniture was new in England, perhaps it was not very old in Nonnandy ; near the end of the twelfth centurj' both iu EngUiid and in Normandy some uf the mo«)t elementary points IP.SM] in the new system were still unsettled*. Any uncertainty about the rules of descent would give an opening for the king's interference*. Add to tbts that the line between office and property is long nu uncertain, fluctuating line. Are thu earl- doms, iho counties, comitatug, to be hereditary ; are the sheriff- doms, the vice- counties, tnce-comitatus, to be hereditary ; is the comas to be the successor of the ancient ealdormau; is the sheriff to be like the Norman viscount* ? And what of the new castlea that the king has erected 1 The vury caput honoris, is it not a royal fortress ? Any reminiscence of precarious benejicia that was latent in Norman law would bear fruit when such qaestions a.s these had to be answered by a concjUBriug king who was building up a kingdom for himself and bis heirs. Nu doabt his followers believed that they obtained hereditary estates, though we do not know that they had any warrant for this belief on parchment But they knew that their heirs must relieve their lands. What would be the measure and conditions of the relief, time would show.
And as with the king, so with the mesne lords. The abbot Maane Abingdun soon after the Conquest enfeoffed knights Lo fill herita'k
the places of the thegns who fell at Hastings, regardless of any
I In 'Nonnandy before tlie Conquest diaheriacNi Reenu to tiAre been ft commoD sran and to ban girea the dake maoh land of whieb be coald dispow. Sw •bore p. 71.
' ThU point will be dticinapd in oor obaptvr on Inheritano*.
' Thus wImh tbe lalber bad lands or ' honours ' both ia Normandy and Eft^anil and left MTwal aoiu tbcrv was a prubkio lo be iolvad. It in thiu tfaat Orderio. d. iOi, ipatJta of the deatb of William FitaOabcrn : ■ QuiUdmiui Ba *i9a bonorani fiUis eias diBiribuit, (iuUlelmo Bretotiam totatotjw) patria poaXMiDOnD in Nocmannia, et Kogoho BerfDrdeaMm oomitatam/ b«e aln iii. 437 and 455 aa to tbe B«annio»t and OnindaiBsnil tnhoritanoos. Even in mndk latar daji an; doobt aboat tbe nilea of inheritance bronght profit to tbe king ; ae« oa to tho MandeviUe inbaritance. Itoand, Anoieol Charters, p. 07. and as *a tha fioeUand inberitanoo, Nota Book, pi. 13.
* Bm SInbba. Const Uiat. L 3W, S90. Dr Stobba take* Ord«rio to task Ibr not obaerviog diatiootioDa. May we not infer that tboM dietioctioofl won sot ToyoWioQir
fees.
nifi
Dmure.
[dk. n.
rightH that the hein of thoaa t^Mgiu might have. JSv^apa they wore dt8mherit«d on the eooro of what waa aooountod tbc felooy nf ihptr aocestora. Thiir; however, ia not the ilefcnne relted on by the chrouiclvr c^ the abbey, who waa not wilbovl pAtriotinn ; the thefpia, he thinkii, hod little unough ri^t to the poHSCwion of InnHn that hnd been given to the chufdt. Thoo in thu tUya of Kufiu om: of tho ocw kuighu iliiil loaviag thsvo daogfatcdv; the abbot of the daj atontW denied that there hnd bevn any hereditary feoffincnt. and at but wooM only ndtnit tho hcireaKw nnd their hiubanda as tmanta Kw lifv DO thuir abjuring all hi'ritabta rights'. Dare wn aay that ho W(u> obviously in the wrong ? A historian of law may eiiiljr rrudit hif> rhnmrt«rM with toci much forrtdght; ibe truth is Uhafc men gnvr lands nnd Utok loiida and k'f\ the temn of the toBBTB to be decided tboreafter by thu ooune of cventa and tbmr nwn Ktrtmg willn*. And m the ftoda of the Normaa reigna are indubitably hereditary: the very word U beginning tn imply. even if it does not already dearly d<>nt>t*% heriubtlity ; hot the lonl hiiK rights and tn define them ia dittouh. IIm pMt history of tho prxaria which became hmtfieia, the hmj/him which became fioda, the evolution of primogettitary nXm, the conqnust of EEngland aiMl oooaeqaeat eladi of Uwi, iba rrer rvnewed 'treamoa' and 'felooiea' perpelmt«d by tike baraiu, all tended tu keep the tnatlnr in uncertainty, ai^ when finally the kingn rights umergo into dear daylight, they ore Urge: the heir of tbe baroo mmt B«lte tiw beat bargain thni bo cmn. To aeeriba the law of nUefc td primer neiains to tho oovelooioeM of Rufua and thm cuunivg of Flambanl ia to look only at the sur^KM.
Tho hcriot waa not iiup|Tnia>wd by tbe ivlioC thoiq|li m oourae of time it underwent a tranrfimialioiL OUnritl t«lla un that tho free man who makea a will U bound 1«> ' rvcogniap' hifl lord with the beat and principal thing thai ho has and tKi« to 'reoognixc' tho chnrdi'. Bcndan rvpaata thia: the lord flhottM have tho b«A dinCtol. the church the aaoaad baalh «r Uie third br^ or it may bo the church ia oatitled to
^«
* Hm. AHa|4.U. Ift.
■ IUc)]r ka lb* t««Utti MBloqr Ihi iMel of BartM
laa4to«M
* pm rtitm/Uamm iprfaa Umm tamimm pMaalaa fnatwa —Wm I IHOlaBlMia't IwlaaOut. p^ n.
CH. r. § 7.] Relii'f and PHmer Seisin.
317
for oustoms vary'. This will remind ua of the gifts of anoB lUid money made to the king by hi.s thogoa in the old days with a request that their wills may be allowed 'to stand.' Elsewhere Bracton calls these testamentary giftji to the lords * herioU'; be tells us thai the lord gets them by grace r&ther than by right, that they are regulated by local customs, that they do not touch the inheritance and that they must not be compared to reliefs. Britton adds that iu general they I] are paid rather by villeins than by freemuu'. Turuing to manorial survej's, wc find it among the commonest of customs that when a tenant in villeinage dies, the lord shall have the best beast ; sometimes a similar due is taken from the goods of the dead freeholder, and it is to these customary dues that the name 'heriot' permanently attaches itself. Occasionally we still hear of the freeholder'^ horse and armour going to his lord ; but lar more commonly the tcDomcnt that is bur- dened by a heriot is a [>easaDt's holding, the lord gets the beat ox. and in this case the term fi&rioi must in the eyes of the etymologist bo inappropriate*. We may guess that in the heriot of the later middle ages no less than four ancient elements have met: — (1) the warrior who has received arms from his lord should on his death return them ; (2) the p**«»ant who has received the stock on his farm from his lord ahould return it, and if his representatives are allowed to keep it, they must recognize the lorti's right to the whole by yielding up one article and that the best; (3) all the chattels of a Bt-rf belong in strictness of law to his loni and the lord takes the best of them to manifest hiH right ; (4) in the infancy of testamentarj' power it has been prudent, if not necessary, that the would-be testator, however high his rank, should purchaso from the king or some other lord that favour and wumnty without which his bequests mtiII hardly 'stand.' But At any rate in course of time the heriot is separated from the n^lief.
If a relief is payable when the original tenant dies and K''ll'''«" his heir takes up the inheritjuice, should not a similar pay- .k«u" nient be mode when the original lord dies ? We are told that, in the early days of the vassalic henejicium, the death
■ BraotoD, f. 60,
' ISraaton, f. BC; K]«U, p. 113; Britton, ii 51. * VlDOijruloff, Viltaian^, p. LOl.
918
Tenure.
[bk."
of either party to the contrart put an end to the Ivnaney, and on the cuDtineai the new lanl oo cuooecding to \um ftoowtor could odeo exact a payment fhnn the tanaat*. A mnariialile doettmmt haa cumr down to tia in which William Rufufl fixes the rtUoamm which ia to bv paid to him by (ha knigfata of tbi* pptacopd bamny of Wnm^ivt«r ; Hngh dc Lacry ta to pay X20. Gilbert FitxTumtd 100 ohillinjpi, th« Abbel of Ewahan £30. and ao forth. The oooaaioD of the relief n aaans thtit thai \\w bi^hiip uf WoraevMr » dead and BoAia 0-ii| dKMMa to roganl htniM^If aa the ■iirwManir of St Wnlbtao, aince the temporalities of Uio aee are in hia baod ; ' for he would be the heir of every man whc>th<-r hnll<>wcd or lay '*. Thin wi' may nigard aa an act uf opprumion. bat the legal excoao fur it probably i« that n relief ia due from Ibe teaanu t«i their now lord. Of tuch payment* we do not hear mwek mofv untWr ihir name of n^liofii ; bnt in Normaody ooe of ihm rvf^ular ' aidi ' payable tu the lord wa^ on aid towanb h«kpia|f him to pay hia own reBcf ; half the* n>li<'f that b« had to ymy ho mif^ht obtain from hia toDania by way of aid*. In Eoj^taod wti du not n-ckon ihia among the i«gtilar aids, but Olaaritl distinotly lanntinm the lord's daim*. and we aiay we thai the new btahop or abbot oftvn vxpoetod thai hie kaighU awl other teoanta would 'racogniie' him haadaomely when be entered into poaacwon of hia tempoimlitaei*.
§ 8. WanLthip anif Marriage,
Wu4Aip Of great and increaaing importaoce aa men grow wealthier and b^gia to traffic in all manner of righta, are the righta «f tiie lonl to wardship (ewtfotbo, mirda) and marriage (i tagimm), and these have been amoi^ the chief tbal claaaification of tenuiea which has ooaie bcftve hl
■ Sehrtaw. D. B. O.. a»ti Owaaa ln4Uto JMllfnh tW !»>•
• BMilD|.0uLp.7>: BD»»d. F»bJ>I F^heil. «>.
* Ti4i HB«1« iifuSMlM, b «T-St ■!■■■, p. too.
* OlMvOl. \n. K
• TliQ* to lIKt U» wrmXjxnim bMo* 8mmi knltfali. vui Wtitf tUMMiaOMl viUi «Ul Umj Ibra OM for ih^r lUlhiniiiy ; JamUo U BnMtaJ. |k M. 1 nj is B4nrd L'l dty in^paB la «Mi e nmieliini ai lUi ftiAnMwi t T.-S. SS-C Cdw. L, pr^ lU^ IM.
CH. I. § 8.] Wardship and Marriage. 319
In Bracton's day they had reached their full stature. Their Bracton's nature may be illustrated by a simple case. A tenant, who has but one tenement, and who holds it by knight's service or military serjeanty^ of a mesne lord, dies leaving as heir a son who is under the age of twenty-one years. The lord will have the wardship of the land until the heir attains that age or dies without having attained it. He will take the rents and profits of the tenement for his own use, but ought thereout to pro- vide for the youth's maintenance and pay the dead man's debts'; he must not commit waste; if he does so, he forfeits the wardship'. But, besides the wardship of the land, he will be entitled to the wardship of the body of the heir ; if the heir escapes from his custody, if another takes the heir from his custody, this is a wrong to him ; by legal process he can compel the restoration of the heir's body'. But further, as guardian of the heir's body he is entitled to the boy's •marriage'; he can sell him in marriage'; but the marriage must not be of a disparaging kind'. The law does not go 80 far as actively to constrain the ward to marry the mate provided by the guardian, nor does it declare null a marriage solemnized without the lord's consent, though we have a hint that early in Henry III.'s reign such an union might not have all thi)SO legal results that a marriage usually has^ The maxim was admitted, strange as this may seem to us, that 'marriages should be free'/ and the church would neither have solemnized nor annulled a sacrament at the bidding of the lay tribunals. Still if the ward married without the lord's con- sent, he wronged the lord, and so did any one who took part in procuring such a marriage". Without making any great
' Bractori. f. 35 b ; Note Book, pi. 758.
- (ilanvill. \-ii. 9 ; Bracton, f. 87. Tlie duty of paying debts is gradually <>hiftf<l from the heir to the executor.
■ Note Book. pi. 4«5, 717, 1840.
< Note Hook. pi. 250, 319, 812, 1131, casoB before Stat. Mertou. In pi. IfilW we liml that it might be dangerous for an abbess to receive a yount; lady an a nun.
^ SometimeB, even in pleadinss, this is frankly stated; 'Adam dictt...iiuod vendidit ei prcdictftm Emmam cum terra .sua ' : Note Book, p!. 270.
*■ Charter of 1215, c. C, ■ Staf. Mert. c. 7 ; Petition of 1258, c. f>.
" In Note Book, pi, 9fi5, it is suKgested that a woman, who has married a ward without his lord's consent, ought not to have dower.
" Bracton. f. 89, quotes this maxim, ' Libera debent esse coniutjia.'
" Note Book, pi, 1286, Qiiare permiKit se nuirilari after the Statute ; pi, 12i*0.
830
Tenure,
[Baun?
change in the auhstatilive Uw, the Statute of Mcrluo iMned iho turd's right by givia^ htm new and ■ remedies: — the current of legislation hod in thin ■et in hia favour.
If the heir wob a womuu, the lord'ii right of wardahip mocfa the fuuno , but whether ih« wardship nf a wonuo waa lo endare ontil she attauiod fthft ag« of LWftity*<icio, or ira« tv oaue when ihv attained thi* age of fuurtven. mcom U> ban been a moot p'?int'. Uarriage with her lonT* oooMOt pat an end to the Kurdnhip of a woman. Bat aooonthif to old law. which Bnicton regardud oa Ktill in farco. no woman boMinn by military service oould lawfully marry without hvr totd'a Otmiwnt, and even a fiuhur holding by military aenrioe ouakj not in hia lifctirav lawfully giw hin daughter in iDarriagu without hii» lord's oonwut*. Thi» right the king riguuMMljr unibrcos uvnr widowti who hold of him in chief; to inany BUcb a widow without thu king'i* licence ia a grave ofleooe*. The lord's rights, it will be uodenkood, were pimif againai any cluim on the part of even the ooamt of ktn; Ute hair fell into thr lord's hands even though hia motbar wen aliw^ All appoTt-'nt cxcopliun exiitted when the heir iuherit«d fros bin mother while his fikthcr was living ; but this was banpjr mi | exoeptioo, for in this case the fittber. aooording to tm that was gradually prevailing, continued in poHHaaiuit late wife's land, not as guardian of the heir, but in bis rightr
If the dead moo held by knight's nervioe ur miUtAiy aoqeauty of several mesie lords, each of thviu gut the warrS* Hhip of the tenement that was holden of turn. A* to wbtcb uf them Hhould have thn wardship of the bei/s biidy and witli t| thu right of marriage, ihorv was intricate law ; tbe gttieral ni teaoed book (he title* ooder whieh the dfod mmi beU varions teoenwnbi «ad pmfciied Ibol loni froo wbon. ur : whose anceston. tbe moei ancient titir wm denvwd ; kbftft
OfHttfaML^J
bis«««H
irrS* .A ,
rl
gmm ■MritoKlalW lbs WlSslif ft W>fc Um^Qmrt 4aail tm
haabtaA of wmJ bstow Ihs flisioi ; pL UTS. IW mbs attv lb
*BfMloa.tMk. Asthtl«lB>*itada««M»Wlta
BiMftob'i o«B ofdaioft. In UUr Ubm iW b« wm Naa4 b lb IS.
« OUcvlll, lb. Hi ItraMua. L m|l
■ 8m #.#. KiMpte « BM. Via. U. 110.
• Itol* Book, ft. tae: BnckMu 1. iS fe.
est L § 8.] Wardship a7id Mannctge. 321
Tffould usually bive been, not nierely the de^ad man's lord, but
I his liege lord'. If the dead man held his one tenement in socftge, bur^ge, wbat or foo ferm, or by a non-military serjeauty, bis lord had no ^^^ ^g. right to wardship or marriage: such was the general rnle. ^^P As u matter of fa<;t> however, we find socage tenure subjected to th'Cfie burdens. This seems to have been the case throughout the bishop of Winchester's barony'; the dean and chapt^jr of tMsq Hureford claimed wardship of the heirs of ntl their freehold tenants'; the archbishop of Canterbury, the prior of Christ Church, the monks of Dover claimed the same right over the heirs of their gavelkinders*. This Bracton regarded aa an abuse, though one that might be aanctioned by prescription*. The ortiinary rule was that the guardianship both of the land and of the chitd should go to the nearest of those relatioua who could have no hope of inheriting the land. Thus, in the ooimmoo case^ when the dead tenant in Bocage left, a son and a widow, the widow would have the wardship of her son and of his land ; she would be ' guardian in socage/ for she never could be his heir. To state the main upshot of the rule — maternal kinsfolk have the wardship of a paternal inheritance, patenial kinsfolk of a maternal inheritance". When the heij' attained his fifteenth year, guardianship in socage came to an end'. If the dead man held one tenement by knight's service, another by socage, the wardship of the one would belong to its lord, that of the other to a kinsman of the heir ; as to the wardship of the heir's body, this and his marriage would belong to the lord of whom he held by military tenure*.
Once more we see the king above the common rules*. If Preroga- the dead man held in chief of the crown by knight's service or ahip. by grand seijeanty, the king was entitled to the wardship of the heir's body and to his marriage, no matter bow many other lords there might be, and no regard being had to the relative antiquity . of the various titles by which the tenements were
1 Note Book. pi. 661, 868, 906 ; BraotOD, f. 89 b.
> Bncton, f. 85 b, 86 ; ' in episcopata Wmtoniu ' probably meatiB ooi the diooMe bnt the barony of the bishop.
■ Note Book, pi 990. * Rot. Hund. i. 202-231.
> Bracton, f. 86 b. ■ Bractoo, t 87 b,
' Olanvill, vii. 9 ; Bracton. f. 86 b. " Bracton, f. 88.
> OlanviU, viL 10 j^ Bracton, f. 87 b ; Note Book, pL 743, 908, 1221, 1280.
P. M. I. 21
882
Tenure^
. ie«Mol is i 'M or uM
irt «rf ^^
-Uifahn
hitldun : uo one can eoinpctr with tin; king. But furtbdr, laDg wu CDtitloii to the wftnUhip of all the Uod* which detd nuu) held, uo nuittttr of whom he held them. Soch tho right of 'prtrogfttiw wonhthip/ «ud a claaie id the Oral Chan«r had been Ducmiaiy to koep it within thaw Wfuamm buundfl*. The king wan Uierebj excloded tnta a ptfongaivm wardship when tb« tawiDeDt holdon in chi«f of ib« crown warn hoUen in Moagv, burgage, fc'e farm or by a pcttjr tetjmnty Ha wan abo exolufSed whrii tbo ck-«d man, thoagh a ie«Mot is chief of thti king, hold not *aa of the crown* bat booour* which waa temporarily or pormaneotJjr in the kiag^i bai»k It i» thia laat mle tbnt chie6y Mrvea lo iirtahKah a differaooo b»tw<aa luuutv ui d$ curana and Muirt Aonore*. i^tor* The gnardian'a n^rti in lb* pma* in the swniag% wSuc landii of the heir ai« fagidwl M faoparty ; the; an
awignahlr righta; lai^ aumi aiv paid for the waidriiipa and nairiago* of wwltby beiis' ; indeed eo tbotwighly pnprielniy and paoimiary are thoae ri|^ta that tbepy can be dnpoaod ui bj will; Uiey paas like nhntt«h to the guardian'e execotsn^ la Braoton's day no difitinction in this reaped aeaaaa <bawn between the giianliui in chivalry and the guardian in anw^pe, Neither one nur ihi- uihi-T nuod aeoount bo ibe beir br IJm profits of the land ; the one tike the other can eeil the marriage*. Thia waa ao until the eve of Ibe Banme' War, one of th«i Proviuona of Wmtmineier, aftcrwiirda oooAmod the Statute of Uariborougb, kid down the rule that tk* guanlian iu eooige movt, wb«n tba bcir haa allgineH in^pwilj, account to him or her fbr the proAti of the ted, and fe not to giv« or aeU the ward in marriage mvo to the pvoAt of ik» ward*. Thia eboold be had tn mind if we arr to u the righta of the guardiau in chivalry. The mutmiity ef twelfth eentnzy Hw nothing ahamelnl in the ale of a nnnri^;
er tJM J
< Chum of IS1&, «. IT, O. ■ OMAir d* Hinlwnk ynaiiM i«ka H^OM Oloaowter aad h« Ub4 : IM. OU- fi •».
• Tb« tnattMM of • vftrldkip M » akiWil mm W W>a«i lo Ika « «f Bwiy UL; EiMqil* f BOL na. L lU. m. flM. «M,
* OmioD,l.«e[ 'HiMaMi«amhwwiafa»iHaiiwianea*ll— a
« rwv. Wart^ [IS5D. «. Ifl t Mat. MmAw (MT). «. If
CB. T. § 8.] Wardship and mamage. 323
the law of the time I(x>ked upon guardianship 4B a profitable light Bud would hardly have had the mBaiis of coDipislUng a ^iiBTdian to render accounts, even had it wished bo to do'.
Cue small point remains to be mentioned. It is the law Wardahip .KM] abcut wardships and mairiagea that graduaUy divides the Btrj^iui serjeanties into two claBseSj known aa 'grand' and 'petty/ In '**' the Great Charter, John waa forced to say that he would claim no prerogative wardship in respect of 'any small serjeanty such ■s that of supplying ua with knives or arrows or the like^' The tenu "ainall aerjeanty ' seems one which is not yet technical and the natnre of those serjeanties which are too trivial to jnstify the royal claim is indicated in the rudest manner. In Bracton's day one opinion would have applied a men^ly pecu- niary test ; a great serjeanty is one that is worth 100 shillings' ■ but gradually a diflerent line seems to have been drawn ; the tenant by grand serjeanty must do his service ia person, and his service must not consist of a mere render*. Another qoestioii was whether tenure by serjeanty of a mesne lord would give the lord wardship and marriage. Here also a line bad to be drawn, but whore it should be drawu waB a question between Raleigh and Sogmve. The ' rodknight's ' serjeanty of riding with his lord, will this give wardship and marriage? Raleigh decided that it would ; Segrave dissented. Bracton seems inclined to hold that the lord's rights only arise when the serjeanty is one which concerns the defence of the realm'.
Looking back from Bracton to Glanvill we see but little The Uw in change. In his treatment of these matters Bracton has but revised and expanded his forerunner's text". The Statute of Merton has at a few points given a sharper edge to the lord's rights; the Great Charter has suppressed some abuses which
* Coke, a Iiut. 186, regardB the ohapter of the Stttate of Harlborongh tonehing gnardiaiuhip in sooage as a ' declaration of the oommon law'; bat be did not know the ProTisionB of Westminster and has no warrant for his doctrine. An aotion of aooonnt wag a vet? new action in 1259. Events seem to have taken the same oonrse in Oermany ; the gtiardian la gradoally made Mxxnintable ; a profitable right, ttiUla twu/rvctuarta, ia tamed into a tmat ; Schroder, D. B. O., 713.
* Charter of 1216, c. 87. ■ Bracton, f. 87 b.
* Mote Book, pi. 743, 1163, 1231, 1270, 1280.
* Bracton, f. 35 b, 87 b ; Note Book, pi. 768.
' Beeves, Hist. EngL Law, ed. 1814, i. 284, has noticed this.
21—2
^
9U
Tenure.
fine.
bad groim np tinder Richiird and John, in the mnxn mhamm of the prcmgntival rif^hts. To Kpvnk of tba Bngluh lord* m gnHuiing under Uie burduu« of wiudxhip and mArm^ ui hudl/ pttrmianble*; we do not hear ihvir f^HuiH. In the dmyu ol thrir power, in I21fi and in 12.^8. thi7 hail little tosuggtat; was enough thai tho hoir't land should not be wasted, i\ wuds should not be married below thdr station'. CwtainljT there wsa at one time a tradition that in iir about the yair 1S21 ' the magnates of EugUud grantMl to King Hcsuy the wardship of their beira and of their landft. which was the begionii^ of nuinjr eviU in Elnf^laiid'.* This story, however, has doI bs— i traced beyond chronicliw which in this context must be styled modern, and as it is absolutely certain that the lung's rigb% to wardship was much older th&n Hcniy IIL's day, we may well doubt whether there is even a grain of truth in tnlc*. Morv intportaot is it for ns to nuiioo with many writen that Ulaovill says nothing about the lord's right mairiage of a mate ward ; ho speaks only of the marrk^^es of women. This a remarkable, but we can not adopt tbe pop«W opinioD that this new right, if new we most call it, ' wm bsHd nmply od a fflrained ooostructioo of tbe gncral word h^rtdm in a section of Magna Carta*.' We can true tbe sale rf tte marriagus of boys back to a very few yean alter (SanvinV death ; in 1193 the bishop of Ely, William Locigchaaph for S|0 marks buys Irom the king the wardship of Stephen and tbe right to marry him whurovcr he may please". tnuoiactioDfl are ouromoo enough thnagbeut tbe reigBB ef Richard lutd John. Arrhbijthop Hubert gi\t«i 4,000 marks ftr the wardship and marriage of Bobort Staterille. thoogfa tkr king rrserves a oertaia veto on tbe ehioiae of a bride'. If two men who have filled the ofioe of chlrf jtisticiar invest tlMsr
> ymwiB. WUUui Balta. I. tU: ■■iWJiniiwi. mU pw f hunUy Oh ikli uj t^U m^ Bi ibr iMi mnth Im Ifaen wit IraaJrid jmn mtlmw FUBbw4*» 4^-*
• ArtM« el Uw Suooik B. Ik tl: ChertK of lUh, tui,Kt^K; ttf UM, ■. 1. 1.
• WMm, ]lo«M«a VorlMMi^ mf. U,
• nglgr. Btat «l BmI PraiHrtir. «h. m. MkLIti
II. n.
'BsLQsrt. IMt wbImIIM. ST. MLMlUi, im ■■ BM^y^ le Iks OUUi and riM Bom p. entt.
OH. I* § 8.] Wtxrdship and Marriage. 325
money thna, the secoiity is fiurly good. We must siispeob that nnder Hemy 11. the sale of the male ward's marria^^ was a growing {saotice. As to earlier days, l^e one extant Pipe Boll oS Henxy L's reign shows us the king selling wardshipsS ^aOB] and aelUng the marriages of women'; it seems to show that even the male ward oonld not lawfully many without his lofd's consent'.
Then however in our baokvracd progress we oome to tiieEarikr (iedantion of IBsary L in his coronation charter: — -'If any of my hazoos or other men wishes to give his daughter, or sister, or nieoe, or cousin in marriage, let him speak with me; but Z W01 neither take anything of his fw the lioenoe, nor will I finbid him to give htir away, unless it be to an enemy of mine. And if on the death of one of my barons or other men he leaves a dao^ter as heir, I will give her with her land by the ooonsel of my barons. If he leaves a widow, who is witiiout ohildien, she shall have hor dower and marriage portion, and I will not gire her in marriage against her will. If she has <^ildren, she shall have her dower and marriage portion while she remains (dutfte, and I will not give her unless with her consent. And tiie wife or some other relative who has the best claim shall be guardian of the land and of the children. And I bid my barons keep within the same bounds as regards the sons, daughters and wives of their men*,' That Henry made these promises is certain, that he broke them is equally certain; but here again, as in the matter of reliefs, the question arises whether his promises represent the old law as it stood before the tyranny of Rufiis and Flambard, or whether he is buying
' Pipe Boll, e.g. p. 37, 'pro cnBtodia terrae W, doneo herea bdob possit terrain tenere'; p. 66, ' Uxor Walter! filii Qodoini et Bobertas firater Oodaini... nt babeant in ooatodia terram et pneroB ipsioB Walter! ' ; p. 83, ' pro ODBtodia fil!i W. de D. com terra soa.' In 1121 Henry I. granta ' Sibilla daughter ot Bernard of Neo&narehS and her land ' to Miles of Glonoester ; Bound, Ancient Charter*, p. 8.
' Pipe Boll, e.g. p. 8, ' at dnoat in nxorem sororem Ilberti de Lao! ' ; p. 48, ■ pro Cecilia filia Alani. . .onm dote et maritagio sno ' ; p. 66, ' pro terra et fllia R. de C. ad opus Hogonis nepotia bo! ' ; p. 81, * pro azore Ednardi de 8ar[iBbir!a] com terra soa ad opnB Pagani filii sni * ; p. 93, ' nt mater sua daoeret virnm ad electont Bnom ' ; p. 186, ' pro nzore W. F, oom dote ana ' ; p. 96, ' oe capiat virum nisi qaem volnerit.'
* Dnd. p. 8, ' at Bex oonoedat ei daoere azorem ' ; p. 26, ' at daoat axorem ad Telle Baom.'
* Charter of Hen. I. o. 8, 4.
326
Tfnurf.
[bk.. U.
mpport by rvUxatiotu of ancient nilea. Th* qiwtirm difficaltt for of iho Con(|ntimr']i pmclicti we know UuJe. ■ of the Nonuut Uw of the eleventh ovnturj we know, if that b« ponnblc. Ioiil
In Uut lUjn, Norman Uw uid English l&w agree; Umjt agn«o t'ven in soine of the minuter details of prero^pUirs wutJuhip, for mm in £iigliuid no lord can oompeie wiih lib* king, mo in Normandy nono can oompete with the dnktt. Perhaps under French dominion aome of the tmrat chanrtcf^ i^icH of th«> An^lo-Norman law wen> mitifpt«d. In QlsimD^ (»i day the rulu that a ward might luit lawfully marry vitlMBi the lord's ooDseot wm applied in Normandy to male •* well ■A to fcmalp wanifl ; in later etatoroeota of the rule wo bear outy of female wnrdsV From a Norman lawyer, a contein[MC»ry of Glanvill, wo hnrp. what no Engliih lawyf r gives on, namely, a definioo of tho law, and a curioini defence it ie : — * A firthariMe bdr mnit be in ward to aomn one. Who shall be hie gmaktiami ^8 mother r N«. Why not? 8be will take another hmteDd and have aona by him, and they, greedy of the hcritogv, will wbj their fintbom brother, or tbe itop-fiuher will elay hm ■top^QCL Wbotben alttflbethegnardiMir The ^ikfe hleo4 kinsmen ? Na Why not 7 Leat, thireting for bis heritage, they deetroy him. For ihi* prevention of Midi fintUeai entity, h in established that the buy be in ward to ooe who wae bound to his hthcr by the tie of homage. And who ia eoeh m ooe f The lord of the land who oever can inherit thnt Uad im demeene; for heirs of n noble rarp always have many Be^ce they ihoold bo bmnghl up in good boaeee and aUy educated. Thoee who are brought up in their lerde' are the apter to aerre their lords fiuthfully and kyre then in truth ; and the lords can not look with hatrod on thoae whom they have reared, but will lore them and faithfully guard thdr woods and tenementa az>d apply the profita of their had I* their advaDoemeni.' As to prentgative wardshipi, the ^aktK who is boond to rule all his pvc^e, is more eqwdaOy bnttnd to have a carr frn- the orphan*.
That this (juaint apology is mere nnnneim w» are Mt entitled to nay. There was a strong fcelii^ thai to
Ut
p. lOS 84 Jumk
MU». UM. <■ rfipsli im iima*m, ttw. m. rO. VL f. H.
cH. I. § 8.] WarcUiij} and MaiTiage. 327
the care of la child to the custix])' of his expectant heir was to set the wolf to guard the lantb. Fortescue, when he sang the UudB of the laws of England, made boast of the wisdom of onr niloH uhout socage guardianship. Some French custflms tnanagcd tht matter yet more prudently, giving the custody of the lands to those who might inherit^ the custody of the ohifld's person to those who could not inherit from him. Still we can not regard the rights of English and Norman lords tp.«»] as instituted for the protection of infant life, or for the advancement of the ward by education in a ' good house/ though here we may see some set-off for what we are wont to regard aa tyrannous exactions. The real question is whether we are entitled to find the explanation of the English and Norman, and (it should be added) the Scottish, law of wardship in the ancient history of the precarious henejicximi.
The histoi^' of the law has been pictured thus : — Oradnally Oriitia the ' benefice" lost its precarious character ; it became a riyWs- unufnict for the tenant's life ; the heirs male of his body^ if competent to perform the lord's service, acquired first a claim, then a right to succeed him; female heirs, collateral hvim, were slowly admitted ; even an infant heir has a claun to sacceed, a claim to succeed hereafter when he shall be able to serve the lord ; meanwhile the lord will hold the land and train the heir. As to female heirs^ if they are to be admitted at all, it is certain that they must not marry without their lord's consent. Gradually tenants at will are making themselves absolute owners. The English and Norman law of the twelfth century represent a particular stage in this process. In the duchy, in the island kingdom, under pressure of strong government, customs have crystallized at an early time, while the financial necessities of the king, the wealth of his subjects, the early development of commercial ideas, give to the law its most repulsive features: — if any one has a right in England, that right must be a saleable commodity. When French and German law become definite in the thirteenth century they represent a later stage in the transformation of the beneficium; yet further encroachments have been made upon the lord's rights, though of their once wider compass there are many memorials. The lord has a certain influence on the choice of the heir's guardian; he confers the fief upon the guardian and sees that his own
S28
3*«iit«r0L
[bk. ttJ
rigfate are not thorttliy impiirod ; if no kiiumoxi u fbrtbeoaiiiig, tbeo ho k00[M ihi? fivf in hu own hHixlx ; hu luui alwi « wuni la My ftbout the marriogo of hi» funialv tviumtai Tluffe and Qemuui phfRonicnn find thuir biNit vxpUnation m ibc Uw^ of England and Noriiiiui<l)-'.
How fiu* LbU by|K>thelical huloiy can be vtriflad in Bcantv nntmlit of thu Nomuui duchy in a qawtioa about wo dnrv «iy no more than ha** bt^n iwid abovu*. Thefv howerar to be ju«t enough evidence to show that the Coi both in Normandy and in England oipect«d that he woolil oonimltvd befiire any of hiii femalu tcnantH in chi«f— he bad bill few— took to hcnelf a huitband, and, m abtsady remarked, tbe inheritance of great fiefii, at leaet where an office waa botiad up with the land, waa not altoguther beytmd hie oontnJ*. Ilivfw were caeee in his own family which might lapport niefa a claim ; had not Richard the Foarlcv been in ward u> hia lani King Louis: bad not William himaelf been claimed by Ki^f Henry f Men said so*. If tho kiogs of the French had beca compelled to abandon all bo|ies of conteHtii^ the herilafailHy of tho great nofi), thfy hwl yiddMl iluwiy and fiilnnlMHl|jr. attd porhap hud hardly yet brought thvmaclvee lo ackaowledg* the full import of the unpleasant bct«'. The king of tbe IThfllidb was to be not lea of a king than the fctng of the Preach, aad HghtH of wanMitp and tnairioge were oeecesary to him if he
* lUlkBi. UlddU A«w. «1. lifS7, vol t ff, ta»-t*l. Md BefSiV i. MO. iMurh ih« pMvlitf Mtwtijr o( BacUflk ud NoraM 1m. Am le Omaaaj. mm B«hn.d«. D. B. O. M6. A* la FnwM. ITAzMi ^ Jifcrtwab, ItoahHvbM Mr \m miaoriU H am iCrta daa* h draii Ooiai fcaagili. UML te rfteob im elwrta. i4r. m. voL U. !•. 415. rat. ttt. 1N^S»( diiaraUdTUfrmB9«b.iMt Udwr*. M«iib«I 4a teHMlMS BoDsin, Hklaira da droil ftmitaia. 111.
* 8m sW*!^ |t< 71.
* 8m Ordoic U. 409: 'PrMlMBS OoOMMi (d* IM^) Vkkida fiUoa foUdu) mOitiB ainfann Tlfidl ( sad* OaBUaHi PriMifa OildaendieBBlatoiibMwrallattandaaDSnltt.* Win mth m. I0T4 1 ' tadMwk MMM BogMw. ftHsi WlOabsi alOMlMi fa«M iwhii. In lagli •omlU lUdulfo, ooain |iimm|iIiiiii n0a WUUIbI, tradldiL' 8o of 8t WalhiM «■ hkM Ihis atocy: • da «fiiMaro [d« WbMMtM] T. K. K. <f»o mmUm dtHl ram fass torn raidiB tea aOM ^ M nsMn pasHMt «l a$m^m tete •Mvtrrt'i D.aLin. «Bm thMibp>n.
* Loahftin. ImOmIom ■nwgrnhl|iw. I. IT. Oim «■ iba ^ta W M* Kmmu CMiqaMt of Sa^aad h Mmi •» vWak tW rMi* b^ Mtr ^ Mid to te*a flnllr ilwdDBsd sU bofa at iiTlriltsg ilw hlwfciaii ^ ite
Hestraints on Alienation. 329
to keep any hold upon his feudatories. The use or abuse of sadi lights for merely fiscal puiposes may b^^ at a later time ; but there the rights were. As to the mesne lords, they seam to have takoi the first oppprtnnily that oocuzred of aasertiDg rimilar rights; in tihe reign of Rofos tiie abbot c^ Alniudon was already- claiming the wazdahip oi an infimt tenant*. On the whole it seems to us t^t the old is tJie tme {p,tao} story, and that the rights of wardship and marriage ar^ if we look at Europe as a whole, the outcome of a process which is bwwfitJTig the feudatozy at the expense of his lord, though it may also be reducing to l^e level of feudatories men whose pcedeoesBoro had no landlords above them. , Unfortunately in fi[^^and feudalism itself becomes commercial..
§ 9. Restraints on AliencUion.
In the middle of the thirteenth century the tenant enjoyed mtetoi a huge power of disposing of his tenement by act inter vivos, Oumt^t though this was subject to some restraints in fevour of his |j^]|||]|jj{|i, lord. About the history of these restraints different opinioDS have been held. The old English tradition, represented by Coke, regarded it as a process by which limits were gradually set to ancient liberty '. On the other hand, the cosmopolitan * learning of feuds,' which Blackstone made popular, assumed the inalienability of the fief as a starting point: — ^gradually the powers of the tenant grew at the expense of the lord*. Of lato years a renewed attention to the English authorities has occasioned a reaction in favour of Coke's doctrine*. The evidence deserves a patient examination, the result of which may be that we shall see some truth in both of the rival opinions, and come to the conclusion that the controversy has been chiefly occasioned by an attempt, common to all parties, to make the law of the Norman reigns more definito than really it was.
1 KiBt AbiDgd. ii. 23.
* Coke, 2nd Inst. 65 ; Co. Lit. 43 a.
* Wright, Tennres, 154 ; Gilbert, Tennres, 51-3 ; Blaokstoae, Com. ii. 71-2.
* Beport on Dignity of a Peer, 398-401 ; Digb;, Hist Beal Property, oh. iii. we. 2; Scratton, Land in Fetters, 41; Challiii, Beal Property, 2nd ed. p. 18. See however, Williams, Beal Property, ed. 18, p. 66 fl.
330
Tenurt,
Xb»L n.
'mmm«t Samo dutinctioiu mnst HTst be dmwiL Tb» tMWBl Ut^
denro to ttiesMto the whole, or only Hume {lart of th« tattMHOlw bjr mbinitutin^ for himself nocne new looftnt who will hold the tcoflmi'nt, cir the p&rt bo aliennted, of hiii, the alipnAtrrV lonl; or again, ho loaj doiire to atid a new rung tt* the bottom of the aoale uf tentirv, to have n tvnant who will botd the whole or part of th« land of him, and in thw obm the aenricM for whith he atipalatea may b« diRVrt^nt. from ihoae bjr which hr himaaif hfJda of hu lord; — we have In cnoLnut 'anWlitaticio' and 'rabixifoudntion*.* Now each of thcee two pcooeaaeB may the lord, but the harm done bj the cue will, to a lai eye, be diffen*ot fnim that done by the other. FlnA, bowamr. we hnre to notioe that nothinf^ that the tenant can do witlMat his lord's oonciirrence will rcmovo from the land the baiden of that aervico which is duo Ui hia lord from him and trota H. The tenement it«elf owoa the aerviee; the ' reality/ if ww may Ro Hpeak, of the harden can be brooght home by mnana of distrcfli to any one into whohc hiiuda the land may eon«. Bttl though this bo so, an alienation of any kind may make agatoai the Innrn int*'nwt If a new in mibstttnted far an old tenaiik, a poor itmy Uik^ the place of a rich, a diahooeal tbat of as honeat man, a foe that of a friood, and tbe aoboin bond «f homage will be ftwbte if tbe raaaal b«i a free power of pattiig aootber man in hia room. If the imbstitatiiai aflacta part only of the tenement, the lord may nuffer in another way. and it it hardly to be rappoaed that he can be bound by an apportinaBm of the aenrioe eftrted without his concurrenoe. so thai inalaad of binng able to luok to onr miui and su ludea for hia aeulafa or rent, he can be compelled to look to ooe man and tour hide* for twfvthinU of it, to another man atid tw» hidM far thm n-mdiir'. The hann done b^- mibiofuTMUtitm in of a diflacent kind. There will atill be the old tenant liable as belbiw; on Ua death the lord will get a ntiof or poaab^ a wanMup aad marriage, on hia death witboat ban. an caehaal. Thm* i%fcta will nut be destroyed by the anbinfeDdation, but tbrir nlee may be aerionaly laMiiiiied, Snppoao thai A anlaiiflad B l» hold by knight's aenrioe, and thai B «nl«o6SMl C tu b«ld al a rant of a pound of pepper; S dtea laaving an bacr within age;
i
^ la tte vmm ot lUi ffiMlri U vOl te saa uts iotv both mlttrnttm If My ^ tNii'pHtiselBto
MestrairUs on Alienation, 3S1
A » entitled to a wardahip; bat it will be worth veiy little: inctead of being entitled to enjoy .the l&nd itself until the Juir is of age» he will get a few annual pounds of pepper. And so IB case of an esdieat, instead <tf enj<yfing the land for ever he nutjr hare hot a trifling rent^ Obviously the case i^ at Lts worst ^811] when the tenant makes a gift in fFankdmoin ; a wardship will now be of no value at all; an escheat will give but a nominal angncny over a corporation which pays ao rent, which never diea^ nor nuuries, nor commits fel<»ty. Still, it is plaugible to say w^ Braeton, that the lord is not injured; bis rights lemam what tbey were, though thdr value is diminished ; he 8ii£fen Aimmim, but there is no tnturta'.
Abo in our investigatitm we must keep our eyes open to '"^^ difierenoes between the various toiures. As just said, a gift in ' firankahndn, tiiou^ a vezy common, is yet an extreme ease; it redooes the value of the feudal casualties to nothing. Tenure by seijeanty again may require ]q)ecial toeatmen^ for is a servant to alienate the fiu^ which should sustain him in his lord's service 1 Lastly, Uumgfa pure feudal theoiy can draw no distinetiGn between the king and other lords, still we have already seen that the English king has vefy ezeap- tional rights within the feudal sphere. Even if no excep- tional rules were applied to him, still his position would be unique. Too often in discussions of questions about feudal law we are wont to speak of lords and tenants as though they were two diflferent classes of persons with conflicting interests. Therefore it is necessary to remember that the king was the only person who was always lord and never tenant; that his greatest feudatories had one interest as lords, another as tenants; that the baron, who did not like to see his vassals creating new sub-tenancies, could not forget that he himself had
I Escheat of & mesne lordship gives rise to some pretty problems disoasMd b; Brkcton, f . 23 b (the psasoge ie an ' addioio ') : — A enfeoffs B at a rent of 10 shillinga ; B enfeoflB C at a rent of 6 Bbillings ; B dies without an heir ; is A entitled to S, or 10, or 15 uhillinga a year? In favour of IS it may be said that 10 are doe to him nnder his feoffment of B, and 5 more becaase he now fills B'b place ; bat Bracton decides in favonr of 10. Again, A enfeoffs 5 at a rent of 5 ; B enfeoffs C at a rent of 10 ; S dies withoat an heir ; Bracton thinks that A is entitled to 10. On f. 48 be treats as an insolable pnzzle the qoeation whether A is entitled to tbe wardship of C's heir, if C held of S in sooage, and B, whose rights have escheated to A, held of A by knight's service,
> Bracton. f. 4£ b, 46.
332
Tenure,
[bk. 11.
ThBOnat Ctamr.
B lonL Tho conflict of interest* takes pime within tb« miad of cvuty uuiguato of the roalu, aod the malt in th«t Um doTplopmont of definite law is ^low.
Thin pramiaed, wo turn to our hiatoiy, and first to tiiat part of it which lies within legal memory ; of the oaiiier tiroo wo shall be better able to ipeak when we have Meo its nnliwns Now the main lacts of which account muit be taken ats as t^M fullowH:
(1) Ulauvill nowht-rc Bay* that the tenant can not alisoata his lattd without hi» lord's oonsent, ihoujjfh. ■■ h« fpssks M soma length of the rostnints on alienation that an set bjr the right« of expectant huim, ho has an excolhmt uppoctoaity far saying that the rights of the lord aImo must be etmmAtndK
(2) The Cmat Charter of 1217 is the fiisfc doenrnMit of a l^iilatiTe kind that expressly mentions any nstimint in farour of tho lord. It says — ' Xo free man shall hcneeforth give «r sell flo much of hin \axtd as that oat of the raadae he may net sufficiently do tu the lord of the Cbo the serrioe which pcrtsias to that feeV This has all the appoantoce of being » nds sdiich imposes a now or definee a pre-axisting rastcBoift; ts read it as mitigating a preexisting resttaint woukl do violeoos to its words. Coke speaks as thuugh ila only eflfoet was to mdce the excoasiTe gift voidable by the dooor's heir' ; bat it Ofrtainly ciiuld be avoided by the dooor's laid ; this «« Issn both from Bmeloa and ftvm a decision on which he rsliDS*
(3) Hiroagfaout his work Bmotoo shows a strong lesuig in favour of free alienation. As regards aafainfeodaiiaft* l« argues UboriMUJily that it does do wrong, though it may ds damage, to the lords*. The vnry eantertaesi of his shows that he hsH to combat a strong feeling, still w« i take his opinion as that of the ruyal court. Tbs rvie down by the third rditioa of the Charter he mentiaos only in a veiy easoal way. oa tbongfa it wen directed duetfy, if solely, i^ainst gifls in fewnknlmoia*; aaUeetMos of and ooUseUoos of plsss from his tiroo sson to sibinr tksl iA
t OtesT. viL 1. A« niiHiMJ hr Or U b iNMiUs ID Sad la Otoavfll** Mti Ow s«a«al. Ih«a osa U no ■ wWrnwHoB '
• Cksrtw, U17. 1^ m i Coka. fai l^L U.
tlMbt Xoi* Bosk, pL 1»M.
CH. 1. § 9.] Restraints on Alienation.
333
produced little effects The strength of Bracton's inclination in favour of Bubinfeudation may be shown by a passage in which he gof3 so far as to question the justice of the rule which treated service as a burden on land. He suppo8C8 that «T A enfeoffs B to hold by a certain service, and that B enfeoffs C to hold the whole or part of the tenement by a less service ; the rigour of the law, he says, permits A to distrain C for all the service due from B, but this is against equity'. Then as to subetitutions, he holds that even when B has done homage to A, neverthtUnas B may givt! A a new tenant by enfeoffing C to hold of A. and G will then hold of A whether A likes it or no*. Bracton does not even expressly allow A to object that C is hiH personal enemy or too poor to do the service, which js very remarkable, since he does allow that the lord can not substitute for himself in the bond of homage a new lord who Is the enemy of the tenant, or too needy to ful61 the duties of warranty* He does not even say that the tenant can not give a fragment of the tenement to be holden of the lord by a proportional part of the service, though we may take it that in his opinion the tnef{niUible rigour of the law* woiihl prevent the tenant and his feoffee from making an apportionment which would bind the lord.
(4) Just in Bracton's time alienations in mortmain were L*gi«liiU»ai
An to
beginning to cause murrauni. The charter of 1217 hud struck mortiii*iu. at certain collusive practices to which the churches had been privy". In 1258 at the Oxford parliament the borons prayed remedy, that men of religion may not enter the foes of earls and barons and others without their will, whereby they hm for ever their wardships, marriages, reliefs and escheats'. In IS59 the Provisions of Westminster ordained that it shall not be lawful for men of religion to enter the fee of any one without the licence of the lord of whom the land is holden*. These
I Tbi odIj eaae in the Nute Book io whicb it ii maationsd is |>L 134)^.
■ BnwtoD, t. 31 b. Thta [usufie ia ui 'oddicio.' ' BnctOB, f. 81. * Bnotoo, f. 83. > Bnwtoti, f. 31 b.
■ Charter, 1917. a. 4S, Oo« in Dot to enfeoff a religiotu houae and tlion Uka bMk the laad aa teoant of that faoase. Tho iniaohiaf to U pravaotad ■etnu to Iw this: — Some favoured rvUgioaB bodiea, e.g. tlie Templan, bars garti ehttrten wliieh liv general vonb rnit tree all the lands that tbev now have, W ihall here*ft«r aoqoire, Erom many burden*. A raan girM Und to »uah a kooat, aod than becomn that bouM'B teuant, aod aa nich he claima immoDtt; ■ndar Um charter.
' Petition u( Baroot. o. 10. * FrovinuaB, eap. 14.
jcfiurSi
D
3=5=,
Provuioiw wvre now law, now not law. ag Um barooa or ibr king obluiueil ibc uuut«ty. Mont of them wuro rv-eoaelad bj ibe StAtiile of Marlborouj^h in 1S67, but not the proruioQ in question ; from which we may gather thai ihn O^rgJ influential enough with th« king, who was cnjo}-ing hin own i^ Again, to put off the eril day. But not for long. Cor in 1S79 the Si&tulv I>e Virig JUligion*', aftttr referring to the Piv- vinuiia of WcMminatur as though Ihoy wurc or had been law', put a check upon aUeoaUouB in mortmain. No nbgaowi par- aons were to acquire hmd ; if they did, tbe land wwm to be fcv- feited to the loid, and be had a brief term given him lor lakiag advantogo of the forfeiture ; if he fiuled to do to, Ilka lord nail above him in the feudal scale had a aimilar oppoftunity ; and M on up to the king. The Htatute does not menJy rmndiin gifta in fmnkalmuin ; the religious are not to aoqmn moiv land, even though they are willing to pay a full rent Cor it. However, the lung and the oUier loida, if any, wboao intei werv ounoemed could bind thomaelTca to tako no adrantagc tbe Btatule, and tioeoooa to ooquire bad in mortaata wnewbat eamly obtained.
(A) From a compuatively early date vc loarn tJmt «r- joanfcica wero inalienable. Already in 1108 the itinanat josttoea were direotad to make inqneat tooofaing tbe king^> Btfjeantiei*. In ISOS John urdared an inqueat aa lo ibr aerjeantiee, thegnagea, drengagea and other aervicaa and Ihi^ of tbe honour of Lancaater, which hooonr waa tbao in has hands ; the ahenfis wero to mum all such aa had bam alianalsd atnaa Um oorooatiott of Uenry XL without lioenre from tb* king or other good warrant*. This claim was rteadily maia tainiHl by Heniy HI.' Towmrda the middia of hia mgn H waa eoCoroed with KUo&p&etive rigour ; Bobert PaMoiew mtm mm throogh '^'■'^ to'acrent' the alienated ■■ijiatie^ that ia te my, to change the tenum from aerjcanty into kni^t'a
'^
> BM. T Bd«. L rorib* pumtU VtmA m^mam af Itn ■» LstiiMdiPfalli|i|i«UBa>dL«MI.{ Bmria. Bkloln As 4»Bb
■ Th* ntewop ■ ool, ■• Mmmmtj i|iiiii. la Ihm dkahv «t IStT s ntflsl otf «M of ib« PnnMaas of UM. TIim FraffWaas vw* wl
ah
puMlSZIT.
•Oslo. a. Mi ll«toBa^9il«WiBta0lSB.(.IMu
CH. I. ^S 9.T Restraints on AUefiation. S3 5
or eoooge. One instance out of a verj* large number will servo to show wkat was done. Walter Deveniah held Iiami by tha aerje-anty of finding three arrows when the king should hunt on Dartrnoor; he had alienated parts of the teneinont to &ub- teTuuits, his services were now changed iiito a rent of three [in«) ahillliags, one-third uf which waa to bo paid to him by his sub- ten&nts^ That many of the king's tenants by serjeanty had alienated parts of their tenements by way of subinfeudation b instructive : we learn that a reBtraint on alienation might exist in theory and yet be much disregarded in practice. Our evidence chiefly coucema seijeautiea held of the king ; but we may guess that other lords thought that a similar rule might be applied fcu their seij^ants ; and the Serjeants of the honour of Lancaster, whose alienations John attacked, were not tenant in chief of the crown.
(6) Bracton nowhere says that any special restriction is Siwcini u* imposed on the tenants in chief of thu crown ; the utmost that iiing s*^ he does is to suggest, and this Qot very definitely, that the ['^^t^"'" Charter of 1217 has been construed tavourably to the king. The tenant in chief by knight's service uf the king may not make a gift in frankalrooin, or a feoffment which reservuts a lesa service than that due to thu kiug^ But just about the time ^^^^^ when Bracton was writing Henry III. issued an important ordinance. It takes the form of a writ dated the 15th of July, in the fortieth year of the reign (1256). The king asserts that it is an intolerable invasion of royal rights that men should without bis special consent enter by way of purchase or otherwise the baronies and fees that are holden of him in cbie£ He declares that for the future no one is to do this, and bids the sheriff seize the land upon which any one enters in contravention of this decree. This writ, however, remained unknown to our historians until it was published in 1896, and, as we shall see hereafter, even the lawyers of the fourteenth century seem to have been ignorant of its existence*. Perhaps the king did not wish or did not dare to enforce in all cases the
' TeBta de Nenll, 197. The whole book is foil of informatioa aboat the urentation of serjeantiea.
* BractoD, f. 169 b. The passage as it stands is not very plain. See also I S95.
> It vas discovered on the Close Boll b; Mr Tomer and pablisbed bj him in h. Q. B. xii. 300. Eqoall; important ordinances may yet be latent.
336
TVmmv.
[bK. II.
OfMKhtf
bfoad rule Ui&t ba had laid down; tha Bftnu* War at hand. The apocryphal Statute Pramvffativa Rtgis. which may Tvpitwcnt the practice of tbi* iiirlif'r yatn of Ed«an) I., •<n\-8 thnt uo Olio who holtU of the king in chief by knigfafa f'L'mcc may without the kiug's licence olioDaiv iho graatar pnrt of his land »o that the nwiduo in not nifficirnt to do the aenrice, * but Lhia is not woat to bo undentood of tDMabats parcels of the said buida' It adda that the loaf haa accuBtomud to lot to rant (arrvnton) aujaantiea that have been nlienatcd'. In 1290 n petitiooor aaya that the king haa a prerogative that thoao who bold of hun in chief oan oot gir« or alienate their lands without hia licence ; certainly ihey am Dot alienate all that thi'y ao hoM*. Bntt4>n atatce thai eark^ barona, knightj and aegcaata who hokl of the king ia ehiaf oaa not without hia Uoenoe alienate thair feci, bat the Uag nay ejvot th<i purchaaen, no matter bow KDoant tbo altenatioa, Miner time dws not run against the king*. KIcte ftatat fanmlly that uo toDcmeute holdeu of the king can be givaa witKout hia aaaent*. This beoonKM the taw of after timeib Bolbra the cud ^\ of Edwnrd'4 reign both theory and pmclice draw a marfcad diatiucLion between the king and other lunK aad the king ia OMking a oooiidamble ravenuo out of lieeoeea to alinnati aad fine* for alienaticma afiected without licence*.
(7) The growth of the royal light may ba feiaead alao ia the artidea ddivered to the itinerant joatieaa. Already ia Richard's mgn they are to inquire ' of the ksng'a aerjaaatjaa^ who baa them, aad thtoagh whom, aad how aiaeb, aad vkai tbay are worth'*. A ainilar inqatir ia found aaioqg Um artiriai of Heni^- Ill.'fi reign ; but, though tht<m wrra diraai otbar intjuiricK about rayal rigbta. wanlahipa. cecheato and tha ^km, there aootna to have baca none as yet intii abeaatiaoB of baik not hokioa by anrjcanty*. Bat in or about ItM a special oam- mtanoo waa iaaaod*, which waa a Catenuiaar of the mora Unum (^m ftaromto inquiry of BdwaH V* rajga. aad a»niy ifca artidea, beaidaa that about aeijeantaaa, thara aMna la hata
• Aa W As date «f tkk Inmwwl. m B. B. O. vt. MT.
" MmI, Qwr 4ta. • BdUM. I. tn. • Wkm^ im
• BmBaLOvw. AUnrr. «.f. t«i mkU» T.^ »-• Ma; L «a.
• BnwJM, K m.
' Bnotaa. C. Iia bi Chrt. QHurn. U. 17a; An. Barta^ la^ ia {»* •Bai.Baa4L latoadaaMaa aai |t. ».
r. I. § 9.] Heatraints on Alienation.
337
;a one 'of kuights, freeholders, mea of religion or otherb, jluldinj^ land on the king's demesne hy gift or sale of the )keinen or by provision of the warden or bailifis,' and another 'of men of religion who have entered the king's fee so that the king luses ward», reliefs and tallage'.' The right asserted is growing mure ample ; and two years later the king issued the decisive writ. And so the inquiry beconies more extenave. hi 127+ it runs thns: — 'of the fees of the king and of his lenanta, who now holds of him in chief, and how many fees each holds, and what feus were wont to bo hoMen of the king in chief but now are held through a mesne lord (per medium), &nd what mesne lord, ntul wheii they were alienated, and how and by whom*.' Thenceforth this is one of the usual articles of the eyre, and as such it is given by Fleta and Britton*; it formed one of the jVowi Capitula which were distinguished from the mure ancient articles. ^J (8) The famous statute of 1290. the Quia Emptores Quia
Terrartim*, lies outside our ltmit», but a word must he said of "*''^"*'"
^^. It declared that every free man might sell his tenement or
^■Dy part of it, but so that the feoffee should hold of the same
^Hurd and by the same services, of whom and by which the
^■boffbr held. In case only a part was sold, the services were to
^Pie apportioned between the part sold and the part retained
according to their quantities ; this apportionment was binding
00 tbe lord. The statute is a compromise ; the great lonls had
to concede to their tenants a full liberty of alienation by way of
substitution — substitution even of many tenants for one tenant
— aad thus incur a danger of losing their services by the
prooefls of apportionment ; on the other hand, subinfeudation
with 'tis consequent depreciation of escheats, wardships and
marriages was stopped. Nothing was said about the king's
fhta and no one seems to have imagined that the tenants in
sf of the crown were sot free to alienate without royal
;g; on the contrary, it is just at the moment when all
tenuits are gaining perfect freedom, that the king's
to restreun any and eveiy alienation by his tenants in
lief attains its full amplitude'.
> Rot. Huod. X. aO-M. ) Bot. Bnod. i. iDtrodDotion.
* Fleta, pp. 9«, S6 ; Britton. i. 71. * Sut- 18 Edw. L
■ To treat Uiix tneamira m having bcin puaod in thfl uil*niit of tho gnat
lordi Mcnw k inutakv. The a>w psnon who bad ill to |kia and Dothing lo
low by the new Uw wm lliu Idag.
r. ■. I. as
^^
338
Tmurt.
[ntL II
(9) What wms th« legal Umhji of thu prerogativ* right
Alruiidy in thu tuiddloof the fDurtvealli rcmtuiy tho lawj'cnhtt
no certain anavcr for thin qaettion. The writ of 1250 ihrv ^H
to havp forgotten ur but TRguely rfmembeml and ioniRW^
daUil ; aUo th<*u- Hpi>cuUUon« an* obftcurcd and vitiated by lb
belief that the Prturoffatim RsffU waa o ilalQt«. Ab«ady ii
Kdwanl II.'s day it wan dear that the rojal ckinu wen ta
cxt4!rouve to be covered by Oie clauM in the Cbvler of \\
In 1SS5 oomphuQt waa made in parltatnent thai
applicable to fcenani* in chief ot the crown wan being
to tenantii who held of hnnoutv which had fallen into the
haodii ; the king aeknowledgvd the divtinctiou ; an lord
honour he had only nuch rights m were given to all l<>rd« by<
Charter*. In 1327 a iiUtute waa reqairvid to MtUe thai, m
an alieuati(»i without licenoe, tike king was entitled only I* i
reaaonable fine and iKit to a forfeiture of the land*. In 1341 i
waa mgf{«ted in court that before the ihirtielJi y««r o
Henry IIL a tenant in ciiief might alienate withonl Ueoaae'
In 1%46 it waa aiMcrted and denied by plcadere that beftiR lb)
twtmticth year of Henri*' III. a tenant in efaief af tlw mvmt
could alienate like any other tenant The reporter ■pyiiitl]
has bin doubta and telU on to connider the date of tbe iN<awr«ya
ttra Hff/iji*. In l.').S2 the question waa diecnfd wbelher
Henry Ill.'a reign tht* tenant in chief ooaM ■nbcnlmidalc
out licence, and apparently tbe deciiiaa waa to tbe effect d
be oould'. In 13&A the hiwyt*ra ant moe owe debating wl
eomeUiing happened in the twentieth year ci Uvnxy I
prevent tbe tenant in chief from Mbinfeodataag*. Wh<
they ringle ont the twentieth or thirtaetb year (1!
124^-Q) of Henry IIL aa important f To My witb
that iu the twentieth (or ratber in the fbtlowiag) year
CWrta was coofirmed. ia not wlis&rtory; tbe «
Mid of K> many yean, and the Mafna Carta of the
iUtute booka waa the ebartcr offf Hemy IIL (ItSftX
by Edward L To My that Ibey referred the
Btgia io the tweotietli er thirlitth ;ear of Hi
impoarible, since thai eoigniatical document ownt
*tm.rmi.i4ao. * nt»t, i Um. nt •. it.
■ T. D. r^A. u u«. nt <•.!. raui. pp. i*?^
«UkAM.Ln,uift.l0.pLtT;M«abo nta. Abr. J«*««». 11 •tilLAaatl9l,Baa.«l.pLn. "Iik.AM.tl«k
IjOfcULaa.
r. 1. § 9.] Restraints <m Alienation.
Iw&rd. Probably they were thinking of the ^^irit of the
irtieth year (125(>). The discussion, however, was taken up in
liameiit, and there the king's right vras treated as the
uiiux>me of the Praerogaiiva Regis, and was said to have had
\i» beginning in the roign of King Edward I.' A declaration
^^i the law wn^ demanded: but the king desired further iufor-
^EiuttioD. The question was of practical importance, for it came
to this: — Could the king attack a possessor of land on the
ground of an alienation made without licence in the days of
^JKing Henry — or, more generally, was there any limit of
^■iuie that could be set to this prerogative right? In 1360 a
^fttatutc confirmed all subinfeudations made by the tenants in
^■tihief under Henry III. and earlier kings'. As we can hardly
•^ believe that Edward III. gave up any right to which he
^^DODsidered himself justly entitled, wo may infer that the result
^HjDf repeated discussions in the courts and in parliamt'nt was to
^Vdate the change in the law at the accession of Edward I. in
1272, about sixteen years after what we may now regard as the
decisive ordinance'.
On the whole then, we may be inclined to accept, with 8umni»ry )me TDodifi cation. Coke's theory of this episode. We may •futr Uw believe that the only restraint on the alienation of tenements ciuirttT. holden of mesne lords that existed after the year 1217 was the aomewhat vague re.Mtraint imposed or defined by the charter of it year ; that, apart from this, the tenant might alienate the rholo or any part of the land by way of subinfeudation, and fche whole, though perhaps not a part of it, by way of subati- Intion ; that the king's prerogative right gradually grew out of le right allowed to all lords by the charter, though it exceeded le words of that compact ; that it was first asserted in all its breadth in the vrrit or ordinance of 1256, and may not have been stringently enforced until the acoessioa of Edward L'
ti Dol. rwl. U. 3(15. 3 SUt. M Edw. m. o. 15.
■ In 1419 HBokronl J. nid tliat iu Henry Ul.'s tima ik UnMii in ohicror tba rown mifcfat bftre klicant«d as frm-ly u an>- other toniiat ; Y. U. 14 Uon. IV. t {3ii«h. [>1. C). * While wriu bidilioM Um «lMriB« ssize IauiIh wbtoh liav« been ftlieaated viihout lic«ooe appear npan tbe very earliMt Fine ItoUx of Edwanl L, ve haTii in ralo aonght for anjr lumUar writ* upon aomii of the Utt Fine BoUa of Bau7 UL Pine boll, 1 K<lw. I. m. !t ; the sheriO of 8iua«x it ordered u Mixe taoeaaontu which Franco Ab Bohno, a t^^oont Id chief by terony, has sold without Uvniw tu Alnioric <le Lucy. For oUter tnttaoMs aee tb« mow roll, in. 16, m. 32 ;
22—2
340
SVfUire.
[bk. tv
tUrU*.
mmmaa ftertfi*
Bui lu to nn cAriwr period, tb«n is roach to b« mid on ibe other siiJe; there arc the odcc fuhionnblc ai^KnnHiiit* dnwn from * the leaniing of foud«,' whilu mora solid Arxumenl* mmj be derived (pjtn Eu>;liBh uud Nonuim dvedk.
Ajs rqgvda 'the original coDMtitutioo of fcndn' liula De«d here be aud: it wm au old story long bdbra Um faaUU iif liastingi. Verjr geaenlly the coDtineutal vmmI eoold wM (lubstitute ft now vuBal fir himaelf withfuit his lord'i oodmoI; but cominuDlj he hod mma power of ■obinfeudfttiDO*. Wbervror we look in the twelfth centorj we ae« difierenem vi ptmrtjae, and in aome mam the law ta beoonung more lavourabla to the loids, \em fiivooimble to the teiuuit**. In this tnrtwmc bo«* evor we have no need to look beyond England and Nonnandjr. For the period between 1066 and 1217 we have hmdndto of Ifaiglish chfirtcni. and at first night they Bccm to go Uwt ftfl length of proving that fniin the Cooqaaat onwaid oo iMast oouJd alienate his Laud without hiit lord's oonsenL It so hap- pens also that in Nonnandy we can traoe this rmtiaint tm alienation back to the time when the duke of the Konnaas «m nut yet king of the EogliAh*. The chn.>nicle of Orderie h hU of gifts niadp to the Abbey of St Evroul. and in case aAar can the chronicler is cnreful to trll us bow th«i gift was oan- finned by the donor's lord or lorda; to Muking noiitnuatiBB tW nooka atoaod the aoale uf tenort aad do out atop natd iWy svocb tho duke*. Then, after the Conqoost, IImj acqain lands so Baglaod ; far ittteDoe, they acquire lamb from mow of tW m«*n of the 'wrl of Cbestar; Cbay aaak ilw earfa and thv king's. The abbot jooniaya to England and from iho CorMiueror a liberml charter oooflrmiDg ii»a gift* oonftrmatitios of his barons*. This is no sohtary plseoooi
BoD ol I K4«. L m. U. m. 91 1 HoU af > U«. h m. t. ■« ska lk» « uMu ia Y. B. St-M B4«. L ^ »t aa-4 B«v. L p^ Nt. 4n. ' W»1U, D. V. O. Ti. fl7-».
• 6m Uu! Uw ueribsd to CobdwI tL Is It O^ Lmw, li M >■« Uh Omsi tiiuo Lolhuii, tbid. M : BittklM. Asoska. BL JUT. T^ f Mlsfj koilM ^J lbs ivsUih Mumj MMB to hsTO hiU UhI is Ihs rMft Iks «m ilia Iftwty Ums ns Ml to y« by mtimm uiJJssinsi ; Uk. Fnd. i smi ti. is ; II. sMiv. M 3, I. Fiw Wmmm, m» ImAmitK MsbmI is* faWKAUM. m i twMJs. BUolM «s 4tat» teaoato. tU.
• Bm sbm^ pi •, Bsto t.
• Ovdsfk, tt. U M. 8« siss Qsrtstein d> l^Msps im b Byato T»i^"
• <Mato,W.ia.M.
1
J I
CH. I. § 9.] Restraints on Alienation.
341
Eveiy collection of monastic charters tells the same tale. No gift, in considered s«fe until it has been confirmed by the king and al! who stand between the king and the donor*. Often the donor's lord joins in the gift itself; it is made anmmUe liamino mea. concedente domino tfieo', still more often he con- firms it after it has bc«n made. What is more, he sometimes cunfirms proapoctivply whatevor gifts any of his men ma}' make lo the favoured monastery. For a while we Ho not hear much ^a2S) of money being paid for «uch confirmations ; lands art^ plentiftil and lords are pious ; but already in Henry I.'s day men are paying for confirmations S and now and again we read stories which seem to show that a lord would sometimes call in question a feoffment to which he had not consented*.
Bat considerable care is necessary in drawing inferences pik-'imIou from these documents. Most of the verj- early chartent that cbari««. ffe possess relate to giils in fraukalmoin, and, when examined, thoy will often appear to be confirmations and something more. In royal confirmations it is common to find wordfl that are Dot merely coufinnatory. Sometimes the king denounces a penalty, a forfeiture of £10, against any who shall disturb the donees; often he wills that the donees may enjoy 'sake and soke * and other liberties, which, at least in his opinion, none
* For Normmn tastances see Orderio'a chroujcle ; Eogltflh inataaeef tra to be (ooiii) »*«t7wbere.
* Pipe Boll, 81 Hen. I. ; flnaa ar« paid, p. 34, ' pro cooccMioiM torrao quRm H. de L. ed dadit ' ; p. 46, ' pro ooTkoeosione lerramm qou epiaoopoa ei dedit ' ; p. 7S. ■ (ri Labeat Wrram quain abbas de D. d dedit ' ; p. 91, 'pro ooDoMaiooe Urrae qnam tenet da H. SUo R.' ; p. 96, * pro conoeask>ne t«iTa« da qoa. B. da B. «am beradiUTtt': p. 105, 'ot rax flrmet io cartha eoelMiae laae d« K. omnes na tpaa eomet de Warwie v\ d«dit a<l opom eiuMlcm vooli'uiu; ' -, p. lOb, 'pro cod- oeaaioae lorrae .qtiam ootnca de Wftririe ei dedit.' To jad^e from the later Ptpa BolU, it would aaam a« if tba king for a whita abandoned the attempt to naka a ataady revenae out of hii confirraattonn ; bat wo may not be cnutlpd to tlib Infiaraiea. Chron. de Uelwa, t. V21 : (he arobbiehop of York oirc. 1 IBO takoa 40 marks tor oaoflrming a tenant'K K>ft.
■ for Ter7 tAxXy oaaea im lilBt. AbinRd. ii. 7, S. 9. The abbot itivaa land to Bobart o( Oailly. but, repenting blmaaU, ia able to aat back the land bucaoae the kiac haa not ooaflrmeid the gift. Then h« bought Nuaeham from LcofwitM and, rfM* ^>a OotiqQerot was in Normandy, procured and paid for the aiiient of Odo flf B^ywm who waa acting aa rvgnnt ; but lia lost hi»i roonoy, for lh(> king having fOBmUad with Odo gtit the land to another. UofuH peremptorily forbida the abbot of Baauey to alienate any part of hie demaaae ' withoot my lieenoe ' i Oart. Bama. i. 294. lu John's reiKo llceooea to mortgvi* beoomB oommon; HeC Fat. 1. S, 4. 7. 59. See alao tba matKlata la faToar of the bishop of BIy, Kt.i7.
342
Temtn,
[bk. n.
but he am fpvnt. Then agun. woids which look OMfvl/ eoDfiruukiory, demotid it careful chticiitm. Fur *p***>r* if B b'llfljt of A by kDigbtM sorvico aoti vnlvoAi the abbot of C in fr.-i :>ItiiK, thun, when A oonfinni) the gift, wo muat bo diligont < - whvlhcr ho werraa his right to rjuct tbe Miriea
^lu ihr Uiid, or uiic« woitls importiag that th« land it to be fraolulinoui, not tnoroly a» betwmm B and the abbot, bat vno aa ngarda the ooofinuor hitnst'lf. Tbu^ Ui taJto a red eiampU, when Robert carl of Gloucester confimji a gift which otw of hU lenaota ha« iDado to St PeU-r'a Abbvy. he oddit ' I will that the > xt mid BDonka hcAA the aamc frovlj, 4uit)lly and boouarably in frftokalmoin for ever'.' Such wonU, which are ret7 omubcmIj foood. will in all likebhood debar Um enrl and bin beim from aver exacting any ■erricc from thia Und. Indeed in Bmoftoo'o day a lord coaflnning a tenjuit's gift had to be extmnaly cautious if be wished to retain the serTice due from Um laad; if B who held of il at a rent of a hundred ahiUingi onleoAd C at a rent of one shilling, the mere word eomjirma used bj A might, if unexplained, d^irite him of ninety-aine ahillinga a year*. Again, at leaKt in Noruum ducumcnta. there i» much bo sqggeet that a nibinfeudntiao effected withiKit the lanJ'» eoneent waa neither void nor voidable by the lord ao lol^ m the tavtnc acignory of the donor endured ; th« dofbaa** dBafV Uy in thi^ that by the doaor'a fbhmy or wasl of hdn Ail mugaary would escheat and th« dooorV lord wnuld than be able to avoid the gift*. Again, we mtist rt-uimHc that in thia cootart KtUc ntrcw cnn be laid un conArmatiuna whun the ooofimer ii the king, for, quite apart fruro all fonda] tlMory. a royal chertar wa« a rcry efficient protection against litigataoo. Wbab ooev micb a chartur wiw pruduood by tbe peraoo tn pomamiim, IW king's juBtiooa would stay their handi ; they woaM prooaed •■ ftirther rtge inconnUto*. Wo find too that retigiooa
' Cut. GloQO. L tl9 ; U. Bi. Bm Ih* iiliaiMlliiis bj ttfl Chmtm ID UiM. AUm*- U- M.
> Brwioo. I. 31 l>. Th»fmmmi*»a'mUtttm,'
• Sm f^. Onterio, U.i*0: m\mA MoAnM kk ■aaV ftft *• lb aUi^ md aiit dwi If lb* mu br M5 arinm ihsU loM hb faa f/tm^amU aW ak-urk ^ ^ Is kMp lb* bad Utki hM teM ittw hi U. Am klM Arta fTvdtO. ft- W. TUi Tf*« of te mUlm m«b« lu ha«« bMoaM •! MM la Ibi hMH7«ia«ttiih !>*;«• Bom. Ml-I. Bm sIm auhildi. P. E. O. ^ Wl. seU M.
* Biealoa. t Ht b. I« IMl Ikk had •OMM of Joitio*. sad •« MteMM >«■ oMa* to Dm Ait Iks* a fi^a <
Jim
CH, I. § 9.] ReMraints on Alienation,
343
uot content with one royal ooniirmatioa ; they obtain a frcah charter from each succe«eivc king, for, be the law what it mny, no prudent man will tru»t to the king's respect for hiu ancestor's prouii8c& Laatly, to complete the picture, wo may add tb&t the usual practice of the monasteries was, not to apply to the king whenever they received a gift, but to wait until they had a considerable number of gifts and then get all of them con- tinned by one instrument.
In the teeth however of the long series of diplomata c*mcia Htretching luu'k to the Contpiest, and in Xormandy beyuiid theuieUwof Comjuesl, some of which dual with cases in which tht: donee is niL^*. a layman and the confirming lord is not the king, it ia quite impoi^sible for iih to hold that the restriction expressed in the charter of 1217 was a new thing, or that the free alienability of 'the fee simple' is the starting point of English law. We must be content with a laxer principle : with some such idea afl this, that the teuaut may lawfully du anything that does not Mf>riou8ly damage the interestji of his lord. He may make reasunable gifUi, but not nnreasonable. The reasonableness of the gift would be a matter fur the lord's court; the tenant would be entitled to the judgment of his pceni. The charter vf 1217 is a fair, though a vague compromise of oonflictiug claims. That it should have been ao favnurable to the tenants a& it was, may fairly surprise us, if we have regard to other ooiuitrios, and to the extreme severity of our English law about reliefih primer seisins, wardships and marriages^ But the
aonfttnuUian tboold oot atAjr the acUoo, onleaa Ibe charter wiui ao worded that 111* fcing wonld be bouikd U) give an excbaoge to the donee in cue ol his b«ing mieted. At lewi from John'a tmga onwu'dB royiU eonfinnationi wen oioaUj •0 burned Out the lung waa not bound to ^xe an exchange. He wonld be w boBnd if be nimplj^ oonllnned ' the gift of A. B.,' bat be wa* not lo boond if he aoofirmad * thu r«a«oiiable {i.e. lawful) gift of A. li.' : in the lalt«r c««e be ooly conflnned tbe t(ift in so far lui it wm do wrong to any onv. Par Uiiii role aee Btmflt. C a9 b; and see Kol. Curt. p. 79, where it U noted that b; special order of King John the word ratiomhiUur was omitted ttom a oharlcr of oonftmatlon. Aa to the ipevial ralae of ro;al oharten even in tbe wont dafa of Uu Vi4D«h kiogihip, aee Loehaire, loatitutione mooarBhiqnee, i. 117.
' Tbe Prraoh teignenr, who did uot osnaUj gvt a relief from the boir, if the h«ir wu a descendant of the dead man, did very generally reeeire a An« wbea yMlCDCllMOtWBa alienated, ooder ooeh namen a« htdt tl ptnUt. quint el rtqninl; also be bad the rrtrait Jfodal or right of repnrobaaiDg within a otrtain limited lime tbe land void by hie tenant el the pcioe glTen tor it. For Normandy, aee Trte anaieu cuututnivr. o. u7, t)9-Ul : Somma. p. 96; Ancivnao oi>atame, c. 39; on lb* (aoa of tlicao t«xtii, Norman law eeeins to grow more faroorable to the I durliw tbe thirteenth oentnoTt
U4
Tenure.
[bk. n.
Nomuin Conqnat mtwt for m, while h&To fiivonrsd ' fine femfe in Ud(1 '. WillUm. whfio be ooDfrm-d the forFnt«d asUtat at Y.nf^Vinh fAfls ami thogns im hw Kn-nch fnUowem, mtni hare knuwu and iniutuJcd that th<;rt; Khuutd be •ome remaonahU amount of nibiafeiidAtion. Thia mm Abnolotely required by the itow military Rystem ; the cnant or hnroD inu to haw knightii U> follow hia banner, and thu wrvicet of knighu amid onljr be Mcurcd by feoffknenta. For a long time it would be poarible for the TOHals to endow Bub-ywHwIii, for the Mib-vaflMle {^« to endow other Hnb-vamals, without any lorn boinff inftietcd on the great lords or on the king. We must odd to thU that for « full century after the Conquest, denpite nooMonal qoafreli^ tk« king waa in cJoae league with the chnrdi ; aa againit Ua leo rebellions barooa he relied on the prelotea, and the firelaiaa of eonne deeircd that men should be free to make gifU to piova uacK. And junt whpn thn intenwtn of the rhureh as on aoqoiner of land wert' beginning to come into mtiuiu conHict with the needs of the state, the function of declaring the law <if Boglaiid waa being committed to a group of profeMdonal lawywre who for aeveral reaaona were likely to favour free aUanatiaa. OAc« they were eodedaatios ; always they were the ktag'B and aa anch inclined to loosen the fewlal bond whenever ooald be done wilhoat prejodtoe to their maaiet'a rigkla Bal, beaidee all this, it aeoma elcar that tacnl/ aa jnnaUi and mH oooiideimtjons of political expedietxry apart, they were diapoaed to concede to every tenant the fnlleat puadble (mwvr of doaliaf with hia land. Jnst when they were deeiding that the ontwan Uw put no restriction on this pawiTr in fiivoar of the lord, thej ware rapidly and finally desln>ying tho mtnctions which exiated in fovoor uf tho tenant'* expectant huiia. Thia will come before us bereafUr, but iihontd be DeUoed m tUa oontciL If the English lawyers ore shutting their eon to Iha doima of tbe lords^ they are shutting their eon to the chuna of the Idndred abo, and thia joat at a tiae wb«i in Ntnaaady And other countries the doims of the lord and Um daiaa af the expectant heir are finding a formal mngnitiuo in the juriaprudeocft Whether we ascribe this resalt to lb* oooiauM matnrity of onr aywtem of rajral juaCiaa, or l« sa eame deep-aaaied in oar aatioaal character, we miMl leak thaaa two ha» tAgetber>--if the fiigUafa lav knvwa /iodtU, it knows no rttraii li^fwigtr.
I who for '
sTcr tbia^l ba Bat. ™
en. I. § 9.] Restrahits on AUenation.
345
Ad regards the form that alienation took, subinfeudation i<«a<u form wtts certiiinly much commDner than substitution. Still we find liun. the latter at an early date, if u<>t in charters, at least, in Hne^ levied before the king's court Not unfi-cquently in John's reign one party to the transaction grants a tenement to the party to hold 'of the chief lords of the fee^' It is not posflible for n« to discover the real meaning of such a tranmction. an we can not alwa\'s tell whether the fine is the settlement of a goDuioe dispote, or a mere piece of convey* ancdng machinery; but it seems clear that fioes were levied with little, if any. regard for the lord's interest, and that their effect often was to give him a new immediate t«nant of the whole, or even (for so it wuuld seem) of part unly of the teDement. As regards tnodeH of conveyance less solemn than a fine, had it not been for Bracton's distinct assertion, we should probably have come to the opinion that n now tenant, oven of the whole tenement, <xiuld not be forced upon an unwilling lord. Whether we look to collections of charters or to collections of pleadiugs, we find the lord's consent frequently mentioned* ; indeed sometimes the transaction takes the form of a surrender by the old tenant to the lord and a feoffment by the loni of the new tenant. When about the middle of the twelfth centuiy Reginald Puer sells land Ui Whitby Abbey, he resigns all his right into the hand of Roger Mowbray to the use (ad opus) of the monks, to whom Roger gives it, putting them in seisin by the same rod {lignuin) by which the resignation had been made*. When Alexander Buddicombe sells that fifth part of a knight's feo which he holds of Hawise Gumey to Thomas Fits- William, ho 'demises himself in Hawise's court and renders the land to her by the branch of a tree, whereupon she gives iMtliin to Thomas by the same branch*. Still there are Bracton's plain words : — albeit the tenant has done homage (and this of oounw makes thf> rase extreme) he may put a new tenant in his
place, and the lord must accept him, will he. nitl he*. Onenl'1!
* ' RttmmiT
To sum up the whole of a lengthy argument, the sound wb>
■UMwtkn » FbM. od Honu-r, .. 8'i. 54. 110, 116, 135, 188. 8M; ii. 59. ISitt.
• KoU Bunk. pi. 637, 779, 047, 984, 1616, 1934. ' Whilb; Out. t. 903.
• iladox. FormulAn, p. S4. So T. de O. and bin wif« hftvinR Mid lutd Xo th* fthboi of Mnai eomader it b.T the rod to tba ooani of Aomil* in hla ooart (lx. 1100-1199). Chron. d« MeLu, i 165. S34.
• Unotoo. t SL
Tenure,
[bk. n.
ooocliuioD noems to bo that, in treating U» nuuter •• of ponilj EngliMb hUtory, we aiiut Htart not from ihr »faHilot( iuUtaftbility of ' Lho fi«f,' nur frum thu ttb*olut« ■IwnahiKljy 'the fiw aimpio/ but from Muiuthing iDOeh Iom iliiffcdtety,' au indctcnniiuito right of the lord to proveot alicnuUaocw wlucb would M-riotuly tmpur hia tntennt*, ■ right which might iwaun iu abeyMKW bo long aa then wm plunty uf acofw tur Ol wbitthydatioo ud tbo liberty of eodowing churchui wu dm! BbtiMMi a right on which the king's court waa eoldom if airar callad apoQ to pronounou. since the lord ooald aa&tcv it in Ua own court, a right which wa» at k>ngth dftfined. tiMOffa in looao tcmu, by the charter of 1217. But very ivobaUy ihm Idng'i lagal poMtion wan fn>m tho 6rBt UKetpfitmaK and iH oartainly became oxceptiuual m ihu eoane of tha thiila—lh cantury : with no text of law to rely upon but the chartar* W SOQOaeded, undar •uvea of pocuuiary iruubltai, in gTadaally MUbliihing a right which could not be juatiAed by tho of that instromcnt. Otfu ^* That wo may be right in taking as the iitarting point of tUuI!* ^* principltiM M vaguv as tho«t> jiut Mat«d. nay appear rmMsAti ihiM, ihut if w« oftau 6Dd a lord oooAnninfr Ub tooant*'
hit ntnrl J..1. .- *. 1.1
wo Homeiimn find a luro ooomitmg ur pruftwiiig to oooaal&i
hia tenants before he makao a fuoffmontw Whan Anfanry da
Vere gives taod to the Abbey of Abiogdon* * aU kb
are aaid to join in the grant' ; Earl Hugh of Cbaatar
with 'his barons' before he makes a simikr gift*; Boger da
MerUy when be endows Newminsler doss so with the ooatm/k
of 'hi« mon**; 'the kuights' and the 'good men* of tbe abbe*
of Abiogdoo give tboir ooosent to an crxdiaiiga which he is
Budcittg with one of his tenanta*. and so tbe abboi of Hsiaasj
by the cuuowl of his banns rvtaina the hocM^ of Robert
Foliot at the cost of two tbousaod eek a ymr*. Badi iMdal
gnnip strives to bo a little state; its niler aod his sabjeula
alike have an intorait in all that cuocems its tecrilory. BtiM
this notion, that thu lunl ought to hold a pariiamenl beiH* ha
makes a fooffment, oerer hawjens into bkw.
Bot now another qoaition arisss. Can a lord dispasa «f his rights OTor a tanant and hi* tcneaant witbont that
* BkA. AUi«d. u. H<40.
■ NvmakMlw can ^ >. •Gart.BMM.1. IS.
CH. I. § 9.] Restraints on Alienation. 347
consent? We will suppose that A has enfeoffed B who has enfeoffed C, and ask whether B can, without Ca concurrence, either put X in his (B'a) place, so that C will hold of X who will hold of ^, or place X between himself and C, so that G will hold of X, who will hold of B, who will hold of A. Now here we I have to consider two different difficulties. First there is what we may call the feudal difficulty, that of giving C a new lord, of holding him bound to serve X when he has contracted to serve B. Secondly there is a difficulty that is quite unconnected with the nature of the feudal bond but may be thus stated : — Every gift, every transfer of rights, involves a transfer of seisin, of posses- sion. When a tenant is to be enfeoffed as a tenant in demesne, then in order to complete the feoffment it is absolutely necessary that the feoffor should deliver possession of the land to the feoffee, and this act is performed on the land; the feoffor solemnly puts the feoffee in seisin and then quits the land. But there can be no such delivery of possession in the case that is under our notice ; C is tenant in demesne ; it is not intended that X shall become tenant in demesne; B and X have no busiQess to go onto the land and disturb (7 in his possession ; what is to be given to X is uot the right to take the &uits of the land but the right to Cs services. We can not in this place discuss this notion that a gift or a transfer of rights involve-s a transfer of possession ; but it is deeply engrained in the law of the thirteenth century. It would seem then, that the only mode in which B can complete his gift to X, is by persuading or compelling C to recognize X as his lord. When such a recognition has taken place, then we may say that A' possesses the object of the transfer; he is seised of C's services, he is also seised of the land ' in service ' (seisitus in seT^itio). The two difficulties then, though in a given case they may conspire, are essentially different; the difference is brought out by the question: Has B any legal process for compelling C to accept X as his lord ?
According to Bractoii, wo must distinguish. If C has done L»w of homage to B, then C may, for good cause, object to having his mem. homage made over to X. He may object that X is his enemy — a light enmity siiys Bracton is not a sufficient cause — or that X is too poor to fulfil the duty of warranty, or again that homage is indivisible, and that he can not be bound to do homage to X for part of the tenement, while he still holds
MB
Trnurt^.
[bk. il
tfa* other put of B; but unlaa saeh eaaae u •hova, (7s boinagv can be tnuuferred to X. As regmnk the Mrrioe d from the teneineot, u> dbttind from houuige, thi* out ahrajs tnuuHBrred, even nf^ninn the tormnt's will; the coart has m prooMM for oampelling the teii&nL to ackunwledge that h« boUt of tho new lord; it hiu a prooew for 'attorning', tie lumitig ofvr, [M the tenant to the new lord'. He givea a caae from ISIS :— X demanded homage from C, raying that B hail atton»cd C» homage and ftervire to him, X ; thereupon C* wd that he bdd nothing of X and that ho would not dopart from B who waa hia lord ; then S waa summoned and fttated that he httd owd* thai gift to JT ; bnt C tttill objected that be held two InwiaH of Bhy m single homage and HerviLi.*, nnly one of which taocnwola b»d been given to A', and that he would not divide hia hnmig«i; wbereopon the court udjudgMl that X >th<uiM have seiian of (Ta service, but that C could not be compelled to do homagi> to X. Serviee, laya Bntcton, can alwayn, but homage cnn not always be aUoRwd'.
It is Hcmicwhat otmmin. ah nnticrKi above, that Braetoa should allow the timant to object to hiit homagv bring timna- liirred. for he does not allow, at least t<xprc«Hljr. may Nmilar objection on Lfae part of a lord whose tenant deairea tn pat a nrw tenant in his placet. Poonbly the neoeanty for «■ Attofs- mL-ul, which ivally rested on quite other gnxuds, kspl ainw one nde of an ancient rule while the other side had vhbscwd. Bat Bracton in very fiivuarable to tenaota, He hnUs. for OJUUDple, that tho tenant can always waive or rtmgu kis tenement and so frae himself from the dntisa tif flarriae mmI henags, while the loni can ni>t woivu tho homage or reftMt Ike •orrice, and eo ft«e himeelf frrjm th« duty of warraaty; aad the tenant may tibject if any attempt be made to eabetitqw mm insolvent for a H^lvent warrantor'.
On the whole we have little renaon to floppoaa kkai rights of the tenants had ever in this oMmtcy bMO a
> in ihii ■(« It te mUmb nU iImi Hm ImsM sUasai tW n«w lord : Um oM lori. or Is mmm osms tlM wart, sMkm IwswmH taasal I* IW o«w lord, or sUocbi th* mnim ■»< hoMsgs to Uw
■ ■mtaa. t «1 b-M h. BMsk»T.B.I»^M«.L^«.
•■taitaB,teek.slKMt|ft- Bsww. If Om hW «w I
VBBBSbte to VMTSM ihs iMIAMi, hi «S« sDoVlJ to
Ihi tHSSt Iha WU Of ihi ant tori is Uh
OH. I, § 10.]
A iris.
349
obstacle to alieuatious by Ihu lunlii'. Iii ibe chai-terH we tiud the lords apparently exercising the fullest power of giving away the hcMiiages and the services of their tenants. If there was any reason to suppose that the tenant would object to recog- nizing a new lord, then a fine would be levied, and the tenant would be called on by a writ known as Per quae ^ervitia to show caiuse why he should nut be attorned*. Fines tranMferring ■ervioes are quite cotiinion ; the subject-matter of the transfer is usually dcecribed as the service, ur the homage and service of such an one*. It would be a mistake to suppose that the lofty feudal ladders that we 6nd in the thirteenth century, had been always, or even geneiaJly, manufactured only by the process of adding new rungs at their nether ends ; new rungs were often inserted in their middles.
Aids.
The duties implied in the relation between man and lordDntrof are but slowly developed and made legal duties. There long (orJ/* remaioa a fringe of vague obligations. The man should come to the aid uf the lord in all his necessities ; the man's purse na well as his body should be at his lord's disposal if the lord ill in a strait. Gradually the oocaeions on which an aid of aioney may be demaudod aro determined. Glanvill mentions the aid which helps a lord to pay the roUef due to his overlord, the aid for knighting the lord's eldest sun and marrying his oldest daughter ; also be raises the question whether the lord may not demand an aid for tho maintenance of a war in which he is concerned ; such a demand, he thinks, can not be From the Normandy of Olanvill's time we hear of
* Ift 1180 B. dc C. fined to Uie king ' at Sjnoo dft Beteampo donioDs sDOii WHi 4mm Mrritiam camn oin ooaosMD mo ' : Pipe Iloll, 31 Hui. 1. p. 68.
* Mom Book. pt. 880, 889, 699. 598. 627. 948, IGti. Tli« Unani wbo wUl vA attom em he wnt to fitol : T. B. 88-5 Bdw. 1, p. 317.
' Viom, ed. Haot«r. cjf. 61. 65, 77. 109. Wheu tlie teiiont himself id spoken «l H Um mbjeot of th« Iranafer, be geaorvll/ i» a twuuit iu villoinofv ; bat il moM In null to draw this inrcrauM ia M oaaea. 8w eg. Chrou. de MbIm, i. 176 (b.t^ 1160-73) b giU of » balf-carucate And ot Gilbert son of Bicturd, who bold* tba Und, mtb liu wife And their cbUdien. Wballe^ Cooober. 1. 6, 7 : « gift ol Lrring And Q»j fail brother nod their heirs, wbo Kem to be freehold teo«nt« of ibv doaur.
* tilao*. is. 8; ' Utnuo tbto ad gaemun laam mBDutvnmdMn poHini
db
850
Tenurf.
[nK.lL
the ftid ibr the lord'* relief, for manyiog Us daiighMr and knighting hu c)dc«t mn*. The charter of 1S15 awHiontid m the ihno nidit, which the kiiig might Uko without th« ouauaaa coiimiel of thf i«A)m, that for rodtf>tning hiii borljr, Unl Sat UiMnying hwdAnghtnr and that for knighting hi« loa; Mid wudk aidit worn to be n^awmable*. Aa is well known* ibm ckmm which dealt with this matter ^ipeared in no later MKtioB the charter. During John's rctgn iha prior of 8t Swiihm' took an aid fron hin freehoMere, fiurnrm and villein* for paymont uf his dobto* ; the biiihop of Wincbuntor Ux>k ab ai4 for the expenaea to which ho had bc«n put in tb« mainfnaBO» of the king's hooonr and the dignity f>f the church*; the abfaol of Peterborough took an aid to enable him to pay a fin* to tlw king*; the r-arl of Salisbury to coabla him to ntock hia Uad*. Nor do BDch aids oeaae with the year 1315; in Heniy nX.'i reign the bishop of Bath took an aid for the support vt his knights in the king's sendee*. In ItXT, after a Welsh wir, the king's miliiaiy tenants who hod done their serriee raosivBd permission, not only to oolleet the scutago from their kn^hlik bat also to raise a reasonable aid from all tbeir free omb*. HoweTer. the olauae expunged from the charts seems praob* cally to have fixed the law. We learn also that it was oeil to impossible for the lords to oolleet aids witfcout ohtatans the king's writ and the aharilTk awii^aiiea. That writ woaU name no sum; the aid was to be ' reaMinahlc* So 1S3A we sec Henry Traoey, having fini obtoiDsd tibs writ. hoMing a little partiaroent of hb kaiglita in Daveaakii* they grant him an aid of SO shillings on the knigbl's t» ftr the marriage of hia eldeat daughlor*. Bracton ipsaka of tkasa aids as doe rather of graee than of right ; ihey an the o«W oome of a peivonal not of a predial obligatioa ; they a» aol ta be reckoned as ' servioes *". This is the ancient theory ; bvl it most already havo been ofaaolesoenL A siatato uf 1X71 ftxed the rate of the aii) to bo taken Ibr mariyiag the eMsM
4aaiiBl hoiOMMdi miIU* nigtn qaswo. OMsrt isli «w4 ■■■ |iH ad U iMMlH AMrinpss 4s hna, aW ^Mlnu bwra ntlal.* U Uw* pM fiwrra MM lHs41y simbi s maUami Mar.
' ■»--■ ■— ... .- - — ^^ ^ iri llSIWBI IIWULl
'Bei.l'sLp.at. *Bol.CLL«. *IM.a.tlfr.
' But. a. L SBOl • BsI. CL 1. Vn-U * Nal> BkA, fl. IISL
CH. I. § ll.J Escheat and Forfeiture, 351
daughter and knighting the eldest son at 20 shillings for the knight's fee and 20 shillings for 20 librates of socage land', and thus in effect destroyed the doctrine of the lord's need and 182] the tenant's gracious help. This statute bound the mesne lords; a later statute waa required to bind the king'. The constitutional side of the history of aids we need not here discuss, but the aid is one of the most widely distributed of the feudal phenomena*.
§ 11. Escheat and Forfeiture.
In the bfickground but ever ready to become prominent Escheat. stands the lord's right to escheats. This forms as it were a basis for all his other rights. The superiority which he alwa3rs has over the land may at any time become once more a full ownership of it. Though he has given the land to the tenant and his heirs, still there may well be a failure of heirs, for the tenant can not institute an heir; only God makes heirs; and in this case the land falls to, escheats (excadere) to the lord. Already in Glanvill's day a lawyer may sometimes speak of the lord as the tenant's vltimxis heres*; but such a phrase hardly (.'xpreasea the law. When land escheats the lord's superiority swells into simple ownership; all along he ha"* had rights in the land*. Nor is a failure of heirs the only cause of an escheat. If the tenant is outlawed or convicted of felony then, after the king has exercised the very ancient right of wasting the criminal's land for year and day, the tenement returns to its lord. A distinction is established between treason and felony ; if a tenant commits treason all his lands, of whomsoever they were holden, are forfeited to the king, while the felon's lands escheat to his loni. How far back this distinction can be traced seems doubtful ; but John and his successors apparently insisted upon it when they enriched themselves by seizing the terrae
' Stat. West. I. (3 Edw. I.) c. 3fi.
* Stat. 2.> Edw. Ill, Btat. 5. o. 11. Btubba, Const. Hist. ii. 521.
' Sc-e DiicanKe, b. v, auxUium ; Madox, Exchequer, ch, xv. g 1 ; VioUet, Ktablissenients, iv, 18-M ; Lnchaire, Manuel dca institutions fran^aises, 20fi.
* Glauv. vii. 17 : ' Ultimi heredes aliquorum flunt eorum domini.'
' Urarton, f. 2!»7 b (lai^t lines), distinguishes between cases in which the lord who comes to the land by escheat can be treated as filling the place of the tenant's heir from those in which such treatment is impossible.
95S
Tenure.
^m.
JfatMuwonwH^ tho English tands of tboeo who praCinvd to be Krvnchuitiu mthor ihou Eugluhuion when the netonm of Philip AiigittftuD foroctl upon thrin the ohoioe betiirc«a t«« UAiioriAlitic'^. Aa ruganU folouy, wu Imvc seen that the idaa iiiiphfd by ihal term bed be«o cheDging; it uow atood far ' Ht'riutw crim-,' ii hod oDoe stood for * breech of the feadal beoi' On thn OIK- blind, ibu torde bed gained ; thay got iwjIiMie if their UmaoU committal Kuch cmuoe aa hotuidde or iheft; m the other band ihoy had loeU By opooly diiftvowing hie Ion] the iciiani might indeed lose hu» lencmont; even in Braeloa'e day Huch a diaavowol was M>metiuiQa called (elonioos'. and ia much later times a disavowal and a ooneequcnt forfatture might be found io the &ct that the tenaot had paid his rrnts or dooe his hpmago, to a wruugful, instead of to iho righirul, elaimaiil of tho wignory. But, on the other hand, the lonl stwma t» have bad Tery little power of ejecting a tenant for the bmi* noQ-pozfomiance, t:ven thu wilful and pnitncted ooa-perfiifm* anoe of his scn-icua. This ie a matter which rL<quires cxaininAtion. Lorim In Bracton's day the lord when the aerrieea an in
M|iiii bas three counee open tu him. (1) We may nicntioo Bmt— SUS!^ Chough thw is nut hi» readiest remedy— aa notion in ihtt king's OfHirt fur the rocorery af enaloms and aarviees. This is a loboriunM action. It i» rvgaidod w propriatary, nut A lord will baidly use it unleei there is aome di^Mte bet^ hiro and biii tenant abont the natore or quantity of the In thitt cuwj it will cimcluairely establish the luffd's title, aad the victorious lonl will have the shefiirB aid in disdniniif for the arrean. But, nnlew thera has been sucaa diiavpwal of the tenurv rm tht* tenant's pari, there is no actMsi in tW king's court that will give the lonl tke Uod in FmfTon and feiifTees are indeed frea to make tka batgoiu that if the aervioea are in airear the Jboflbr may eataf onoe mare on the land aod take it to himself; but «r shall see few Hurh bargaitu mode belbra the middle of tb« tkir^ t«enth century'. Such then is oar ooeimop Uw, and it is
) ■iaakoM.iLfllL
«HM. AWi^lLfuM^ghssfcamfc M la s Inteam ta Im 1 bai Mik ^i te jmg% mU sbost IMOi 1W oT Ibiir emirta.
VB^m
CH. I, § 11.] Escheat and Forfeiture. 353
Horthj of remark ; it does Dot turn out the tenant from the Hbid because he caD not or will not porfomi bis services. Two ^^tutes of Edward I. were required to give the lord an
ampler remedy: — the action called cessavit per biennium wan i] inveuted ; if the tenant allowed bis services to fall inU) arrear
for two years, the lord might claim the land in demesne*.
There can. we think, be little doubt that this new action was
borrowed immediately fipom the canon law and mediately from
fe legislation of Jtistinian. It is one of the very few English tions that we can trace directly to a foreign model'. (2) The lord's handiest remedy is that of distraining hisEHitnw. tenant to perform the services that are in arrear. This means that, carefully obser^'ing certain rules as lo when and where and what be may !«eize, he takes the chattels that arc found upon the tenement and keeps them until the tenant either tenders the arrears or finds security lo contest in a court of law the justice of the seizure. The idea of distress (dis- Irictio) is that of bringing compulsion to bear upon a person who ia thereby to be forced into doing NomL'thiug or leaving something undone ; it is not a means whereby the distrainor can satisfy the debt that is due to him. He may not appro- riate the namium, the thing that he has taken, nor may he II it; he must keep it as a gage (vadium) so that the )n from whom it has been taken may be constrained to form his duty. This right to distrain for services in arreat in the latter half of the thirteenth centur)' a right that is sly exercised by every landlord, and he exercises it although he has as yet taken no judicial proceedings of any kind against his tenant. Neverthele.ss, we may see much to make us think that this power of extra-judicial distraint is not very old. Brecton speaks as though it were still usual for a lord to obtain a judgment in his own court before he distrains a tenant into
^ > 8Ul. Qlonc. c. 4; SUL Westm. U. o. 21 ; SecoDd Inatitale, 396, 400. €dB> 9mj9 that h« hkd 'nftd uDoogst uieuat neords' that % eiuavit waa bfooi^ ID the reisn of Kinji Joho. We luve foaad no trace ol ftojr loab letion
^^ ' Blkokatone, CommenL iil 232. In Cod. i. Cfi. 3, JoUinuui UfK dovo the
^^* tfau tha tmphyuutn wtiow rent is in Airear for Uine yttn tomj be qeetod.
b Nov. 7. 8. 2. the period of thne yeut i» out down to two jmm whara the
Jaadloid i« a ohunib. In tliis form the mie pauea into tha eaaan Uw: e. i.
S9
354
JVntNYL
p
\nft ill Um> iurilatniu •MJt.
Um perfomwiw* of Ui aemoet ; ud we msy am Uwt io his day Bome lords were still Uking thia oourae'.
(3) Thi« loads om to speak of Um pdanfailiiy of proeaadiagaj being taken in the lord's own court for tb« auclioa of the nml or the expulsion of the debaUing^ teoaat. It is ponoble that at one tame the noD'perfarniaiice of servioee was ngardcd a« a sofldeni ooueo of forlaiturcL Against any dinewaff of tlw tenant ' without a judgment,* thoiv had for a loof^ time past been a stroog fooling ; it firxbt utUrnnco in ibo mmt faxoona words of the Great Charter. But pivbably the lonl who kapt a oourt wm entitlod to demand of it a jodgmant *ab- jndicnting* fram the tenement a tenant who. aftar taSewat wanungs, wuald not render his due serrice'. Uowvrar, it that our king's court will not eaootion eo stnmg a The most that it pcrmita the lord to do is this: — aAor dtaUaia- ing the t«DAnt by bis chatteli, the lord may oblaia frun km ae^orial iribuuul a judgmunt authuriung him to disUaiB tka tonant by his land This obtained, he can aeixe the land tata his own hand, but only by way of dietraei, only as a mciw I*!* (jtinpbr nomiun), and aa a mode of oocroing tha Iwaaat. kia the path of duty. He majr take no fhiita from the laod. ha may make no proHt of it, he moflterer be ready to give it up if the tenant will aatisfy all jost demands'. Bren this is paasihie only to the lord who in great eoouf^ U> keep np aa ootirt for bis freeholden. In England the aborigiaal and rapid dogenoration of the faodal tiibunala, and tka aoee of a royal court which tloas oak lova aaigDotial jaetiw ■ecnre to the fraeholding tenant a my tight grip oo the Uad. At the end of Henry Ill's reign he ia loa wall a£ U he chooaee to let the loud ' lie fresh,' to heqi no dmnainaWa tiheHeh
• t«.B«ir.Bl|3; OtsBTtt3, ts. fj nrsnlwi.t. IW fci »s» fcsst-yLl^l^ fl70.M8.no. 1107: BI«rio«.aM.rromlBn.W»4. Oatatat w ■ aiMV «( tompaUIaf mfmtwom \a oaoil b of aevna MaaHhm aaltar-
■ mm. AUiwL U. ^ IM I m Il«nr7 L'l Ifaw a taMSrt uT tkm tikaf fa Ml Id lMf« floiMlil Ui iMid br 4dW» la sUlHwy tmvim i Wrt IIh sUmI 4am asi ISmmI to ta^mMm. Bm kba V^hm, fU^m, f^ «T. 1M-I7& 1W ^ «l IbsnssHsisaitoriMv UMlvfMlBlbsmttMfMnsf Besffr IL « toHsS seeM aa* W <»f |i»J ol hfa haJ fcr uaw Hftowrt <l wi*. la sUw Mwa • ffsflual to ptHbns mBUarj tanSm «oal4 ham laM s Mat sfvnaA Is s M«v- Uh. Find. U. fli I 'Km hi sUs laMkr fitylsi qaaJ
* OUnvill, U. c •} BtMlas. 1 tOi b; Vsto BMk, pL ^ tn^ M^ fm
CH. I. § 11.] Escheat and Forfeiture. 355
on it, his lord is powerless. An action must be borrowed from the canonists in order that he may be constrained to fulfil his engagements or be turned out of his tenement'. *] However, in the thirteenth century the possibility, never very remote, that the land would escheat, waa, when coupled with the power of distress, a quite sufficient manifestation of the idea that the land, though it was the tenant's, was also the lord's. The tenant's interest in it might at any time expire . and leave the lord's interest subsisting.
We are now in a position to foresee that of the four great Sorvey of
*^ ° the Tanoiu
free tenures one is destined to grow at the expense of the rest, tennres. For a moment it might be thought that the trenchant statute of 1290, the Quia emptores terrarwm, would stereotype the tenures for ever. To some extent this is true in law but only to some extent. Even after the statute a new tenure might sometimes be created. Every feoffment made by a tenant in frankalmoin in favour of a layman would create a tenure between the donee and the donor's lord which could not be frankalmoin, since the donee was a layman, and which was reckoned a tenure in socage ; thus in a perfectly regular way socage would grow at the expense of frankalmoin*. We have seen also that in the course of the thirteenth century many of the serjeanties were deliberately commuted for leas archaic tenures, in some cases by the consent of both parties, still more often against the tenant's will : he had put himself into the wrong by alienating without the king's licence, and the king exercised the right of ' arrenting the serjeanty^' But we will here speak of changes less definitely made. When once it was established that the little serjeanties gave the king no preroga- tive wardship, 'petty serjeanty' came to be regarded as but socage in effect*.' A similar cause gave rise to the doctrine that tenure of a mesne lord is never tenure by serjeanty*;
' The estremc reluctance of ancient law to deprive a tenant of liis tenement merely because he has not paid rent ia shown by the gavelet procedure of the Kentiah custom; Statutes, i. p. 225. After a great deal of forbearance the land is at last adjudged to the lord ; but even then the tenant has a theoretical right of redeeming it by paying the arrears nine (or is it eighteen?) times over and adding' a wergild of £5. The law does not like to say that he has lost the land for good and all, though it imposes an impossible condition upon him if he wishes to have it back again.
- Littleton, sec. Vd'J. ' See above, p. 334.
* Littleton, SCO. 160 ; see above, p. 3'23. ^ Littleton, sec. 159.
23—2
ssc
Tenure,
^waL XL
Iha rights of « nwrae lord to Lhn wanli^hip tatd nHuril^ oC hti tenaDt by scijoaoty seem to Iwtv beoomo doabtAil, wad to havo finally disapp«arad. and by thU Ihna the Icnn «Mey« (r H already coverad so beierogeAeona a maM of tcDnres that it could be eaaily itrotchcd yet a little further to aa to ioolude what hncUm would oTUinly havo called serjeaatiea*. A|[aiii. there can be little doubt that a very huge number of mtUtafj tcDuros bccamo tonuree in Koage, aod thia witboot anyiaa obaeiring the changcu In Bracton'a day thn tmt of military tasore i» the liability to icutage, and. as already eaid. the peaaint or yeoman vety often bad to pay it ; if he bad noi to pay it, this wu because hia lord had oooaented to boar the burden. In Edward L'» day tcntage wae becoming, tindor Ue grandfon it became, obsolete. There vai nnthiog tiieft ia actual fact to mark off the services of tba yeoman who wea liable to pay Bcutaga ae well aa to pay rant, from thme of tha yeoman who was free even in law from this nerer eoOaeted tax. Th« one wu theoreticaUy a military tenant, the olhar WM Dot : in thr uno caw the lord might have claimed wiTiUlip and marringo, in thr ollirr he muUI not ; but then we bava Iw observe, that, if the tc»nant held at a fall or even a sahatantial rent, wardship and marriage would he nnprvfitable right*. Tike lord wanted rent-payiog tcnaota; be did not want land tluowa on his hands together with a troop of giils and buyi with duma for food and clothing. Thus, ecntagv being extinct, wmrdehip and marriagoi ntiproBtablu, mere obtivioa would do the r«l. many a tenure which bod onoe been, at least in name, a niUlaiy lennn would beoome aocaga. Thus socage bagiaa to swmltov up ibe other tennras, and prepaimticm is already made fv llw day when all* or pnctically all, tenants wilt bold hf the homble tenore of tlie
I
§ 12. Un/tt« Tmure.
The tenures of which we hare hitherto spafcen aiw tenorea To frw tennn is oppoHd villeiD tenore, to tba free teoemeut the rillem tenement, to the freeholder (tAen taMH) the tenant in vxtteiiMga. Thia is the eootnu* soggealad hy the
I iMHsa, ft. 10. u4 Oa ^iMr^ mi^
lAi
iCH. 1. § 12.]
Unfrtc Tenure.
357
word *free'; but the terms 'free tenement' and 'freeholder* are becoming ihe ceutre of technical learniog. We may well 6nd that a man holds land and that there is no taiut of villeiuage or unfreedom in the case, tuid yet that he baa no freehold and is not a freeholder. These terms have begiin to imply that the tenant holdti heritably, or for life. Perhaps shall be truer to history if wc state this doctrine in a live form : — these terms imply that the tenant docs not hold merely at the will of another, and that he does not hold for some definite space of time : a tenant at will is not a free- bolder, a tenant fur years vs nut u fr'eeholder. Such tenancies as these ore becoming common in every zone of the social system, and ihey imply no ser\Hlity, nothing that is incon- sistent with perfect &H;e<lom. Thus, fur example, King John will provide for his foreign captains by giving them lands ' for their support in our service so long as we shall think fit,' and in such a case tbis tenancy al will by a soldier is from some points of view the best representative of the betieficia and /eorfa of past icenturiea*. But now-a-days such tenancies are sharply con- trasted vfith/eoda; the tenant has nu fee and no free tenement. And BO again we may see a great man taking lands for a term of years at a money rent ; he has done nothing in derogation of his freedom ; the rent may be trifling; still he is no freeholder.
A full explanation of this phenomenon, that a man should TcchninU hold land, and hold it not unfreely, and yet not hold it freely, *tei!£%.' can not be given in this context since it would involve a dis- cussion of the English theory of poiiscssion or seisin. But we must not fail to notice that the term ' free tenement' has ever since Henry IL's day implied posseipsory protection by the king's court This is of great moment. From our statement of the relation between the freehold tenant and his lord we have as yet omitted the element of jurisiHction. The existence
»o( this element our law fully admitted and at one time it threatened to become of vital importance. It was law that the lord might hold a court of and for his tenanUi; it was law that if A wiut IxiUUng land of M and X desired to prove 'that he and not A ought to be Jf 's tenant. M's court (if he held ^■one) was the tribunal proper to decide upon the justice of this "claim; only if M made default in justice, could X (porhape ,Aft«r recourse to all M's superior lords) bring his case before 1 Sm t.g. the ptovinon for Engelurd ot Citptgui : fiol. CI. i. 79.
I I
858
Hmmrt,
[bk. n.
tha king's ooort Thifl principlo of foodal jutttM k Kimiltod. ibauj^h iu operalioD has been hampored and coutroUcd ; in particular, the kinj; hu f^ron in hin court a poaacaaofy nmmdy td evrrjr «JMted frevhold^ir. Every oa« whoeaa m.j ibat Ha hm been 'diflsoiaod ui^uatly and without a jodgmaot of hi* ftvt tonoment* shall be restored to bia aaiain by lh« kingfa juatiea^ Tbua tb« term ' frea tenement ' beoomea the pivot of a whale aytkem of remediea Clanrl^ they ara denied to ooa who baa bean holding 'unfreely,' who baa been holding in viJteinaft; bot a doetrino of poaaeaaion now beoomaa naoaaauy asd baa many problema before it What if tba ft^eclad poaaoa «aa holding at the will of another ? Perfaapa it ia natiuml Co m,j that, albeit ho occnpifH] or ' dctainod ' ih(t tt^rment, still be waa Dot posacMGd of it. At any rmlo tfaia waa aaid. The tenaal at will toiMt nomint o/tano; pomidtt emus mmim pmrndttm; fjcct thr tenant at wilt, you dtseeiae (diapowMe) not him, bat hia lord, and his lord haa the remedy. And what of the teaant for yean 7 The aame waa eaid. Ba bolda oa behalf of aao4har ; , eject him. yon dt«»eisa that other. Socb waa tba doetrioa nf ^H tha twelfth century ; but already balora the middle of Iha Ihip- ^^ taenth the Uwyen hod discovtrad that (bey had wmk$ a mistake, that the * tormor ' or Lennot for ynwa (leaervad pavaa- Boty protection, nnd they invented a new aetwm far Um. IW aetton however wu ni^, and did not intarfere with Iha oUar aotiom which pn>t«oted the aeinn of free taaemaot; il waa toe hoe to say that the termor had a fraa taoaaMBt or waa a freeholder. ThiJt eptaode in oar legal htetory had bafionau oonaaqnancea ; it rulaa the tenninology of our law «vea a* At praeeafc day and heroafler we aball apeak of it more at large . it ia an epbode in the hiatoiy of private law. In the Ihnrtocnth century the main oontmal aoggeated by tho phrtaw *fraa laaa- mant* waa still the villein tenement* nod tanoiw ia villeMB|a is intimately eonaected with aone of the oukb praciplM af public law ; indeed froa ooa point of view it may ba lagwJaJ aa a craaturo uf tho law of juriadictkm, of tha law wbiEh Mhibliihaa eoorta of joitwo ud ■■igin lo aaeh of pmpn- sphan.
The name * TJIMny ' at once telts as that we ar« ing a region in which Iha btw of tcnore ia aa » waaUm of fca intertwined with tba Inw of penooal alatna : * viDaJMfa * ia a tanure, it is alao a autua. On the one band, Iha feMaM m
M.§12.]
Unfree Temire.
809
U] viUeinage is normally a villein ; the imfree tcaemcnta are held by anfree men; on the other hand, the villein asually has a villein tenement ; the unfree man is an unfree tenant. Then a gain.liie viUanus gets his name from the villa, and thi^ nay well lead as to expect that his condition can not be ade- qnately described if we isolate him from hin fellows ; he is a member of a community, a villein community. The law of tennrc, the law of status, the law which reflates the com* munal life of vills or townships are knotted together. Still the knot may be unravelled. It is very possible, as Bracton often aasures ua, for a free man to hold in villeinage, and thus we may speak of villciu tenure as something distinct &om villein status. Again, as we shall hereafter see, the communal element which undoubtedly exists in villeinage, is much neglected by the king's courts, and is rather of social and economic than of legal importance. ^ We may suppose therefore that the tenant in villeinage VilUia ^u a free man. What then are the characteristics of bis tenure'? Now in the first place we may notice that it is not protected in Uapro-
the king's courts. For a moment perhapti there was some little tbaUi^K doubt about this, some chance that Patoahull and Raleigh would <"°<^ forestall by two long centuries the exploits ascribed to Brian and Danby, and would protect the predecessor of the copy- holder even against his lui-d*. Tliis wuuld have been a bold stroke. The ready remedy for the ejected freeholder laid stress on the fact that he had been disseised of his ' free ' tenement, id, however free the tenant in villeinage might be, his tene- ment was unfree. A quite new remedy would have been for his protection ; the opportunity for its invention lott^and did nub recur until the middle ages were expiring*.
1 We need hmrtlljr say Ibftt the whole of tbU snbjeet w bdmirebly diicoMcd 'in Vinogimdoff'ji Vilbina^ in Engl&nd.
* The iiDportaut oMm ai« Bettenover v. Moatacute, Note-Book, p). 70, 88, •inI WiUiam Hmry'M lan t. Barttuiloiiuw Rtatae^t §ott, Ihid. pi. 1103. A* to lb* daoiiioM of Bhv) Rod Danby tmder Edw. IT., ue Littl. TeaarM, mo. 77; it iM doobtfol wbtthH LittistoD wrote thu pMnf*.
' Vlnogndoff. VUlainage, 78-81. It is povibla to regud theM decJriopi ol fllMhiill and Bakigb as beUted rather than promatarQ ; bat the formula of the SniM of noTel diawitiD layi ctrow od the freedora of tbw (eaeueat, aod lh«r*for« goea to pnn that the lawjren of Betaj IL's rsign had not lottadod to proiaet tUMd holding. The ori^iinal vertion of Masna Carta might team to gin frotaeliOD to the free mao holding in TitleinaKe ; hat in 1217 Mine worda wm
360
TrniMTt^
[bk. a
or
tmwAs mmI wkat «frtcbL
I ID HP ,
It was law then, that if the toaaut iu villeinage mm i^MtodL tMi cither by hia lord or by a third poraon, tho king's oonrt wtmld not reaton? him to the land, nor would it fpvr him damagoi a|faio8t hia lurd in rcspcxt of the ejcclnicaU He hvtd the nomww oiwao, on his lord's behalf; if a third p«fMon ejoctcd the lotd waa ditteiaed. Before tho end uf the thirloao oestury, tho king's oonrta wore bf^aning to state thtttr in ft mora poaitive ahnpc : — the tenant in rilloiuiga i« in nvr «jw a tenant at will a( the lord'.
The abade of mawing which Hach worda boar at any moment is hard to eatch. ft^r this dapeoda on Uw between the king's crmru and othw conrta. At a tinte wbtv the fcudal court* hare bacomo inaignificant, dsnial (^ romecfy in Um king't oomt will be equivalent to a denial of right, and to My that tho tenant in villeinag* is deemod by the king's conrt to bold at his lonl's will in in vffoct to say that tlta kicd will do nothing illegal in ejecting hiin. At an earlier time the ruyal tribunal wns bot one among many organs of the law, and the cause for our wonder should be that it has uadertakia to protect in hia poaswinm erety one who bukb frealj» nol that it baa stopped at this point and denied protactiaft la tboM who, alboit free men. are doing what are deeowd nBeil MTvieaa We have but to look abroad to see thia. By ila oan tor cvny frccholdt-T. though he were but a socage tenant with many lords above him, our king's court would gradtially pro^ gkiA tba notion that thoae whom it lefi onauvd fcr ««« rigfaUwa. But this would be an affair of time. Kven in tfcs ihirteenlh coniuxy, the freeholder could not always bring a iroprMtaiy action belore the ruyal tribunal without tha balp d aooi* legal fiction, and in Bracton's day men had not y«4 kth gotten that the royal romediea which were in daily oaa w«fe naw indolganoaa conredad by the prinoo to his paoplw
a
ittt«fpalatfl4, •p|*i«tiU,v ra* Uw vmj pnrpoM w4 Aovtaf IhsS kls «MS «M
eat«kd* Uw fllwrtcr. Tlw lot of ISU mts. • tfsOiM Iftsr I
■U par lagftl* latWoa «u.* Ttet oT ItlT i^s *Vi
Mli<i>Bf it UhtM taMmmU m» ml Uktrt^Om *«l Uhrru rmntl^i^mam wk
bWsI«.*
< HriUoa. ii, 19: " " 1 1 ji ill liiiwisl da
I. I. § 12.]
Unfree Tenure.
361
tai As R matter of fact, tenure in villeinage is protected, and if ^V^^^ we choose to say that it is protected by ' positive morality temm in rather than by * law properly so called/ we are bound to add uunrts. that it is protected by a morality which keeps a court, which tiscA legal forms, which is conceived ba law, or as something akin to law*. The lord lias a court; in that court the tenant in villeinage, even though he be personally unirec, appears as no mere tenant at will, but as holding permanently, often heritably, on fairly definite terms. Ho is a customary tenant, cu^uvuxriug^ consuetudinariug ; he holds according to the cuh- tom of the manor. Wore we Qcrmans, wo might say that he holda under Hofrechi, the law of the manor, though his rights are not recognized by Landrechi, the general law of the realm. This we can not say ; the manorial custom very rarely, if ever, dignifieft itself with the name of law ; but still it is a custom which has been and ought to be enforced by a court, enforced if need be by compulsory processes which will eject the wrong- ful in £avour of the rightful occupaDt. The tenant in villeinage not acniple to say that he is seised of the land de iure ' according to the custom of the manor',' though his lord may be seised of it according to the law of the king's courts. Such evidence as we have goes to show that, when his lord not coueemed, he was well enough protected in his holding, le rolls of manorial courts bear witness to a great deal of litigation concerning the viilein tenements; it seems to be inducted with strict regularity ; the procedure does not err on le side of formlesSDCss ; it is rigid, it is captious ; the court is no court of equity which can overlook a pleader's blunder and natural justice ; it aflministers custom. No doubt there are transactions between the lord and the litigants ; the lord procedural advantages for sale ; but then so has the kin^. lerre is nothing disgraceful, nothing illegal, in buying the (ht to have ao inquest, a good inquest, nor even in promising augmented price if the verdict be favourable. Theu as to the case between lord and tenant, the tenant can not sue the lord in the lord's court; the tenant in villeinage ejecte<l by the has no remedy anywhere. But is this, we may ask. a
' W« sn hm dtalin« with nortul cases. BonuttniM. u will 1m axpUiud tai our efaaptn en Jamdiction, tho lord mij luTt had M few tcQaoti id nUdnafs IbM be did tiot keep a. ooarl lor theto.
■ StlMt P1«M in Uuiorial Courto, e.g. p. 89.
8es
Tenure,
[bk. n.
•riha
mm.
Th$
tenl of legal right 7 The king dineiMt tho Evl of Okn- oeatCT; the mH has n« rvmody, no remady aajrwhera; jrM wv do nnt deny thftt tbo honour of Qlooowfeer u the evfi by kv or that in diMKudng hlro tho king will break the law.
A good pruof that tho brds in general felt theouelfee boand more or lev oooduiively by the terms of the tautree ia to be found in the care they took that thoae alnukl be reoordod. FVnm time ta time an '«xtcnc* wae of the manur. A jury of teoanUi, often of onfrve bmb, sworn to set forth the particolare of eaoh taoamiy and ilt wrdict oondeaoeDded to the smaUeet detaiU Sooh «sI«dIi were made in the inLercHt of the lords, who were anxious that all due serrioes should be done; but they imply that othsr sod greater serrioes are not due. and that the ooalaaMwy taaaaMk even though thuy be unfree mvo, owe thoae sernoaa far their tanamenta, no lam and no mora, ficatamenta to the aftd thai the feeoanta are not bonsid to do sarrieea of a partieBlar are not very unoommon.
As characteristics of villein tenure v>e have thereiiare two features: — it is not protected by tho king's oooito; is geneml it is pruteoted by another oonrt^ the court of the load, thoQgh oven tbore it is not pcoteot«] against the lofi StiD ae a matter of legal tbttor}* wo can not roganl tbeae faatona aa the msnnnw of the tenure. We shoold invert the order ef lagie were we to asy that thia temire is vtUein hmsaee the hin('e justioea treat it as a men tenure at will ; rather they treat it ■• a mere tenure at will beoense it is a viljuui, an anfras^ IspaW- Wo must look therefore in this as in other eases to the serricsa which tho tenant perform-i. if we an lo de6De the aalan 9i hm tenure. He holds in vilkinoge heeaaas he pecfanua TiQaia serrlosiL
A brief dignsaion into a doawin which helongi imihv aoooomic than to Ic^ hiatory h«Q beoomes insvitaMa The phenomena of medieval agriculture an now altimaiag ihs attention that cbay dasBmi : ban w« arc only iMwaineri with them in so fitf as some knowladge of them moat ha by any expoaitioci of the law of the UiiilesiiUl Postponing until a later time any dnhata aa to whether the
M
> II «ai ki alMM my I to ■eekSOl
I. § 12.J
Unfree Tenure,
363
•M] tenn manor bore a technical meaning, we observe that this tenn is constantly used to describe a proprietary unit of common occarrenco : — the well-to-do landholder holds a manor
Kir many manors. Now speaking very generally we may say hat a mau who holds a manor has in the first place a house or liomeBtead which is occupied by himeelf, his baiIiS» or servants. Along with this he holds cultivable land, which is in the fullest seiue (so hx aa feudal thoor}* permits) his own; it is his demome land. Then also, as part of the same complex of rightfl, he holds land which is holden of him by tenants, some of whom, it may be, are freeholders, holding in socage or by military service, while the remainder of them, usually the lai^e majority of them, hold tn villeinage, by a merely customary tenure. In the terms used to describe these various lauds we notice a certain instructive ambiguity. The land that the lord himself occupies and of which he takes the fruits he indubitably holds * in demesne ' ; the land holden of him by bis freehold tenants be indubitably does not bold ' in demesne'; his freehold tenants hold it in demesne, unless indeed, as may well be the ^^laae, they have yet other freeholders below them. But as to ^|ltio lands holden of him by villein tenure, the use of words seems to fluctuate ; at one moment he is said to hold and be seised of ihem in demesne, at the next they are sharply distinguished , from his deracene lands, that term being reserved for those
Ibortions of the soil in which no tenant free or villein has any pigfata. In short, language reBects the dual nature of tenure is villeinage ; it is tenure and yet it is not tenure. The king's bourte, giving no protection to the tenant, say that the lord is seised in demesne ; but the manorial custom must distinguish between the lands holden in villeinage and those lands which are occupied by the lord and which in a narrower sense of the word are his demesne'.
1 Thu Dtmcton, [. 7fi b ; ' Um domiiUM qaim TiUima^ qosa diei poessm I dominioft.' Ibid. f. 98: 'tertiA pan Tilleaagii qaod Mt qoasi donuniciun.' Id llw Hoodnd Boll* aom* joron tutBtaaU; iMkon tba vIUdn«BO ^ be pftrt of tbe dfluait, whoa otben u habitoftll; •utloda Um Till«in«4* when tb*; give the eootaBU of ibe dameBDa. Tbas (tl. 843) m the Daiutow Uaodred of Essex their foniraltt tl — Uie lord hfts x ecree lo detneHDe of which y are tn villeiiiage. Od the other head, io Hootingdoiuhire [t.g. U. 666) the londi holden hj villein tanante an not part of what the lord holda io demeHoe. The woid dmrnw, «Mah to the Angln-FrcDch 4i[|Qira]eiit fur the I.AtiD (Urminicnm^ Is ver; enriooe. Oor apeUinf ol it Meme dna tn « fabw derivation from Uie Precch mrtnU pKMMbold} ; the dAmcaoe laodi soppl; the lord 'a hoiuehold. Not improbabl;
364
Tenure.
[bK. XL
We hBve nsuollj tberalbre in th« numor laadi of tfaivc (».! IdzuU, (1) the demesDe stnctlj to callod. (2) the bnl of the lord'ii freehold tcmuiUi, (3) the vilUnaffium. the land hoUm ot t the lord hy villein or cafftomary t«iiuro. Now in Uw powom ] GMU mil those Uudii aru bound together into m fla|^ whok by two oooDomic bouda. In the tint pbee. th« deOMflM tuada w« ctiltivftiod wholly or in part by the labour of the leoaDta of tW other lands, labour which they are bound to sappty by nmem of their tcoore. A little labour in the way iif ploughing and reaping ia got out of the freehold tenant* ; much labo«r of many variotui kinds is obtained from the teaaat« in viUaianga. so much in many cawa that the lord has but Mmall. if any. Dead to hire labourerL Then in the aaoood place, tanemente lie intermingled ; neither Iba lord'a 69 tenant'i ttmcment can b« sarroanded by one riny-leooR. lord baa his house and homestead ; each teoAnt has hta with more or Iom curtiUge snmxmding it; bat tb* purtionn of the domeeoe and of tho vanooa other tenam— la tie mixed np together in the groat open fielda. There will be fewo or thrrv or perhaps more great fields, and «adi taoenwat wiS coonnt of a number of email Btripa» of an acre or half-acre ^eee, diaaipated about in each of tbeeo fields'. Thaea fiaUi are aubjeoted to a common eoam of agruuhnre, a ivo-ieU syalem or a three-field ayatem. ao that a vbok Said will Ba idle at one lime, or be aown with winter seed or, aa the may be, with ftpriug mwxl. AAt hanrtMt atvi until th« for liUing comea, ifau lonl and the tenants turn ihi-ir to graae over the whole fii*M.
Then we further notice that tho rariotts teftomanU^ at thoac held in villeinage, aru supposed to bo of aqttal aslaat of equal value, or rather to ihll inle a ftw rliim^ Iba of each olaas being equal amoog tbemsalTaa. Thoe it is to find a number of tenanta in nllotnago cftoh of whom is mid > 4
•aotJMr flUsiski wibos4s< oontaiicRL Bmrtea, I. M ilialiktvoflvsiMiaMrttdvfihiWLuiaaMMr '«i>nlm 4Mii Vrfs kshrt sd MMBn tium-; Uw iImimi Im^ ■gyyjy iht IdH** ■n fab 'tnsrt.lwuU' CL WhOfar Out L «H: M < ..MmmMtbiiMrvUhUal aaUu « domlaMS mmm iOaa GtoM. •.?. iiiiiisrMiw. loot B«» iniBtat tnl iksA Iks « ta
> Iksi a liimwt iwrtstsfi^ la dl lol flas ssms i^ smM el m ■soMfiMB; rUMs. a. Boaw. L «1.
iTf 12.]
Ur\free Tenure.
365
>Id
yard of land. Each of them
ha
an
Ilia house
and the saine numbor of strips of amble land ; each of them does precisely the same service to his lord. Then there may appear a class of half-virgaters, each of whom doeH about half what is done by a virgater; and there may be classes which have smaller tenoment3 bnt which yet have somo arable land. Then, most likely, there will be a ciasH of cottagers without any arable ; but the cottage and crof^ of one of them will bo regarded as equal to the cottage and croft of another and will vide the lord with the same services. And we sometimes to see that the distribution of the arable 8trip« is ao ged as to equalize the value of the various tenements. All virgates are to be equal in value as well .is equal in acreage far as la possible. One virgater must not have more than share of the best land. The strips have been distributed th some regularity, so that a strip of B% virgate will always have a strip ot A's, to the right and a strip of 6"s to the left of Then again, the manor will probably comprise meadow land and pasture land. Each virgato may have a piece of meadow ^annexed to it, the meadow being treated as an appurtenance of e arable land ; or again, some of the meadows may be divided eaob year by lot between the various tenants, and the lord may have certain strips thereof in one year and other strips in another year'; but. when the grass has been mown, all the stripe will be thrown open to the cattle of the lord and hb nants. There is also land permanently devoted to pasturage ; right to torn out beasts upon it is commonly annexed to ery tenement or to every considerable tenement. Lastly, we ust just notice that in the lord's court the manor has an organ capable of regulating all these matters, capable for example of dedding how many beasts each tenement may send the pasture, and. when the rights of the freehold tenants e not concerned, the decrees and judgments of this court will binding, for the king's courts will give no help to those who old in villeinage.
Now speaking generally we may say that the servicer which TtUeio e tenant in villeinage owes to his lord consist chiefly of the duly of cidlivating the lord's demesne. Before the thirteenth ntory is over we may indeed find numerous caaes in which e payment of a money rent forms a substantial port of bis
> Tinagradofl, p. 369.
S66
Tmure.
[bx. n.
Mrrioe mad b« is hanll/ bound to do mora Ubowr ttna tt ct- ■ct«d from many of the freeholdon. Boma plooffhiiig and torn* tmjping. It i* very poatible that there are mom oUmm at (tnanU now reckoned to bold in villeinage, wboaa pndaoHmw vers in this nine poaition at a retnot« time ; they are ganti mimm, men who pay pa/ol, or they are c^MuarU, and aoek thair fcl^fcthwi may have been all along'. To suppoee that ia all caM« the iiyBtem of rents paid in money or in prudooo haa grown oat of a system of labour aarrioas ta to make aa unverified assumption. On the other hand, in very vauiy caaes we can aee that the money rent is new. We may aaa the procoas of cummutation m all its rarioaa stages, from iha stage in which the lord is beginning to take a peony or m halfpenny instead of each * work ' that in that particular year ha does not happen to want, through the •!•(• in wUeh ka habitually taJces each yaar the oamo asm in iMpwt td Ifca same number of works but has expressly luaunwl ta hinMelf the power of exacting the works in kind, to ifao ultiiaata st^a in which there is a distinct undcntanding that the to pay rent instead of doing work. Hut wu may for a treat aa typical the caaes in which the tenant hardly payi any- thing. Of snob eaaes there are plenty. The tooaat nay fay some small anna, bnt theae are not legardad as the lenl of Ua tenement. They bear English nomn ; somiiliiaas tbay saaa la havi! thuir origin in the Uad'a juritdiotiooal powen nuhsr ikaa iu his righu as a hutdowner, aa wbao we read of htti'ajpasiy, wardpenny, wilspanny; aomalimes they look like a retom to the lord, not for the tenement itaelf, but for rigbto wastes and waters, as when we read of juluUmr, md^mSUtr. But in the main tha tenant amst work far tenement.
Kow the labour that be bos to do is aAMi maanla^ by Uie manorial custom and deaoribad in tha aiaao Let us take one out of a thousand examplea. In the Abbet «f Baoaey's manor of Siukalay in Unntingdaaihira tba wmimm «f a vtfgaier ara tbeas" >— Pnai tba tOtb of Saplanbw nalil tte 29th of June he must work two days a week, lo wit oa Mooday and Wadneaday ; and on Fkiday ba mwfc ploogb with all tin beasta of hia team ; bnt ba has a bcJiday far a fiactaigbt
' TlBOffniaO, S^ar L ihspbTL
•Out.aMLLaML
^
CH. 1. § 12.]
Unfree Tenure,
367
ChrUtmas and for a week at Easter and at Whitsuntide. If one
of the Fridays on which he ought to plongh is a festival or if
the weather ia had, he must do the ploughing un some other
day. Between the SOth of September and the 11th of November
he must abto plough and harrow half an acre for wheat, and for
sowing that half-acre he must give of his own seed the eighth
part of a quarter: whether that quantity be mure or leas than
|i» neoeasary for sowing the half-acre he must give that quantity,
no more, no less: and on account of this seed he is excused
one day's work. At Christinas time he must make two quarters
of malt and for each quarter he is excused one day's work. At
Christmas he shall give three hens and a cock or four pence
and at Ea^jter ten eggs. Ue must also <lo six carryings (uw-
^ragia) in the year within the county between the 29th of June
land the end of harvest at whatever time the bailiff shall choose,
I or, if the lord pleases, he shall between the 20th of June and
the 29th of September work five days a week, working the
whole day at whatever work is set him, besides carrying corn,
for he shall carry but four cartloads uf com for a day's work.
If at harvest time the lord shall have two or throe ' boon works '
(jTrKoAffffiw), he shall come to them with all the able-bodied
roembera of his family save his wife, so that he must Hcnd at
least three men to the work. Uc pays sherifiTs aid, hundred*
penny and warH-penny. namely ^\d.
Now the main features of this arrangement we find repeated Week work I ■ mi 11 II.- "ad boon
in countless mstanoes. The tenant has to do week work, as it A»jt. haa been called : to work two or three days in every week during the greater part of the year, four or five during the busy mimmor months. Then at harvest time there ore also some 'boon days' {precariae, precaiione$) ; at the lord's petition or boon the tenant must bring all his hands to reap and carry the luo] crops and on these days the lord oflen has to supply food ; at I Stukeley it is bread, beer and cheese on the first day, meat on ^Kthe second, herrings on the third. But matterv are yet more ^Vmiantely fixed. Our Stukeley tenant has tu ' work ' no many ^V days a week ; the choice of work rcste with the lord, but cnfltom has fixed the amount that shall be accounted a day's work. For instance on the neighbouring manor of Warboya gathering and carrying three bundles of thorns are regarded aa a day's work'. At Stukeley if the tenant has to fell timber, the
* Out. Bams. i. 810.
168
Tenure.
[bk. ?
day'n work U over at noon, unleaa the loni provides dinner, and then the work Ust« all dajr. SometUDM ife is remarked ihu a taflk which coants as a day a work can realljr be done in half a day '. The exact distance ihnL he must gu with btn lunf* wagons in order that he may claim to havo performed aii aweraffium w well known, and. whim thu lunl is bound to sopptf food or driok. the quantity and quality thereof are determiaad. On the Ramsey manon a sivk tenant will be exoosed m wbofa year's work if hit> iUneaa laMe ao toog ; after the year he maai get hia work done for him as best he may. A half-TJiyiter will do proportionately leas work, a cottagvr still less; thus at Stukolcy tbt> cottager works on Hoodays throaghoot the year and on Fridays also in barvost time.
There is more to be nid. Onr Stnkeley vifylsr paye ' morchct ' as best he may, that is to say, if he wmAmb to give his daughter in marriage he must pay money to the bad and the amount that he has to pay is not 5xed. If he bae a faal or calf bom of his own more or cow, bo most not sell it witboat the lord's leave. If he has an oak. ash or poar-tiee gnming m bis cxnirt, be most not full it, except (or the repair of hia howi^ without the lord's leave. When he dies his widow shall pay a beriot of five shiUiogs and be qait of work for thirty daya. These are oommoa features, and the roercbe4 ia of peculiar importance, as will be seen herealUr. SoiMtaaM it is m3ty paid if the girl is mnrried ontside the nil; swnetiwee the amount is fixed And ho u to selltng beasts; nrnMa'nwsily the lord's right is but a right of proeviptioo. And ihao in ma«y oases the villein tt'oants oru liable bo be tolLagcd. ■wnstiiiias onoe a year, aomotimes twice in aevaa years ^ aoawtiaes the amount of this tax ta deAtwd, sometimae th«y caa be * lalh^ed high and low' (</« Aairt «n has). Ofleu thvy ore bound to 'eott of mill,' that is to say, they must not grind their «<■« ala^ whure than at the locd's mill About all these uiatteu «« sometimes find niles which set certain dcAnite bmila to the tenant's duty and the bvd's right'.
Such were some of the eMnmanset aanrieaa doe from
> OvL B^H. L Uft: aaUk^ AtM f«Msei wHmfkml'
• Thaa Owl. BsMk L 4TS: Mw taasst svw mA to Iks tai4^ Unmn lilA^MdMfcBiTC-^s^CrtsdahiSvlMTCinWfai^l tear, sad son ib»a W hm ynrolairf maj U ftvssi hbuvIm*.
CH, I. § 12.]
Unfree Tenure^
869
holder of a villein tenement. As yet, however, we have at- tained to nothing that can be called a definition of the tenure. To Bay that it is u tenure defined by custom but not protected by the king's courts is no satisfactory definition, for this, as ah%ady said, is to mistake the consequence for the cause. Now Bracion cuui^tantly a^^umej^ that everyone will understand him when he speaks of villein services, but he never undertokes to tell us precisely what it is that makes them villein, and, wbon we turn to the nianorial extents, we not nnfrequently meet with tenures that we know nut how to classify. Apart from the tenants who certainly arc freeholders and the tenants who certainly hold in villeinage, we see here and there a few men whotto poKition seems very doubtful ; we du not like to predict either that they will or that they wilt not find pro- tection in the royal courts. We have to remember that the teat which in later days will serve to mark off freehold frum copyhold t<;uure is as yet inapplicable. No one as yet holds land ' by copy of court roll ' ; the lords are only just beginning to keep court rolls and it is long ere the court roll becomes a register of title. If alienations and dusceots aie entered upon it, this is done merely to show that the steward has received or has yet to CMJIect a fine or a hcriot, and the terms on which a new U:nHUt liiktss laud are seldom mentioned. 11 fruni a niudem conveyance of a copyhold tenement wc abstract the copy of the court roll and even the court roll ttsolf, we still have left the intermediation of the lord between the vendor and the pur- chaser : the land is supposed to pass through the lord's hand. ^aft3] But when dealing with the thirteenth, to say nothing of the twelfth, centur)', we can not make the lonl's intervention a proof of villein tenure. We uiay well find the conveyance of a freehold taking in all essentials the form of 'surrender and admittance ' ; the old tenant yieldx up the land to the lord, the lord gives it to the new tenant ; the transaction takes place in court ; the symbolical rod is employed ; uo charter is necessary'. [ndevd when there was to be no subinfeudation but a substitu- tion of ji new for an old tenant, we may well be surprised that this cuuld ever be effected without a double conveyaoca More- over if we say that the lord can prevent the alienation of villein, but can not prevent the alienation of free tenements wc still have not solved the question ; to say that a tenement is villein
■ 8m sbDT«. p. US. p. a. 1. S4
870
Tenure,
[bk.I1.'
TImwUI
beouiw it can not be »UMwiod without the lordV consent. i« io pnt i\»* mrt before tht* horve.
Nor Bgain cnn vre fiud iha ■oluliou in the pbnM»*io boU aft tho will of the lord* If for a monwrn w« tak« this phnae Dwnljr to denote that the tenure ii unprotected by (he king^e ooarl. we an braaght onoe more to the fruitlaMi propwitidft that it IB unprotoctod because it in unproieotad. 11^ <m tbe other huid, wo take th<^ phnwo to imply that there ia no eoart which protwt« th« tcnuru, or that the lord can at any maoMnU eject thtf tonant without brv«ch uf any ctuttom, tht*n, Ui My tba least, the great maw of vill^n tenure* will eacape froai ov defimtioiL T<^iinmi which realty are tenurna 'at will.* la- pmleGtod by any cutitom, arv to be fouad, wad that too in hij^ places, but then they ant in general oareftiUy diittttgoiabed 6vm the vi1I<*tn t4'nurnH. In th» extents and manorial roHa of thu thirtcvDth century it a tare to find that the traaole in villcinogo are aaid to hold at the will of the lc<rd*. Still when wf turn, u wo now nuwt, tu 6nd the elomant m fiBaa wrrioos which make* them viUmu, thia phrase *ai the loRTi will' matt again meet na.
That a tenure which compeU to nfpicullural labnur is ' unfree, thin w(> ccrt«inly can nut ny. The philology of tW tine made pluughiiig acunrice the characteriilic featnn ti eoeage*. and often enough a freeholder had to gire hie aid ia ploughing and reaping hie loid's dnmoeiw ; nor cui we lay fqr certain that ho could alwayn du hin work by depaty. far tbt duty cast upon him wae eomctimee auch «■ oouM aot wril be delegated, ip particular that of riding nfb*r tho laboarwa ' with hia rod' and keeping thcui up to Ihoir work'. Tbeta ie nothing arrrile in having to do nioh a duty ia pttaea. Ia genetal, no doubt, the freelMlder only aide hie lurd'e agnenltwa
1 to lb» Hottlml Ik'tli tli« fiinM •«! Um will of Uw Iot4* Mua^ In «o«MKtoo tHtb pwtJeoUr Mfriifc^ #^. U. 4TK, *| voluiaMii dosilBt ' i and vlwn sert la ^^aU* lbs
to rtn»w iiuA ihm lort h— • ahakm Unmm wl —4 wmk, • ' •• ^^ '« ^ onntatiTnliii— aiiudHB p«r uutuai a4 MliftUtHs iamuid •>. - ii to
10 And li Mid ihai dM boaai ia vUMs^i kmUt ki tte wiU i j »- »«4. I •vtr Uu Jaren of tha Moitfaalov teaadnrf of OiwWftiiAha war Ibte itiertr Is MB* IMM (U. «M -a> aa alae 4e Ibaaa aflka ri^varth i
• Has abova, p. Va.
■ TbBt wlMn M U mI«I IIhU a inwiil ohm Wiaf h*i wvrfc- ••« IfNt (Mrt am aidiiwrt M IM IiiIiiiiim/ Ui ftmmmm Is f^rindi Ftacdl. Abhnt. ^ *T fBndt).
I
I
OH. I. § 12.] TJnfree Tenure. 371
during a few weeks id the year ; he helpe at the ' boon works' but does no 'week work'; still it is difficult to make the distinction between freedom and nnfreedom turn upon the mere amount of work that has to be done. If there is no villeinage in labouring ten days in the year why should there be any villeinage in labouring three days a week? On the whole onr guides direct us not to the character, nor to t^e amount of the work, but to its certainty or uncertainty*. The typical tenant in villeinage does not know in the evening what he will have to do in the morning*. Now this, when properly understood, is very generally true of the tenants who are bound to do much labour, to do 'week work.' They know a great deal about the amount of work tiiait they will have to do in each year, in each week, on each day ; they know, for example, that the custom exacts from them tiiree and no more ' works' in every week, that Tueeday is not a work day, that if they are set to ditch they must ditch so many perches before the * work * will be accomplished, that to drive a cart to one place is * one work,' to another place ' two works ' ; they know whether when set to thresh they can stop at nones or must go on to vespers. Still there u a luge element of real uncer^ tainty ; the lord's will counts for much ; when they go to bed on Sunday night they do not know what Monday's work will be : it may be threshing, ditching, carrying ; they can not tell. This seems the point that is seized by law and that general opinion [p. 3*4] of which law ia the exponent : any considerable uncertainty as to the amount or the kind of the agricultural services makes the tenure unfree. The tenure is unfree, not because the tenant ' holds at the will of the lord,' in the sense of being removable at a moment's notice, but because his services, though in many respects minutely defined by custom, can not be altogether defined without frequent reference to the lord's will. This floctrine has good sense in it. The man who on going to bed knows that he must spend the morrow in working for his lord and does not know to what kind of work he may be put, though he may be legally a free man, free to fling up his tenement and go away, is in fact for the time being bound by his tenure to live the same life that is led by the great mass of unfree men. Custom sets many limits to his labours ; custom sets many limits to theirs; the idea of abandoning his homo never > Note Book, pi. 1210. > BractOD, f. 26, 208 b.
24—2
STO
Tenure.
[bx.
IMnHloo
ooteni tui hekd ; the lord's will ptuys a Urge put in ■lupiny his life.
Thia then sconu to have beeD tbo ttwt liifiully ^pptiod tho kiug'a oomt. If the labour HerricM aro * twovftMn,* Um- tcnaru 'u unfrec; an<j it is a tent which coodcmns an nnfivr the gnmi bulk of iIm tenum whicli obli^cc^l tiitti t4i ptTrfurro anjr ooo- adoimbl* amoaot of agrioulluml Ubt^ur fur their lord, bocaoHir boweTer minutoljr aoine partionlaiv of thooe aemaea wamj be deBned, thrrv w geaomllj a spocioua room left for the plajr of tlic- lord'fi will. Thua the teet loughlj coinddee with another ; — labour sorvico ia not oeoeMuily unfree, but • Mrriee which oonsiste of much labour, of laboar to bo done all tho yvnr rotiod, is alnuwt of neceauly unfrce ; for alimiat uf Deooanly thu beoaat will be bonnd to obcv, within widu limits, whatever eoaaoMUidi the lord or ihti Itird'K bailiff may give him. ThuH to faukl land bv ' fork luid flail,' by wurk douo ilay by day, ur wv«k by week ou the lurd'ii dvmi.->fue. ia to hold io viUeiiuige*.
Other tcet<i aro In use. Any serrioe which Rtampa the tenant as an unfree nun, etompe bia tenure ae unfitee; and in coDUnon opinion such eonriees there ave, DoCably the awraliieak Now among the thouiands of entrioa io English doouiiMiite i^ biting to thiH pftXTiient, it would we beliere be utterly impoenble to liiid uae which gave any sanction to the taka uf a ins primm noetit*. The context in which thui duty ia usually Bwittoiiad l^*< explains at lenat one of the reaaoos which uodertie il The tenant may not give his daughter Qa aome ciaes hk son er daughter) in marriage— «i least not outside the ntaaur. and he may not have bia eon ordained, and he may not iell bofae er ox. without the lurd'ii leave : — the stock oo the tenement is noi to be diuuuiahtid. Nu doubt u Bubjeotion to thia leslnjiil waa r^i^arded as veiy base, and sometimea it is deacribed in vjgewMw words which express a free man's loathing lor tanrii^y . — ' he must buy, he most make ranaom Cbr, hia fleah and Uo«L' This is intelligible; a payment for leave to give one** daughter io mairiage or for leave to and flDe*B eon to Mheol, aatnnl^ suj^eele baodag«v penonal bondage, bondage wbkh is in btuod. It is (uuftanily used s« a t«st of pocaunal
• Pladk AUnv. p. «■ (Daiks-l: •
B»0dbtm.' 9m VtaorBddl. p. 170.
^sw stoiW MS WiiatiwJ hj Isri MasOl. Jm Mmm
I
I
CH. L § 12.]
Unfree Tenure.
373
and a fortiori of unfree tenure. Bracton will jnst allow that the man who has to pay a merchet need not be a bondman : it mftj in n given ca8e be an incident of unfree tenure rather than of persoual servility. However, though thin te8t was commonly applied, we can not say that it was conclusive even of the unfreodom of the tenure. In Northumberland there certainly were lords of inonora, lords of entire vills, who paid merchet', and then we have to remember that in Scotland, at least according to the Regiavi Afaiestatem, every woman, were she noble, were she serf, paid * merchet,* paid it in kine (an earl's daughter paid twelve cows)', while in Wales a. similar payment wan made on the marriage of every girl*. Very poaBibly several diftorcnt pajTncnts originating at different times, perhaps among difierent races, and expressive of different ideaa have been fuBe<I together; but in England the merchet in generally regarded as a base payment, o. mark, though not s conclusive mark, of pei-sonal unfree*lom *.
* 8m f.ff. T«cU Ac Nprille, p, 393.
> Bo8- Msj. lib. IT. c 51.
> AnGimt Lawn of Wftliw: xeo tnilpx Kv, amt>byr, Hmohrtiffium.
* In two placcfl Dracton (f. 20, 2DS b) apeftki aa though merchet could Dever be aoaeted from a lite man; in a Uiird paHsage (f. 1!)5) ht- sllows that a fre« laaD maj be oompelled to pa^r it by reason of an expresa agreement. Flvla, p. 193, and Britton, i. 19C, think that it is not eoocIuBire of penional an- fre&don). For the law of later days see Littleton, seca. 174 {an interpoLttion), 209 M>d Cokc'a coamwiit tburooa. Coke's doctrine ia that the merchet may he exMted (nnn a free man by retmon of special reaervmtton, though not by raaaon of geoaral custom, and the poaitire half n{ tbii rule aaema to b*,- burnt- onl bj Y. B, 48 Edw. Til. f. 5 (Hil. pi. 13); a« to tbo apgitive bal£, mo UlUe- loD'a nmark in T. B. U Hen. VI. f. 15 {Micb. pi. 28). In 10 Edw. IH. f. 33 (PmbIl pL il) ■ <sae came before the coart illtutratin^ the NortbDnibrian tcotooa reterred to in our text; the tenant, it is said, did homage, paid seatage and RMamhet. It in chiefly in Northumbtis, the bcnne of drungaf^ and Ihegnage {■M abore, p. 379), that freeholdem are to be fonnd payiug merchet; bnt tenants bvarin); the di'stinclivo naiite of Freeman and yet paying; merehet are met with daewbere. t.g. Plea» in Manorial Courts, i. 94. Vloognuloff, p. Ifi4, anctwa Crom the Bnndnjd IU)lls that th<>rc were coniddfrable partx of Ra^cland io wfaidt tha vlUeins wer« nut subject to thin exaction, since the jorora of some handredB nay nothing aboni it. But when we find it hnbitiinlly mentioned tbrongbool somo huadmls and nerer mentioned in otbrre, tbi- mundcr infercaee aecma to be that it was almost anivorsal. Sonte juriM think flt to tnantlon it, ntherti do not; Juat as some juries think lit to say that tba Tilleins hold at tbe will of the lord, wlUld others do not. Bo again tba Jaiy for the Utogtree bandred of Oxfordsbire (it. 774} eall all the tenants in villeinage wrr<, wbile in eome Cambridgeshire bundreda they are in general rtulumnrii. Fur a diseuMinu of tb« derivation of the word marthtt see Y. B. IS Edw. III., ad. Pike, Introdoctioo, pp. xv-xliij.
374
7V««re.
[bx. n.
iffflMo
Othor URta an kI tunn niggwtod. The daiy oT Mrving a* I tbo lord's rocv« whenever the lord pleui*. the liabUitj to b« faUligpd 'hi^h iukI low.' Lbfloo also ■» tnotod u impljrnif penoiuU biitidugu*. If iho teiuiiwnt doaoeiida io Uw joongMl ■00 instead of u> the eldesL son or to all tbo una, tha lalnvnoa m somutimea drawn that it » not frua. On tb« whole, howorsr, our books ooostaDtiy bring Uit back to the * unoertainty ' of ibe aerrioe aa the beat critarioo of villein tmore. Certatoty and naoertjunty, however, arc, as we have wen, matteni of degiva. In lew, if may, canem ia there nu custom setting bounds lo the ti'iuuit's duty of working for his lord; in most caaea auuiy boundji are sttt ; the number of dayv in eveiy week wkieh ba rniwi spend on the demeana is aacertainad ; often the amooat of any given kind of Ubour that will paaa for a day's work i» determined ; but yet there is much uncurtainty. for the tanaol luwwa not in the cvuniug whvthtT iu the muruing be wiU ba kept working in the fields or sent a long juumey with a oafl We need not be surprised therefore if in the thirttfeoth century * freehold ' and ' villi^inhuld ' are already hnnomtng ledioicd 1^> ideaa, matteni of law ; jun*rs who eon daaoribe the semoea an QDwilling lo My whether they an free or nnfret. but will leave this qucfttion for the juatioos*. And next wo have to ooto that tbongh labour H>rvictt, indvfinita or bat fnrtially defined labow ■ervice, iwntns to be the original uairucv uf viUein tanon^ tUi doea not remain so fur lung. When once it baa beoo iialaMJabad
> Kow ftsd tbio la ih« adwti a maa vlw trnma to h« • Is p^ teIU«ii 4^. Cut. BtUMM. I. SS9i *dkt uniniiB «■■ TtDaata fltuqiM i|»i tsUUBlor.' Ln Y. D. S Mdm. Ul. L W (lOth. pL SI) M is «M Oal ih* bUhop o( BIr bald lu>d \.j iIm Mrrtn ot Uiog MJwm* ^m$ «tlk *• *iU«iiL Of «rarM till blabop «•■ tm, tatt U* immmmi al« «mm to Wm fcw ■nailitoirt Itm.
> That, rUdL Mhknr. 90 (MU.). in }aii JOMts MT-W* «» art law wbotbv Um iM^Mrt it tnn lb* tauAot had lo plsoih Ihn* mm tm Wa imA. 10 stow ibrM lanH sad sany lo lb* ki4*i Uns. noii*«a( Iv ikw ifca hart •hsip la ths l««d*i fold, to sUnd hooa days sad prt sa SaM> «ai: ■• mttm hisad that bs SMds flas far asoTi^ hii ^achltf or MUat Ul MHi kaft l*a lufdai^l«Mdiaa«UfraaiUBMWoiain«Dj«an. W<*<Ullfcsl i ■ H «M(tw, On p. S4 (lwrk.< m HMhv ipaM MaAsI la aa ssHm I^^ 4«mii Uian U BO woak anrL; Ow jwors ho««««r bid aofvr bMtd tt a w^na kHia kadoawl ol oaib a inawaaai. bal tter hm bashaad'i cU^k tbt ndsv Mirf to hold Uh irfwU. if cU that lb« iMMaint *m aoi b»«i, ai loMk far ite piavaa of Mdovwoi. la ins (Koto Book, pt «1) vo dnd aaalbw w« to «bM, woordlai to eas tiocy. ibo fmnn doatood. loboar nrvieiB, bt kat« *%mA 4ttmkt faono ai fold
CH, I. § 12.]
Unfree Tenure.
375
^lat a tenement i3 unfree, that tenement will not become free, at least in the eyes of lawyers, even though the services are modified or transformed. Without any definite agreement, a lord begins tu take money instead of exacting labour, and gradually it becomes the custom that ho shall take money, and a precisely flxed sum of money, in lieu of all the week-work. This change d'X'S not give the t^Luant a freehold, a right in the land which the king's courts will protect; something far more definite would be required for that purpose, an onfrauchisement, A feoffment. Thus it falls out that a tcoant who accordiug to the custom of tfao manor pays a money rent and does no more labour for his lord than is owed by many a freeholder, may still be no freeholder but a tenant in villeinage ; ho still is protected only by custom and in the view of the royal justices is but a tenant at will. Then gradually what has been called 'the conveyancing test" becomes applicable. Dealings with villein tenements are set forth ui>on the rolls of the lord's court; the villein tenement is concoive<l to be holden 'by roll of ooort,' or even ' by copy of court roll,* and the mode of reyaoce serves to mark off the most beneficial of villeiu- from the most onerous of freeholds; the one passes by 'surrender and admittauce,* the other by 'feoffment.' In Henry III.'s time this process which secured for the tenant in villeinage a written, a registered title, and gave him the name of ' copyholder,' was but beginning, and it is possible thai in some cases the lord by taking money instead of labour did as a matter of fact suffer his tenants to become freeholders ; but probably he was in general careful enough tu prevent this, fur him undesirable, consequence, by retaining and enforcing a right to some distinctively servile dues. But our definition of villein leuuiv um-st be wide enough to include cases in which there has been a commutation of labour scr\'ico into rent, aud on the whole we may do well in saying that villein tenure is the teimre of one who owes to his lord in respect of his teoemeut ' uncertaiu ' labour services, or who (by himself or his predecessors) has owed such services in the paat, or who is frubjcsot to distinctively servile burdens such as merchet, ar- bitrary tallage, or the duly of serving as reeve. This we beUeve ^> be the main idea ; but we must receive it subject to two rt'Oiarks, namely, that, as so often said, ' uncertainty ' is a tnattor of degree, and that in some cafies a tenure which all
lAb
along hod been t«nure at n idodoj rent mnj have buvo bmagbt within the spherv of villciongv by Aumo uatnie, or ftt all eTSBli nnvcriHed. thocoy u to its piwt hirilory. Here atvlHtwhrTP law has done its work of olnmificiilion by mmnK at typM rmtb«r than by meaiui of dafioitioiia'.
To fix in precise words the dcgroc of binding f<?rr« that tho 0^1 lordfl in thfir thongfatM and tbrir drnltf nMrnlM*d Lti the maournl mttom wonid be inipuNnblo, Ornemlixaiiutui abi>ut the morml wntirocnti of n grpAt and hetorogDornnn clmw of men on apt to be fiUUcious, and, when a lord pays mpcft to a custom wUek oui not be enforced agaiiist him by any roinpiilwiry piw. il will be bard for on to cfaooec botwiwo thp many pomble motivei by which he may have bean urged ; provident «elf-int«raft, a deftire /bra quiet life, humane Ibllow-tV'^'ttng for hiM depeodaata, bttfiidpe a nwpect fur Lht* custom as a rurtom may all have palled one way. There is aome •ridaaoe to show that the more reTor- entv for the custom an a oniitom grew wvakrr during ih«! thir- teenth century. When early in that tigc the king'i jne^ considering whether they would nut prutoct tb« villetn agaiDAt his lord*, thoy muHt have fett that the custom wan rtry like law. On the other hand, when th^y hail de6nit«ly aban- doned this enterpriw^, the lordii mutrt have been more and man
> It Bta; W nM that «* ooatnMticI Bnvion ta ai>kiB« MMDM of tOida MniM, for b* nd untmra^nlij (k/. L 7. M) nirti vi vflhte taniam tad mrOi work miAA u* ovtaUi tad imtmmlaai^; wrvloai UMlvorki oval l^ mcb* alaaw ot ftwiaU oa tha Thabaihli that Iba tana 'awtata* k aid la two Atflanak IM daaa^aM. mum aaaaai; Iha ooa takaa tfaa law of tha kfa^* aaait, tU fl«bir lafeM Ifa caalan of lb* Baaor m Ita otUrioo. Bwrtopa mtj U «itber <1) baaanaa tbi eaatoa oaa iwl iMaa tbtn wllhani trvvMB* tba lord't will, or (1) baeaoM. If lh« Icml ehotmm \n htmk lb* Unc*to<iiirl will not h^lp tl>» UnsnU. Id Uw or4ina'7 ■«•• af aarviai an nnamaitt ia boib waan. and nsaviaia la lb* waaad ■nawtain la tba int. But Ibaaa an aaaaa aa 1km anniai Ambmbv ha Iba iHikaa an aoMnaio ia tb^ flni, b«i sot la lb* wmnA amm ana to ba Bnekwi'* ' Mrrltia TilUita mA anta.' Wa aaa aal Mtjr i wlUMnit ivaaklaf ot iba lord'a •01, aawfrtwliaa lb* MtaWM la lamUr OB Um lord. Vnppom Iba Mama of a baan le fai tful J a mab for B at whatmr htai td ifrioBUanl laboar M mmj im^nttmi im tma wmm IhMM tonaa an vmy atmrtolai but If anofia a< b* • MotKff Ml* UHrjr H* wtotaL Bun fl b no* to ba * vOWa * najr ■onatlBi^i ban Wm aypUad le aaj bat4 ««*i la lb* latAk la tba Ifairtaaatb awta«7 it «« • •«ri af abw»i ■**tflda 4^4* ia a Imm m4 aD^«d^4aa<: 'illMa wrdi*anfn«*e«*t,ka4l
»Ab•v^^■iL
:h. I. § 12.]
Unfree Tenure.
S77
i
pted to regard the custom as but a revocable expressicm of
their own vills^ Certainly the lawyers began to use language
which must have miggested to the lonls that thoy might eject
tlieir ttiuanta whenever they pleased'. On the whole, however,
e two clauses of the formula which is in after times to describe
e pottition of the copyholder, grew into defiDiteuess aiiie by
Bide : — the tenant in villeinage holds ' at the will of the lord,*
but 'according to the custom of the manor,'
^p Our task is the more difficult because fully developed copy- '^^^^^
bold Irf-nure, even as it exists in thf nineteenth ccntiirv, allows tconrem
that there are many acts and defaults by which a tenant may
^Borfcit his tenement. Now a strict definition of these causes of
^Wbrfeiture only appears late in the day; little of the kind is
^nto be fuund in the ' extents' of the thirteenth centurj*. Seldom,
Hu ever, were the lords bronght to acknowledge that the causes
of forfeiture were definable. Many admissions against their own
interests the ' extents' of their manors may contain : they sutfer
it to be recorded that ' a day's work* ends at noon, that in return
MO] for some works they must provide food, even that the work ia
not worth the food that has to be provided ; but they do not
admit that for certain causes and for certain causea only may
they take the tenements into their own hands.
As a matter of fact, it is seldom of an actual ejectment that Ki«tai«ijt Uie peasant has to complain. If he makes default m his services, he in general suffers no more than a small amercement ; seldom it exceed six pence. Even if he commits waste, if, for imple, he lets his house go out of repair, he generally has full ig and an opportunity for amending his conduct before the >nl takes the extreme measure of ejecting him. An extreme Ktasure it was, for t-enantti were valuable ; then as now ' it paid be ft good landlord." Two motives, and perhaps two only, might make a lord wish to clear the cultivators from his land ; he might wish to fill their place with bea.st«) of the chase or with monks. Happily for the peosaritr)', rights of sjiorting were ftancbises which had to be purchased from the king, while wo jay hope that the pious foun<lor dealt generously with his snanta One of the stories which best illustrates the nature of l«ir customary rights tells how when Henry 11. was founding
■ T)ia» BrmoUm, r. 'JftS: ' fiUenagiam quod trodiinr villMiiK, laoi qois iparttTv Bt intvnifieiitive rPKomorc ptwiiil pro voiiintAl« sua et rovooan.' * Sm *.g. Urittan'a ddOnition of the tenar« u given above, p. 360.
the QuthtuUn prioiy of Wilham in Socnemubin ba dmnd the viUeinn off the land, but gave Mob of them the oKoiee irf beooroing free or receiving a benemcnt in any royal maoor tbaft he might choose. But the holy Hugh waa not ooatent vith tUi^ he made Hcmy pay coropenaatJon to the villRins for tbeir faoona ; nor did hv t«top there ; they must be allowod to oarry amy tba materiaU, though for theae they have already raoeived a moiwy aqaivalent*. At aa aaiiicr daM an Earl uf Linoiln, elearing ike ground for Revenby Abbuy, had given ihti di»|waMHad f^tici a ohoioe between freedom and other tenemeuta'.
What the tenant in villeiuage had to fear waa oat ao mneh arbitrary ejectment aa an attempt to raiae hi* runt, or to ttuct from him new and degndiog aerrioea which would make hifli an unfroe man. We can not altogether aoqait the lorda oCaoefc attempts. The fact that the aerviooa deacribcd in the later *ri- tenta ' aeem heavier than those deaoribod io Um eariier, lb* faM that the debasing vurvketttm aeenia to beoooie hr nomnwoar aa time go«« on, theae bete are not very oogenU lor tha ert—n betsomi- mort* minut*^ and pariicnlarand weeddom oao beqvito aure that what is uxpruncd in the later daOttaMdla ww Doi implied in the eaiiioT*. We can not ao ee«ly rffaipflae (tf t^ o\*idcnco that late in the thirteenth century ta^ maaies ct the tonanta believed and aougbt to prove that tbeir tarda bad broken the coatom and impoaed new burdena upoo Ibem. Tbey aangbi to ahow in oaae after caae that they ware liring oo the aaAatA liemeane of the cnnnit and that tbarelbc« they were prmeeteJ ai^lnat any tnccvaae of aonricaa. OenormUy tber^ fiailad ; Ileaii^ day Book was produced and proved that they bad ao rigkt l» claim the king's help. The lact cemaiu lfa»i tbey bad hoped to provr that the lords were braaking the easCom. To tbia we must add that in many of these oases the lord waa e ralig»e>aa booaa*. Now tberv is plenty of erideooa that of all laMtkida
I lCs|]uiVllaLaapids»p.aSf ■MamliMsnwi.pLUn.
• Uaout. 9. iU. 8m w lo tlw fooadkika a( KiiMsIl, thU. v. •mmoUm ksUtotarlbw.'
• Bewmt II mam sbsr Ikal teli« Ibi iWrtMelh Mrtaiy ita •ly Is ■■■III lb* imiNm at mm* of lib IhiahiMgi^to Iw— ii. H« sas sun iaft wort ia tha «nk. Tltis MP"*'* <*■ * am^fmtaam ml tka tmm miprinlid f«|btan vml Cm. Ttk B. Si iMai. C. 11.
• Tb« llselUfwa AMmtetfs far tfc* ftni tMUjr jmn ol K4«mS L't i^ gIvM SI tvM tWM^ aaHam at Ikto Ommatm, la taa otf vMA lb* wsa a raUgises bssss. la faartHa ami at ^ \maaltf M
I
CH. I. § 12.] Unfree Tenure, 379
the religious houses were the most severe — not the most op- pressive, but the most tenacious of their rights ; they were bent on the maintenance of pure villein tenure and personal vil- leinage. The immortal but soulless corporation with her wealth of accurate records would yield no inch, would enfranchise no serf, would enfranchise no tenement. Id practice the secular lord was more humane, because he was more human, because he was careless, because he wanted ready money, because he would die. Still it is to the professed in religion that we may fairly look for a high theory of justice, and when we find that it is against them that the peasants make their loudest com- plaints, we may be pretty sure that the religion of the time saw nothing very wrong in the proceedings of a lord who without any cruelty tried to get the most that he could out of his villein tenements. We may well doubt whether the best morality of the time required him to regard the villein services as fixed for good and all, or as variable only by means of some formal agree- ment such as never could have been made had but one tenant [p.363] refused his consent. The process of commutation, which in the end was to give the copyholder his valuable rights, was set going by the lord's will ; he chose to exact money instead of labour, and, if he took but a fair sum, he was not to be con- demned. We can not contend therefore that the lord's will was ft;ttered by rigid custom, or that any man conceived that it ought to be so fettered. On the other hand, as we shall soon see, there is in the king's treatment of his peasants, the men of ' the ancient demesne,' a convincing proof tha,t the just landlord was expected to pay hoed to the custom and not to break through it save for good cause.
Had the tenant in villeinage heritable rights ? Of rights Heritabli; recognized by the king's courts we have not to speak; but the viSeiu ° manurial court frequently admitted that his rights were herit- ^"«™«"'*'- able, at least a** against all but the lord. Often a claimant conus into court and declares in set terms how he is the right- ful lieir and how some one else is wrongfully withholding his inheritance. Thus, fur example; 'John of Bagniere demands against John son of Walter of Wells one virgate of land with thu appurtenances in the vill of Combe as his right accoi-ding t(j the- custom of the manor, and therefore as his right, for ho says
manor io ijufstion was nut ou the anciciil dcnioiHiie, aud only in two cases (if we mitjtakc not) did thi; tenants get a, Judgment.
380
Tenurt.
[bk. lU
lh«t one John of BAgroero hui gnuid&ther died aetted dkereof m hia light acoording to the oiutom of the m&nor, and frocn tlwt John the right licNccnded aoeording to the custom nf the maaor to bid sua WilUain, the demamUnt'ii father, whone heir Uie demand&nt w aooording to the ct»l<mi of lh« manor*.* This if just the* ftirmiiU which a man would uw in the kiog^a ooort were b« cUiming a freehold inhoritonn', rave that aX crwry torn ivferenee ia madu to the custoui of the maonr ; aooordiDg to the ooatom inh«*ntaQoo ia a matter of atrict right aa againat all bat ibe lord, Thi< df>rum(<nt« an- iniirh mi>n> chan* of odmilliag that a« ngniii<ft the lord the heir htm any rights On tb« daaifc of a tenant a hcriot beoomea duo. aaualijr the beat beaal tm b«t (■h(itt4>l nr n fixtnl mim nf mnney; but thia ia rpgarded tnw a* a * relief lu be paid bjr on heir than aa a pajmenl dne out uf the dead man's estate, and if an ' extent * flpeaka of the hair at all. this is in genurrO to tell uk that he miiNt 'do the lord'a viU,' i*- muat * redeem the Luul at the will uf the lonlV The ooort roll* : 0Mtt to show that as a matter of fact hoin wave admittod ua fitirly easy terms, the lord talcing an additional jf-var's not or tba like, and the pleadingn in which hereditary right ta awartiuH ngainat otiieni than the lord testify to a atixiqg feeliiig ibat Um v-iUeiD tcnemcnta are hotitablo; atill aa a^nat the loni the hair haa rather a claim to inherit than an inheritance. Tin reoorda of this age but rarely say that a tenant ia admitted ' to hold to him and hia hein.' generally they aay do more thaa tliat the lord has given the land to ^. A. Whpn. aa vnald generally bo the aiae, the tenanta wore peraonally unfrec, tke loni would have run aonw danger to talking aboat their hcifft, for lawyen* were mying that the vrrf oonld have no lieir but hia loni nnd drawing thetico the deduction that a tmf Ki^t be enfmnrhiNed by unguarded words'. Thia may be tbe why early conrt rnlU. when they do eafwuaely allow tInU a mnr t«aant ia to hare ttinimi— "ble righta, do at* by a peahiag aol
> rmMMlli^ of Iha loart of Ih* AltM ttf Bm «l A.». IVMi fl^MlPlMsUi Huuriftl Cowta,l.Mi mi •oaata Bpoa ths siiiiB al his gml
•aMtataaalU.14a: ••tfart mk toliBMn AamiaL' lUa. p. I«l: •«• ■1»qwiw twiwai IUhh iiiei«4btar iwBmmi UUm U Hi Bead. U. a7«: *«l d AUm mtmm volMfU gnam 41«tl AhtaHa.'
< BneUB. r. ink
CH. I. § 12.]
Unfi'ee Tenwe.
381
his heira but of hU sequela.. Thia is not a pretty word to use of a man, for it is the word that one usea of pigs and the like ; the tenant U to hold to him and his brood, his litter'. We shall butler understand the nature of the heir's right against the lord, a right to inherit if the lord pleases, if we are per- tfoaded that iu many a ca»e the inheritance was not very valu- able. Certainly in the fourteenth century there were loi-da who would but too gladly have found heira to take up the villein tenementtt at the accustomed Ker%ice8^ We may hanlly argue
» thence to an earlier time ; but no doubt the serviceM were often as good a return for the land as could have been obtained. A strong man with strong sous might do them and thrive ; the weak and needy could not, and were removed with the full p.8M] approbation of the other men of the vill, whose burdens had been increased by the impotence of their fellow- labourer.
Further the lord UkAl care that thu teniimunts should nut Udtr I be broken up among coheirs. UiUu the tenant's widow enjoyed toaonaitt. ^H the whole tenement during her life or until she married a second ^^ time without the lord's leave*. Often the cuat*imary nile of inheritance gave the laud to the dead man's youngest sou, and tbifl waa accounted a mark of villein tenure\ Perhaps in some cases the family kept together, and the son who was admitted ^^ as tenant was regoi-ded aa representing hia broljiera ; bub this ^B must have been a matter of morals rather than of law or of ^^ enforceable custom. By one means or another the unity of the tenement was preserved and it is rare to find it held by a |iarty of coheirs. Exceptions there doubtless were, but on the evidence afforded by the ' extents' and the Hundred Rolls it is hard to believe that in the thirtc^^nth century the lords held themselves bouud by custom to admit the heir on his tendering a fixed fme*. ' Precarious inheritance,' if wo may use such a term, waa
* * BaqoeU, dieitor de polUi equiniB, Titalinia. atiiRque amtnalibni quae atlmn MqaantDr': Da Cuigfl, Qloasarium. When King John ii foroad Iu [iTotiitM thkl b« will baaUb his foreieo ctptams '«t toUm MqnftUm uoromlem * iGharicr. a 50), thii phraM oxprouM a bitbir hatred and coDMmpl. Gerard d» AthifV, Um mofll tamoDi of ib« band, was, it waa Mid. of wmlc birtb.
' Maitland. Hiatory of a Cambrid^esbiro Manor, E. H. R. ix. 4'^ If.
* U a «idi:>w hoide tbo whulc ut hiT bnxbaiid''^ tuo«mt>ut, imtuad of eajojring hat a llurd or a bair, thia ta regarded aa a mkh that Uw tafWtiMBt is villeui; riocit. Abbrrv. p. iH \\ietk.).
» Note Book, 794. 1005. 1(W2.
* The ' cxicot ' of Uolm )d Norfolk, Cart. Kama. i. 401, is a nr« tiampla of ft laanoc io which the lenementB wero allowod to descend to ooheira and
382
Tenure
[8X.
of ecMuiDOD oeeurreoctt io all sodm of society. Tbe hwwud tvWvf had bat lately bt'i-n HrionninoH ; the tenant by Mrrjtmn^ Ntill n:li<'Vt>d hut buul ' at tiiu will of thu lord.' We kixiw loo that in laKrr day* the heir of a copyhold tenant vny oAea kad 0} pay on 'arbitrary' flite, while in othvr cas«« lonlx hare Httcutwded iu proving ibul. tbe miooewure of the vilMn Ic-oaBla w«re bat tenanta for life*.
Of tbe alionjitinn, of the miIo and parcfaaae, of vtljoin im^ neota we nod little. UV may b« vara that tldi oooU Boi fat «(het«d witboal lh« lord'* loaTe; th« aeUcr caoM ittlo Ih* kkid^ court and Burrendered tbe land into the stewaid't haod, vba thncnpoo admitted the new tenant and gan lam MMn. TIm new tenant paid a fine ; often it would be ona yeor'a vatoe td the tenements But in thi« region there w«nM to hav« bee* but littU* riutoro, and we may be &irly certain that tlw lanb of lhi« period did not allow that new tenanta ooold be faned upon them against their will. If the tenant attemptad t* alienate the tenement without the hrd'n leave, thu wa« a atom of furfi'iturt*'; if he attempted to makd a leawe of it, thti, if a caujK of forfeiturt!, nubjcclod him to an ameroemesc*.
Finnlly we must note tiiat tbe tfliMUit in ril oiQtUy n^anied oa an nnllrea man. n bondman, nV/onia, otrffna. That a free man ahoold hold in rillrinage and up and down the country there may bavo been many 6«e BMO with villein tenomentx : what is more, then likoly eoouglk were many men whooo atatun wnii dubtona Thin ui one of Ike mo«t remarkable potnta in villeina^ ; villein lofiore it of ftr greater prmctical importance than villein utatua To prow thai
nnlnlwiw; Uuw Hum mm Mid talbtin luU Iwilta tmm, lU iui^hm* mmA mliiliiaii hoU Ihaij mam. But Ihn tfa> tmtn h m* rffkiii^T ol Ite wansa Uadi proUU; h to ooi BrMhoM, br umiMml b fM, tal tkm* to ■■ «*«k vork. TIm widow*! rigla la bold Um wlmb or • fortUa of thm immmmti to oAta aiBflh batter mUUJ Ikui thm hmir'm ritftiL TImm •! Ommtmr, OOrt. Bsou. L 410, lb* widow glna ft iMrM and tot thu 1 1 1 w i alilM to m^ff hmU Um Uad t Uw us or dftOKblw. U muh than to, mmM sato %m tm Htm oUm hftU 'latod mdUa* lOtoriL* la it» Diwiilijf «f If^tf^ ^ la.<fc»ato an oltoa titad pua^e wUdi MMU to ilMiwibai dto Own la isn adtoNtHi Ibai aoB* of Ailr MMtonny IBHM kal hHltoU* riiMa Oa dto ■llMa tea^ la U>7 tte aoaki of Okrhtolmck el OMtorbny twli^ Nw Mwwd W • DvvowAdn aiinpr to wlBlt taj bdr «r olkv pm u B rlKbi) UlMfl Caatoa itoiai^ I SW. aal.
1 «MlUbDOtoBoUta(ih*rrior7adDiiritoaifStotoMlto.^
• »ioihotofy»rtr<IMi(ifiiriMMrfa— tMlHaCiMt.MMa t
s Satool I'toM in Muortol Oowta, L ft, tTL
1
CH. I. § 13.] The Ancient Demesne. 383
a man was personally unfree was, as we shall see in the next chapter, a difficult matter, and a case in which a lord had in his own interest to undertake this proof was not very common. So long as the tenant did not make up his mind to quit hearth and home, leaving the means of his livelihood behind him, the lord had seldom to fall back upon an assertion of personal bondage in order to get what he wanted. If the tenant was refractory the lord could distrain him, could take the tenement away for a time or for good and all. For all this however, the ' extents ' of the thirteenth century show that in the estima- tion of their lords — and, we must add, of their neighbours, — the holders of unfree tenements were as a general rule unfree men. This is apparent in * extents * to which the tenants them- selves pledge their oaths; it is plain upon the face of the Hundred Rolls. The juries of dififerent hundreds may choose different phrases ; but in one way or another, either by using such [p. 366] terms as nativus and servus, which imply personal unfreedom, or by laying stress on the payment of the merchet, they generally show that in their opinion the case of a free man holding in villeinage is uncommon and may fairiy be neglected by those who are dealing with large masses of men.
§ 13. The Ancient Demesne^.
The king is a great land-owner. Besides being the supreme The lord of all land, he has many manors of his own ; there is a aemcBue constant flow of lands into and out of the royal hands ; they "J^ *^*' . come to him by escheat and forfeiture, they leave him by gifts estates, and restorations. Now a distinction is drawn among the manors that he has. Some of them constitute, so to spoak, the original endowment of the kingship, they are that ancient demesne of the crown which the Conqueror held when the ^Tcat settlement of the Conquest was completed and Wiis registered in Domesday Book*. What has fallen in since that time is not considered as so permanently annexed to the kingly office; it is not expected of the king that he will keep in his own hands the numerous honours, baronies and manors
' Sic VinoKradoff, Villainage in England, p. 89 ff.
- Si.-e the Eicon. Pomesday, D. B. iv. 75; ' Doniinicalus IV'(;ta ad liegnum
pertincu» in Diiveniscira.'
384
reniire;
[BK.a
I— nml-
with which feloiijr ami trmsun mad want uf hcin am ontt- ■UntJjr nipplying him; rather it i« expectod that h<> «iU giTV these aw»y again. On the other haod. ho ought ooi U* dinipato tbo old dtmoaiM manora. H« doaa givo thorn ool^i and that too to be hcM of him heritably, but often h« TvaMTs a mibaUnttal money rvnt ; thoy arc to be hold uf him in ' tm Hum* Thia t« haitlly a Diatter of taw ; all the king** uaoim aiv the king's to give upon what terms be please* ; vtill hia ancient patrimony is regarded as mote cKieely bonnd up with his office than aru those mere wiadfiUU which now and again oomo to his hands*.
Rtit in law also the distinoUon is trnportant. W« accuHUintiKl to define n ' franduso' as a portion of royal po»sr in the hands uf a subject, so that to speak of the king ■• having franchises would bo a ooDttadiotiao in tonna. Htntw- thelen in early history the king appean as the ftia* of all ftwiehise holders, the fint in point of greatness and Um Ant, it well Diay be, in point of time. Thf king^s sstates are (feo borrow a word frum abroad) ' ioimunitios,' peri>ap> tba nlJsal of ^y all imnmnitics ; they stand outride the normal, uatiotial syslctn ^H of juHtict^', pflioe and floanoe. Indde tbem there prwnila a ' royal, which is also a wignorial. justice, and which difltioet from the onliiiar)' josticv of the realm, even whea is done in the king's name. The tenants on tbo anosnt, Ihsi pcnnanoDt. mauoni uf the crown cqjoy many 'UbsitiaB* whidi Bow from the kingn righu, ihoy are Wi a racy Ugh dsgiwo •XMDpt fri>m all juntict:, nvc that which is done aiwmg ibsis by a oonrt which they oonstitote and which is |Mssiiisd ovor fagr a royal bailiff, exempt to a rety high degree ersB froaa tlto justice of the king*)! ' courts of common kiw ' whan tlioas cu«rto have come inUi fxiMttoce. Thfy know little of tiie sheriff; iKey have not to attend tbo mooU uf the shire or ibo hundred ; Ihoy need not serve as jurors ; wherever they go they pay no tatt ; they are not taxed like other folk ; on the oiher hand lho|y mm liablo u> be tallaged by the king. The king proAls fay ihaas imtntiiutim; hia mauors axv- guvenwd frooi within; the cni* tiratora uf his demewtes eannoi bo distracted from Ihsir dnrias
> Sm rbts. p. S: 'Astl^M ttasMt bUmumii, Hi flfttk Ba L tn. A stoeof seppwt far lUs ■■raasthie oslfa «f Mwsnl Li sss Olshti.
I
CH. I. § 13.] The Ancient Demesne.
865
to hia)\ He attracts meD to his land; the serf who Uvea there unclaimed for year and day is privileged ajifainst re- capture.
When new manors come to the king'a hands they do not enjoy these immunities. On the other hand, when the kiug gives away in fee farm or otherwise one of the ancient manors, the donee takes it with all its privileges. This we may say is an illustration of a general rule of law : — the escheat of a mesne lordship should leave unaltered the rights and duties of those who are the subjects of that lordship, and if a lord puts a mesne between himaelf and his tenant, that tenant should B] neither gain nor lose by the change. Thus, once ancient de- mesne, always ancient demesne. The tenants who have been free of t<ill but liable tu tallage should still be free of toll but liable to tallage, though the king has ceased tu be and the Prior of Barnwell has become their immediate lord.
All this would make the ancient demesne of importauce in the histor}' of political arrangements, in the history of the franchises, of justice, police and finance, though here the fran- chises and immunities enjoyed by the king's estates would have to take their place beside the very similar franchises and immunities enjoyed by the estates of other privileged persona. But we do not at once see why there should be any form of land tenure peculiar to the ancient demesue. However, such a form of land tenure there is.
Briefly stated, the phenomenon which deserves investigation is this:— On the ancient demesne there is a large class of per- sons whose economic and social position is much the same, if not quite the same, as that of the ordinar)* holders in villeinage, but who are very adequately protected by law, or by custom which has all the force of law, in the enjoyment of their tene- ments. This protection is given to them by two remedies spe- cially adapted to meet their case ; the one is ' the little writ of right close according to the custom of the manor,' the other is the writ of Monatraverunt. We will speak first of these reme- dies and ihen of the class for whose soke they exist.
The 'little writ of right cloee' is nut unlike the 'great writ of right patent* This latter is the ordinary- proprietary
> BriUoo, ii. p. 13, tdvei tliiii m the refuoa for tlie little writ of riglit. The ■ofcamin who enjo^ it u-e ttie UUem of tlic kilty's noil, wid dUputc* nbuDt tluwt M>a uc h) be deddMl wilLin iha m&oor b; umple uid rapid proottua*.
P. K. t. 36
Once
Korieat denesDe, alwsya uicUut
dtDMSB*.
Peraliar
tranrpsoa
tbauwfaot
llMMSDft.
Tl»
problenii
•tat«d.
Tb« liuU writ of rigbt.
886
Temtrt,
[bk. n.i
remi'ily Tor one whu ihiulu ihftl he ought lu hold Un*l bjr trvm tenure of a monic lord. Tho writ pnt«iit u direo(«d by Um king to the nionic lord ; it bids him ' hulil full right ' ( rwotum ten«u) to th« demAocbni and adda a threat that if b« b remiv. tho kin^s MhcrifT will tDturfero'. The lord iban, i he hns a otiurt. holds a court, and javtico can there be done to the demandfint, though thera are MtvemI ways in whiok the caao can bo withdrawn from his tnbunal and remoted fint iDto th« oountj court and lb«n into thv king's eonrt Now thm little writ ii a Himilor writ. It a direolod by the Uqk to tbe bailiflfl of the manor* — thin will be m whether thr king ia himwlf the immediate lord of the manor or wb«th4^r it i* ia the hands of a menDO — and it bidn the bailiffs do full right M the demandant 'aooording to the otutom of the uaDor**. Il eootains no threat of the sheriff'H interforonoe, and tliia nay be the reason why it is a ' dose writ ' and not a * patent irnt«* •inoe no one but the recipient, who is not a pablie oAeial, is required to act upon it. Thereupon the court of the proceeds to hear and is fully competent to dotennioe th« Still it acta under eur\'cilUno& If it is going wroog, the sheriff can be sent with four knight« of the coaoty to watch ita pro- ceedings*, and there are means by whkh tike matter can ba brought before the king's oentnU conn*. This writ, we aay* in UM both when the manor is in the king's bud. so that tiM demandant is claiming to hold immediately of him. and when tho manor haa been girtm in a mene lord In the ease the lord himself may be the dcfcndaav 80 long as IJm king is the immediate knd, there can be bo writ aipuaal tho lord ; of course not ; but tho woakl*be tenant oC a fnr acres on the andeot dewwepe is in tUa napBP< no wars* off than the mightiest of the banma ; he who wonk) got jaatica ont of the king must petition for it in homble wisn Bat whan the manor haa been given to a subject, then the writ wiB lie againirt him ; ho nan be reqninxl to do jortioe in a cnso in which, if the complaint be true, he himatlf is iht wd
I
pro-
1 (nuT.xU.«.li Dcsotea.ttSSt B^. Riwr. r. I. " WfaM Iha lord hl—ilf Is Ihs iltfterilsiil> It Is M to Ui bsfUli. MS Bs|. Bmw. 1 1 b.
• H«. 9m. r. 9.
• 11^ Urt wHl M»m4m tJ €mrimm^ &■(. Bnr*. t f k
• Bgrlhsvitoef AM*r4Br<,11i«. tmv.CKh, IL
CH. I. § 13,] 7%e Ancient Demesne.
doer. This ia a remarkable point. The abbot of Ramsiey
holds the mauor of King's Ripton, which is part of the ancient
demesne. Joan of Alconbuiy thinks that she ought to hold
eight acres which are in the abbot's hand. The abbot is
stunmoned once, twice, thrice and then distrained once, twice,
thrice, to Appear in his own court and answer her demand ^
Now so loite: aa the manor is in the king's hand, the case of Mennuiggl o o ' the little
the persons of whom we are speaking may not seem to diifer ^ni-
radically from the case of villein tenants. Any one who claims
to hold ia villeinage is likely to get good enough justice in the
lord's court, provided that his opponent be not the lord. The
difference may Beem to be merely procedural. Wht!u a maa
claims villein laud in an ordinary manor, he proceeds without
0. 870] any writ; ordinary lords do not keep chanceries; when he
cUitns un&ee la&d (for so we will for the moment suppose it to
be) in a manor of which the king is the immediate lord^ and
which 18 regarded as part of the permanent endowment of the
crown, he most nse a writ. This is but a detail For a
moment we may even feel inclined to say that there is nothing
in the distinction but that love for parchment and wax which
ia natural to a government office. Even when it is added that
the court of a manor on the ancient demesne acts under the
supervision of the courts of common law, we may find analogies
for this on the estates of prelates and other great lords. Such a
lord sometimes has a central court, an ' honorial ' court, which
controls the doings of his manorial courts ; the so-called courts
of common law, it may be said, are the king's central court, the
court of the great honour of Elngland. Still, though there
may be some truth in these suggestions, they must not be
suffered to conceal a really important distinction. In the case
of the ancient demesne, even while the manor is immediately
subject to the king, the cojisuetudo manerii is put on a level
with the taw of the realm ; it is enforced by the highest of all
tribunals ; indeed it is lex et consuetudo manerii '. Nor is the
mere use of a writ of no importance ; it solemnly sanctions
the custom. We have far more reason for saying that the
distinction between ' great ' and * little,' between ' close ' and
' Select Pleaa in Manorial CoortB, i. pp. 114-121.
^ Reg. BreT. 10 b : 'Cum secondom Ugem et consaetndinem infra nuuieru quae de huiusmodi antiqao domioloo coronae eustunt haotenni ut dioitor usitatas etc.'
25—2
M
888
Tenure*
[Mt-
' opeo ' than thai the distinction between * writ * and ' do wril ' i» triviiil. But wheu tho manor goes out uf tbo king'* hand, then there in a tnily abnonnol state of affaire; the Idng compels the Itmj tu do justice to claimaula of land who j«t claim DO freehold. A climax ii reached when the lord himwtf hu to answer in the manorial ooart and submit himtHf to ill prooanL
This ii not all. The little writ «cr\-os the turn uf a maa who claims lazkd acoording to the custom of the inaiur ; but the tenanta of whom we are speaking are protected, aod ft^ tected oollcctiroljr. against any increase of their lerTioaa. This IS very plain when the manor is in the banda of a mont toid If he attempts to increase the customary aenrioea, aome of tbt > tenants, acting on bubalf uf all. will gn to the royal dnnesry and obtain a writ against him. Such a writ begins with lh« wofd MotutraverutUK The king addmsee the lord: — 'A, B and Ct men of your manor of .V, which is of the anoeot doms^is of the crown of England, have shown as that yon exact ban them other ca»tonui and sorvioes than those which they and which their ancestors did in the time whfu that WM in thtt handa of our predicwun kings of BngUnd ; tberv- fore we command yon to oeaao from aaeh aiartioos, otfasnriw we shall fuder oar sheriff to interim.' ^le lord being deaf ^ this command, another writ is sent compelling him u> and answer for his disobedienoe before the king or justicea of tho Bench. When the case oomea bafiwe tbe tnyal court, the oomplainants have in the fini plaoe to sImiw that tb» manor is part of iLe ancient demene ; Domaaday Book, is oaad ibr this purpose as a oooclusiva test Than, if tlna Ckct ia proved or admitted, there ariaea the question wbatbar Um Imd has exacted unaooustoroed aervieaa, and if thii la auaaaiad i^ainat hhn. it is a^jadgod thai be ahaU do ao do won. Hap* Umd we see a class of taoanis who an not IraabflUai^ bvl who are fully protected in tho king's court agaioat tbair kri. Of oourwt if the manor is in the king's band, ibara is ■* place for this procedure'. Still if the lenanto allege Iha* Aaf are being opprewad by tho kiog'a baiUA^ tiMj oaa
I
tt4.
■flMs.^ ix 'mt nm Manedl [ ysltemm at bstsnoH QpiaiiaH aw teWlar
fcH. I. § 13.] The Ancient Demesne.
S89
^petition to the king and the matter will be inveBligated in
khe exchequer'.
B] And now we may ank, who are the persons for whose sake Hieciwaa these remedies exist. Bracton in a classical passage tells us BiB^cm^^ that on the king's demesne there arc several kinds of men. In »***™*c"'-
[the first place there are serfs or bom bondmen who were (ie. in the persons of their ancestors) serfs before the Conquest, at the Conquest and after the Conquest, and to this day they perform villein services and uncertain services and they arc bound to do whatever is commanded to them, provided it be lawful and right. And at the Conquest there were free men who freely held their tenements by free services or free customs, and. when they were ejected by the mighty, they came back and received the same tenomenU to holil in villeinage by doing servile works, bat certain and specitied works; and they are called gi^e ascriptitii and none the less are they free men. for, albeit they do 8en*ile works, still they do these, not by reason of personal status, but by reason of their tenure ; and for this reason they cannot bring the assizes of novel disseisin or mort d'ancestor [the freeholder's possessory remedies], for their tenement is \-illeiiiage, though privileged villeinage; they can only bring
[the little writ of right according to the custom of the manor; and for this reason arc they called glebae ascriptitii, for they
t Al to this Uat poist bm Tinogradoff, p. lOS. It U vory probablo that ih* XontlraBerwit did Dot beoome s writ 'of coanw' DDtil & oompAiutiTsly l&te time. It u Dot meDttooed by Glanrili or BrtctoD, nor hare we found it ia any BcgiAnun Brovioto of Henry III.'h reign. There is Botne sign that tbo i}t«p of I making it a writ ' of eourae ' was not taken antU ISW. In that year the HMD of Or«ndon, aaaertinit that Uicy witre on the anoioat dem««De, oumplained of their knrdi to tlu king. The petition is thns Andorsed : ' Let the Chancellor cooTene the jaatic«s and provide for thta and limilar oaaas a ramady to eadors for all time ' : Bot. Pari, i. 60. But such writi were in am early in Heniy UI.'i i«ign: M« Note Book. pL ISSO. 1287. Placit. Abbi«v. 113. LIS; and ««n eKtrexoaly oonuaon in the early years of Edwiwrd I. The coni|>araliv«ly lat« appearaooe of this writ as a writ dt nirrM is do proof that the principle which it eoforeed wa« new; but it ia, aa Vino^adofl has well argued, some prouf that the prooadore against meane lords gnw out of a prooedore against royal bailifla, AjfcffMt the royal bailiffs there woald naturally be no writ ' of eonrtie ' ; if a man veold complain of the long's agents he mast begin with a petition to the king. At to the littlo writ of right, Olanrill does not, and has no oceaaion to meotioD Ihia: in hie day 'original writa* of any kind were still Bom«what new oa nonaal institatM of the law. On the other hand the writ it found in a Begiatnan of Henry III.'s tiwr as a writ df rurni and is carrently mentioned by Bnotoo aa ■ waU-known thing; see Moitlaod, Beigister of Original Writs, Harvard Law ficvin. Ul. im
S90
Tenure,
[bk. il
«njoy the privilege of not being ramored from iho soil to iaag UM they do iheir right senrioee — do m&ttcr to whoee tuod» the king's dcmcme may come ; nor cnn they be compi^lkHl to hold their teuemeutM againat their will. Theu than is anothi* mC of mm on tba king'* dhumtb who bold of the dwn— ■■ hy ibe tumei cuatciinH and villein Mrricefl as the nbovo. and Lh*r du not hold in viU«in«ge uor are thfty Mrfii, nor were ihey Mcfa at or before ibo ConqUMt, but they bold vadtr coftimai which Uioy have made writh the lord, and mow of tfacni bare cbarUc* and noma have not. and, if ihuy are ojeeted fron chair mcnte, they shall (aeoordiug to tome) have the aanM of diaitigin. and their hcin shall have the amse of mart d'aneeaiar. And there are other aort^ uf men in the king'* raanufs and > demetnes^ who there, as might be the case clicwhere. hold frMly in Ave eooage or by military eervioe onder aoB* iDodani fcoff* moit made since the Conqaeot*.
Whereas then on ordinary mazM>n we have, aeeonltng lu Ic^ theocy, but two tenures that most far oar preosol parjmm be diatinguished, on tho aucit'nt deaoaano we have at loaai three. There are (reehoklei* of the commoo kind. boUiBf m free eocage or by military aervioe, and thoy reqtura bo lyadol r«medie«L There an aerff holding in nhaolnto viUaiai^g*. fist batwoan thorn then ia a cImb of tooaoto whom Bnetan cdAy ODOOgh eolla ffUhat oJcr^pCitH bfloaooD they can not be ajortad &om their holdings ; they an fr«e men ; they eaa leovo thar tenemrntK when thry will; they hold by villein aerneea, hal Mrvici'^ which are certain ; they use the little writ of t^t Laotly there is a class to which we may be allowed U> give Ihe name of * couventioncn ' ■. They di^ from the <un yrtiii rather in the origin of their holding and in the nalun of ihair ramediea than in the nbaUiioe of their righta and The OKriptitii anr mippoaed to trace the origin of their back to the Conqueat ; thoy hoU by onoloiBaiy tanon ; iha * conveniioners ' hold under modem agiuaiiiwit^ and it m arguable that, though thi-y do rilloin aerrioas they have the ordinary remedioa of (reebolden.
In another and equally well known paiy wo hoar of the aame four ckuaea. Bractoo ii fpfking now withoot spadnl nfiwaooa to tho ancient demflone, and roaorta thai TJlWa^go
' BnoiaB.L7h;rMa.pr.a,4.
■ Thsw4eaHs||iwqflswiylani>^y.4.
I
CH.I. §13.] I%e AnciefU Demesne, 891'
maj be either absolute or privileged. Absolute villeiiiage is the tenttre of one who. be he free ot be be serf, is bound to do whatever is commanded him, and does not know in the evening what he must do in the morning. Then there is a vUleioage which is not so absolute ; as when land is granted hy covenant to a free man or a serf for fixed, though villein, customs and services. If such a 'conventioner' is ejected, Bracton (dia- allowing the opinion which would give him the freeholder's assizes) holds that his {Ht>per remedy is an action oa the covenant Th^ says he, there is another kind of villeinage 874 which is held of the king from the Conquest of England, which is called villein socage, and is villeinage though privileged villdnage ; for the tenants of the king's demesnes have this privilege that tiiey may not be removed from the soil so l<mg 88 they can and will do their dne service, and these 'villein Bokemen' are properly called glebae asoriptiitii; they do villein, but fixed and specified, services. Lastly, he once more remarks that in a royal manor there may be knights and freeholders, holding by military service or by free socage ^
These freeholders we may dismiss from our minds; they ^fag have and they require no peculiar remedies ; indeed, the term tounti. ' ancient demesne ' having begun to imply peculiar remedies, we find it contrasted with ' freehold,' and io a judgment of Edward I.'s reign we are told that the lord of the manor, be he the king or no, can change ' ancient demesne' into * freehold ' by enfeoffing a tenant"; after such a feoffment the tenement is no longer ancient demesne, but 'is at the common law'.' The case also of the ' conventioners ' we may for a while postpone, for it is not very important, though it is very curious. There remain two classes of tenants : those who hold in absolute villeinage and those who in Bracton's terms hold in privileged villeinage, or in villein socage, and who are villein sokemen and ' ascript to [i.e* irremovable from] the soil.' It is the men of this last class who use the little writ of right.
Such is the legal doctrine, and at some points it corre- The theory sponds well with what we can learn of actual arrangements. b7pr«cUc«.
> Bracton, (. 208 b.
) PUcit. Abbrev. p. 233 (Berks.): 'et onm licet oailibet oapittli domino matare antiqaom domtnicum in libemm tenementom et maxime dominot Bex.'
* Ibid. p. 228 (Berks.) ; cf . ibid. p. 241 (Ebor.) ; Y. B. 30-1 Edw. L 878.
892
Tenvfw:
[bk. n.
On an ordinary manor wo rar«ly find more than two oLmbm of tonants that can be called Icji^I cloaBoa. We maj find man thaa two eoonomio elanea: — in the common caao there will ba a claM of virgateni, a daas of half<vifgat«nf a ok« of croftcm and ootters, and thoro may well be a clas of tenanta who pay rents and do but little labour, while other clanw mnak do *week work* — we find oenmutrii mb well aa op«rarii. AW^ m alraady «id. we may find tome i«nanta (bat hardly daan* of tenanta) about whoso tenure wo may doubt wbethvr it be froebold or no. Still in f^nrral there is a clear dicbotoay; there are froeholdcn nod then there ia one othor grwat rIaM The latter may be called by dtfiferent names aouorfiig to tba i^fl taHte of the juroni; ita membrn may ht^ termed Mrn, moIhi^ bondi, villuni, ciutumarii. con^m«iud%narii ; but legally thwir tcDuro w always the mmc ; they hold neeording to thm uurtOB of the manor but their tcnaro is uDtvcognixod by tho Ung^ oouTta. WfacD, however, in turning over tb* Hundmd Botti wo ooroe ujxiu n. manor of the ancient demoine, wo ofUn ■■• a uion elaborate vtmlificatioii, and in particular we read of •okonoa; and oonvenely when we eoe this wire eklMmle fltmtifloatioQ and discover aokemen. we eaa niBally laun Ikei we are on the ancient deiaeae. Thus at Soham in Cambrid|p»- ehire, bendee ordinary froeholdcn. there are free wilreineii, bead •okenMn. and viUani. and at Fordbam there are erdumj feee> holden, aokeroon and mllani\ We hardly n««d Uke letltaHiwy of Domesday Book: SaAam mantriiitm iZiyif, FanfitsM ^ wumoa v»Ua RtgUK In Huntingdonahtre at Brmmptoa ihsia are frveholdeie. free aokemcn, and bond aokoawn. at Alooabafy Dnmerotts lokenien'; the oatuml infereaoe may be nrifled in Doin««d»y Book'. No one oould look thmugb tbe Odbid- •hire surveys without singling out the manor of Baaaiagfl with ita many Uheri aok^manni, who are kept apart ftoei Uhtn lannte. and infanrtng that it waa a manor of ao oidiasiy load. It is so with the court rollik To my DoUung of IW * liltifl writs of right * which are stitched to their tlie nulls of a manor on the andenfc d^mi—e m by entries which show that land is freely bot^t nad eoU*, and if in tht* Hundred RoIU wo are told that the
I
I
* B. a. IL Wl-4. « Ik. B. L ISi.
•D. SLLVeb. •K.B.a. Ttl.
•■.IL«»-U.
FcH. I. § 13.] The Ancient Demesne.
898
^
of Che8t<?rton have sold their half-virgatea, we hardly need look to see whether Chesterton be not dovdnica villa Regis \
We have, howover, no little difficulty in marking off Bracton's iMfllcoIty 'absolate villeinaj^e' from his ' privileged villeinage.' His test'r^Kib^ is the 'certainty' or * uncertainty' of the services due from the '*"*"'*'■ tenant. But. as we have already seen, there larks on ambiguity in these simple terms. If by saying that a tenant owes ser- vitia certa et nominala, we mean that the terms of his tenure are defended by legal remedies, remedies the administratiou of which either belongs to, or is at least supervised by, the highest court in the laud, then we are treading a vicious circle: the remedies are given because the services are certain, the services certain because the remedies arc given. If, on the other , we look at the nature of the services, and say that they are certain if they can be defined without any reference to the lord's will, then we exact too much from those who are to claim the law's protection. The men of King's Riptoti in Huntingdon- shire used the little writ of right, they used the Monsiraverunt, they distrained their lord, the abbot of Ramsey, to answer them in the manorial court; but, according to an 'extent' made by their representatives, they were bound to work one day a week all the year round ' at whatever work he commanded them ' and three days a week during August and September. Of them it might well be said thai when they went to bed on Sunday uight they did not know what they would have to do on Monday. In short, here as when we were outside the ancient demesne we come upon a matter of degree. There is hardly a tenant of whom it can be said that no custom prevents him from having to do just whatever sen'ices the lord may command ; on the other hand, there is hardly a tenant doing any substantial amount of agricultural labour, of whom it can be said that he has never to attend to the lord's will ; even the true free- bolder must do his boon works in autumn, and the very cjweuce uf a boon work is that, within some spacious limit, described by such a word as 'harvest-time/ it must be done when it is asked for. How low down in the social and economic scale the protection given by the little writ and the Monstrat^eruni would go is excellently shown by the case of Ripton Begis. When pffened in pleoding, the tenants admitted that ever since Heiii7 I.'s day they had been pacing arbitrary reliefs, arbitrary * B. U. ii. 40il-8.
394
Tmurt.
[bk. n.
diScaUiv*.
■aliBMgr
taUogea. arbHnry merohet; btrt atiU thejr oaed tht tfttla wA atid the MonttrawerwU, and, if the abbot sought to make ibMft work two daya a week inalead of one, they had their reincdy in the king's court'.
This being no. the lawyers neTor Mem able to obtain aay firm hold for tbsir theory. Tbey can repeat that titan are three rlwwwi of teoanta, free men. trilloina and eokemoo ; bat how to dimw the lino between mere villehiaft* mid lb* tomft tenure of ancient demesne is a difficult problem*. It m not as though we hati merely to fix the diBtixtctioo at aomo odu poiat in a aingle scale of degrees ; there are many Males as wcU as many degreea Besidee the scale of agricultural labour with its infinite particulara, there are the seatea of talli^, of reUaC of beriot. of mon^et. Bven iC following Btaetoo, we mj that tW sokeman should at least be penonally free and Am to qoH Ua tenement, the men of Kinft'i^ Ripton will appval agaimt our judgment, for at least thvy do all that free men ongfat B0i fee do according to legal thcurieii. They pay arbitiary lall^flk, arbitrary mcrchft, they can not hnvt* their sooa ordakwd. tbey may uut Imvu the manor without the lord's besttos; aad ysl, when all this has been proved against them, tbegr go oa wiag the little writ of right and distraining their lord*. Our law new surmounted these difficulties until teottf* in rillaiMge was protected hy the king's oonrt under the naana of emiyfaaM tonurt', and the line bvtwocn common oopybold and the prtri- teged villttinAge of the aodsnC damMoe htd baooaw of bnb iignifloanon, Sven tben manx a onrioosv if amrnctant. tern was left for lawyers to fight orcr. ty On the other bud. to mark off the tenure of the which is sometimes called 'aokemanryV from the frseheld tenure known as fne sooe^ was no easy task : the very wwds that we employ in stating the problem abow that this ns m
• Ctn. Bant. i. B»7; Um riwi Is Ksaortal Ossm, W-im
> T. B. 11-S Kilw. 1. p. 40tt T. B. 1 Kil*. a t t».
•aMfliifcnTim, ». &&.vlL4SI,MsU*i«flOT«r- IsslabsilUsks Ihsl lbs ass sT Biploa IkOad te |SM» Itel nay < TiMm,' sad no iembk it !■ Itm Ihst ta ana mnm thaf wm vay *iB«ssi7 tUWdb': ilb«y <>w«4 kaH ud 4i«nlNr ■■ ><■■ «■< ««• to mamf iiyiiii •Qbjwi lo • tU viii ef Um lonL' bsl, %m sU tftM. Um; bw« pa
dajfhwmkiaMnitdam. So th«]r kn • pctriUcaa tOUbs.*
« T. B. n^ nim. L fi SM: -Ma bsraa Hal m MkasHiila.' T. A. »4 Uw.l.piUTi *^fM«eai
;r«^!
i
CH. L § 13.] The Ancient Demesne. 3d5
The question whether 'the cnstomaiy freeholders' who appear in our later books were really freeholdets and as such entitled to vote in the election of knights of the shire, the question which required for its solution, not merely the learning of a Blackstone, but the authority of an axA of parliaments ^ras a question prepared of old. The sokeman on the ancient demesne can not usually be accounted a freeholder; the Itberi sokmumni are marked off in the 'extents' from the IStere tenentea; they use the little writ of right: they can not use .878] the great writ or the possessory aasixes which speak of seisin of free tenement But is this so always? There is extant an elaborate opinion given by a lawyer of Edward L's day, one Aunger of Bipon, and it is found in so many manuscripts that certainly it must have been considered v^ sound and useful'. He says that, according to his masters, there are three esses in which a tenant, who holds part of the seal of the ancient demesne, may use the assixe of novel disseisin. The first is the case of a freeholder who holds in an ancient demesne manor, and this we may pass by. The second is where one. of the sokemen has enfeoffed some free 'outsider' (Ubw homo extrinsecus) and this feoffee has been left undisturbed for a while by the lord ; if after this he is ejected by the lord or any other, he can bring the assize. This case is quite intelligible because if my villein mskkes a feoffment, I must eject the feoffee at once or not at all, since otherwise he will be able to bring the assize against me'; — for the law of the thirteenth century is rigorous against self-help. But thirdly, if any ' outsider ' ejects a sokeman, the latter can bring the assize ; this must be so (argues Aunger) for if someone ejects my mere villein, that villein by my leave will be able to recover in an assize ; a fortiori we argue to the case of a sokeman whose estate is superior to that of a villein*. Thus, according to this remarkable opinion, the term ' free ' when applied to a
1 Stat. 31 Geo. II. o. 14.
* Printed b; Horwood, T. B. 20-1 Edw. I. p. xviii. The doooment tB tran- stuibed along with the apooryphal Btatatw and ii Bometimes entitled Statutum de Antiquo Dominieo.
* Note Book, pi. 1203.
* There seems to be a sad logical gap In this argument. The ejected villein, if with his lord's permission he brooght an assize, would have to bring it in his lord^ name, bat Aonger seems certainly to ntppose that the tokenuin ooold bring it in his own name.
896
Tbume.
[bk. a
illMcnud
tcDonuml u a rvUtive term — wo shall see in the next ch^itar that the tonn *fre«' whun uppliod to a peraoa U a raUttv* lerm — for while m between himself and bis lord tbe aotrnwiM ti no rrucholder, still aa regarda all 'outmden ' he can my that he hiw X free tenement, and, if ejected by them, he oan make good ibe ■Mfiim'nn that he haa boeo dianeiBed tU libero inmmmio $uo. ThuB we see that the perplexing iennioology of him davN M'hich knows of 'cuntomaiy freeholds' which are 'priri* Uiged copyhokU,' has a very ancient rooU Even the lanyw* of the thirtccnUi century, or some of them, mainUinod UisA for certun purpoaefl thu aokeman had ' a free tonmnCDt*.' Nor is this strange, for the class which was using the little writ of right wnii niiscelliuicotui. If, on tbe ods bond, it inoladad. men like those of lung's Kiplon who w«r» stiunpiid with vnrf ooBunoD mark of penooal servility, it indndad oo tbe oibir hand men who had raloabla intcmto in tapamwil tbey sold oiid mortgaged and salUed updo tbdr without any interfereoea on tba part of tb^ lord Socb bm nre hnmght twfore tut by a judgmt'nl of Edward L'a day; wheu they 9c\\ their lands they du not even mncoder tbaii into the lord's hand, they make a hoffinit as a woaM ; they make obarten of feoffbieDt. and then tbe m enroUod in the manorial eourt ; for nil this. boweTer, ' no wht ntna among them bat tbe little writ of rigfat".'
Wo roust not hero roooant the Mibaeqaent bam of tbe tenants on the ancient demeioe. nor woobl Uua be maf, for it is clear that, it the law itself did nol ondeiigD moeb ofaeafs* the terms to which it wss cxprsssed were aoslabi*. Bat w* a»y sole that an opinioo grew up thai the daas fuleutwl kf tbe little writ of right was really a olase of fiwebolden^ m4 then the infcrvoce was drawn that tenants who tbdr teacmenta. not io the freeholder's method by bat by a sorrender into the banda of the loni, amid do* oae ifce Utile writ because tbey were not (reeholden. This dimime oomee to the front early in tbe fifteenth cvntttry, at a ttrna, that
* ■eiBlBtartf^*saadth*swiaiAl7ilui Um ik* sMUat ^m^ lbs
lotddiMiteM Um laaol, ihs laaaai stt7«l«ctbM*MBsaMifualBlhaaaBaKW ooort S&4 m {Intboiim^) sstlao in thm Ua**! CMrt: T. B. 41 BAv. UL L ■ iUitt, |i). IS): «l Ub. Am. t t&I. pL 7. Sm bteC f H«l IT. a. ^ »h^ iteo lUt b; tttmia* ttw lord •*• diaviMr eaa soakd cfsdp Us jsfMMlM akJ feme a «lipa«i •kooi s MMMOt oo Iki BMilMl teMMt Men lbs ti^^ I ■ risslt. Akbiwr. MA-T.
i
I. §13.]
The Ancient Demesne.
397
I
■Co:
is, when it wm no longer capable of doing much harm to those 'sokemen of ba.se teoure' whom it excluded from the benefits of the little writ, since under the name of copyholders they were on the point of obtaining a perfectly adequate protection under other wriUi. But, as already said, the difficulty was prepared of old'.
And now two questions may occur to us. First, why should Wbyjj* ere be a peculiar class of customary tenants on those manors treatasiit hich have buen in the king's hand ever since the Norraan ucinit nquest? Secondly, why should the king interfcre for the J^J^J^.
wh<
Ifroi Bie Rnc
protection of customiiry tenants even when those mannrs have
passed out of his own hand ? The second (|UL'9tion is the more
easily answered. There has been an application of a very
general rule of law which has come before us on more than one
occasion. It may be thus stated : — the transfer of a !oi*dship
from one person to another should not affect the position of the
tenants ; as regards them it is re^ inter alios acta. When an
honour eacheats to the king, the tenants of that honour do
not become liable to the special burdens which lie on those
who are rf^ga^ded as having held immediately of the crown
>iQ all time; the honour has still a notional existence for
leir benefit. Even so when the king parts with one of bis
'ftncient manors and puts a mesne lord over it, the tenants are
neither to gain nor to loee by this transaction ; as regards them,
their rights and duties, the manor is still conceived as part of
^^he royal demesne. A bye motive may secure the observance
^B ' Tbe nuHit importanl cue from the later middle ■0>i seoma K> be Y. B. 14 fpeii. IV. t. S4 (Hil. pi. bl). HAokfunl tbcro llsea tbe tcrminologjr of later tinn ; for oonipkre FiU. Kal. Hrer, t. 12 a. On the uiBient demeane ibere ore [b) ftokenxin of Creo teDnra, who are (r«e holders, who aso tb« little vrit and who, ax it *asiiM, eonroj bj- feoflmeDt, and (c) wkemaa of baas tanore who bold b; the rod, who mrreoder into the lord'i haod, who ate luiprotected by tbe little vrit, bot eae for tbeii tenement* by bill [i.t. petition] in the lord's ooort. Of any (<t} tooaata by knight's aorrioe who may bold of an ancient domsane manor, no mention ia hero made, «iooe their tennre Is hardly oonceivod as a ' tenure in ancient demesoe.' The doctrine of the lhtrt«nth century makes a dtfletcnt diatribution ; there are (a) freeholders, who may hold either by knight's ■errioe or in free aoeoge and who have tbe ordinary freeholder's rcmediM; (6) the tenautA in privilagsd nlleinago, who have ifao litlto writ and who asu«lly foarvy by iurrendpr ; (c) the ti^nnnts in absulata vUlotnago, who at least in strict law hare no protected t«dnant riRht, Th« question disouased in later days. 'In whom is tbe freehold? Is it in the lord, or is it in the tenant?' iapUea a eoooeptlon of '(/m tiMbold' to whkh the lawyen o( Honry IlL's day had hardly come.
398
Tenmre.
[br. u.
of this fi^neral rule in the cano that U now befaw na. Tb« hanlly rvgards thaw nuoura u having utt«rly ouMsd lu be for. to My Dotlking of m powiblG act of reminptioo* utd U nothing of eachoata and fbrfcitnraB. many of tbeae maoon an let out U) the moine lords at MihtttntJal RBla; ibitjr M* held at ' feo fann ' and the king i« GoaeftriMd to tM tlMbt tba security for his rent is not impaired. It would be impairad w(*rc the- itiiuints ill truit^d. Thbi point, uf importanea in social history, ia brought out by nuuiy actions for * waale* wisd CF' hy wards against their guarcUans ; the guardian has om OMnly out down troM and piilli^l down houMW. but he has 'destroyed.' ' axil«id ' or impovL^rishod the villeins'. Still the daain bo kaap wqW itookiHl and woU mmnagod the mason wbiob supply tb* king with bit fmt fann rents, can serve bat to give a tilUs additional force to a geovral rale of law. Il is a nil* wbicfc outs both wayfc If m 6nd tewuits eagvriy ooDloading tbal they ars on ths privik^ed soil, we may abu find, though hardly so often, a lord affirming that htn manor is on the anffiwi demesne whilu tbu Lunant di*nivs ihiii. The spedal law iar the old patrimony of th« king will pro6t now one and nov the other party to thf Inaunr*.
We come then to the main t|uc«tiua Why on those rasDOfs which have never lefl the kings hand is tbora a Urge class of tanaata such as are hardly to bo found elsewhere, a dsas «f '■okemeo/ holding in ' prinlegod villuinoge'r All the «i that we have conspires to tell us that tbsn has besii leas 00 these mauure than else when?, anil that the pbcDooMOoa bolfai* oa is an nnumal degree of ooosorvatism. In the ftfsl phne. lbs Tory iinntc uf ' ondcnt demcsoo' shorn us that iht kw sappoas itself to be oonsGrvativo. It is maintaining the Cooqusst settis* mentk To decide the qoestiao whetbtr a ■hbot be domaaie or no, it will go hook fiv beyood oU ordfaMrr
> Flrts. p. S-l; Britton, L ttl-l.
*Bm Nets Boak, |«. ttS: 'dMtnult filiwM ^boa nsr; pL «1: *tiUfe«tt tp«aiD fttsaTtl'*
■ Tha tard dkUafaM tk* MdmI Car (ha lord plMdt kOttlMU dMMM: T. B. U liv LI. Utim iiomtiom U b«vMB uta d«tt«toiAiovtlttit^lsii4issMtaBi4aaaaM| httUtk* MkMMin7 uhI ot41au7 fkwbaiaiM- (bM lUi MBMailsa wlD )oc4, Isr b* woUl nifaw ihsi • «>• la aUcb W b lb* BMHOtlAl aoan Uwb ihal M ikaoU ■• halara Ika Usf^ J
!H. I. § 13.] The A^ident Demesne,
399
limitatioa and proscription, far bejond ' the beginning of legal memory ' ; it nill be content with no evidence save that of the great survey. Nay in theory the ancient demesne gained its specific quality before Domesday Book was made. The lawyers of the fourteenth centur)* had some doubts as to the exact moment of time at which the manor must have been in the king's hand in order to make it ancient demesne for good and all, w; and the rule of endence that they had adopted, namely that no testimony was admissible save that of Domesday Book, must have tended to cause some little confusion ; still on the whole they think that the privileged manors are ' the manors of St £dward ''. In this, though hardly in any other, context they will go behind the Norman Conquest. In the second placn, Bmcton regards these sokemen as an ancient race ; it holds it« lands under a great concession mode to it soon after the Conquest If new settlers come onto the ancient demesne, whatever rights they may gain under agreements made with their lords, they are not sokemen nor entitled to the peculiar privileges of sokemen. ^H^his theory, however difficult of application two centurie* ^^iler the Conquest, was no idle theory ; we are cunstantly re- minded that the special characteristics of the ancient demesne, if they inhere in certain tenements, inhere also iu 'the blood of the sokemen.' Thus when the men of Tavistock have re-
Kurse to a Monslramrunt, it is objected that many of them B advmtHii*. Thus the men of Kiug's Ripton hold them- Ivea to be a privileged race ; even the ordinarj' rules of inheritance must \ield when the choice is between a claimant who is not ' of the blood of the vill ' and one who is'. Thus
» T. B. 15 Bdw. II, f. -155; T. U. 13-4 Edw. HI. CPik«). p. 102 ; Fit«. Abr. Jtuneim Demant, pU 15; T. B. 49 Edw. IU. f. S2-S; Viiiogndoff, p. IHI. The rale u to the exolauvs qm of Domaadiy muy veil be of compuatiTsly Utegravth ; ia osia ot (be ckrliest e&AM the therifl U directed to inqaira whether the land be anoienl demeeae or no; Placil. Abbrvr. p. 119 (Staf.). Id eome eawi the ■ppeal to Domeeday woaM bare been inislcadin|[. No one, tor example, ooald dieeover from that record that the manor of Kin^'e Ripton was ancient demeeoe: probabl; il ia there reckoned aa a member of au adjoining manor, BtiU ite lord wlieu at war with bie refnkotory tenantn raiwd no qoestion aa to iU qoality; Selaet Pleas in Maoohal CourU, i. p. 99.
* Placit. Abbiev. 270-1 : Vinogradoff, llS-9. Vinogradoil'ii critielim of tbii deeiiion ieetna nooeocanrily MTcre. All that oaa bo Mid ogaioat the judgee ia that tbtgr appare&tly gave one bad reason for a BOttnd jod^nuint. A jury bad (oond that the men of Taviitock were of e«rrile eondition ; tbii wai foondatloo for the deoiaioD.
> 8«tet Pleaa in Maoorial Conrts, i. lOfi-O.
400
Tenure,
[lUL a
Whytha kkif Ml.
Agun, Aunger of Ripon troRla the tittle mrit of right u > remedy which haa place only where both partiM ace bora Bokeinen, or when one is a bora sokcmaii and the oibflr iIm lofd; against an «c<rifw«cw or/orturctu ihuro may be an aMtaa'. Thirdly, withoqt examining at any Ifngih the tenninolQgjr of M^ DouefKlay Book, wo can my at uncu that the aodeat dmmtmm nanon of the thirteenth century have preeerred. whibr utbv manors have laat,iome featureit which in tho CooqiMnr'a earrey are by no meaw peculiar to the royal vilUgea; it is oo lb* ancient demeene that we find moru ihau one legal oins of tumnla whuaro not fireehulden; it ie on (he ancient da mean n that find large groupa of tenants still rejoicing in the ■noieat of eokemen.
Why has the king here shown himself as a eonaenrBtive Certainly wc can not answer that it is in the neton of to bo oonservatire or solve the problem by an ellmboo lo incrtnesa of a government bnreMi. In matt«ni of law the rojnt power has been the great disturbing fbroe, ihe king baa faesn the radical reformer. Of contao it is well to ohaerve that oa a royal manor there hardly can be any of thoM ' half-rigfals ' (if such a Ifmi may be invented) that may exiat elsowb«v«>. Tho cudtom of a royal manor, if the king roougiiiaw it at muni iftaiid ou much the same k-vvl aH the taw of Uw land; vrill be admiustered by royal officers, and in the laat raaort will be admixiiatered by royal offiocn who happen lo be jodgee of the supreme court of law. Still the king auAm and hold* himself bonnd to suffer it, and hta jodgea. far MMtnpU firacton< say that he is bound to snflar it, aay tbat the eokemen are immovable lo long aa they do their aerriBat aay that their services are territia ctr^a «C iweiisntB What we have to attribute to the king in a apodal d«gne ia no ■■■ inertnees, nor ia it enlightened self-interest (for this w* ahoaU look to the monastic rathvr than to the royal oslales) bat il ii a n^MCt for custom, an aoknowlodgmeut that the mlea ad- nuttiatered in his manorial courta havo all tha fctee of kw. Perhaps it is no pandox that he keeps ihteoaum best
> T. B. •ft-tl Uw. L p. Bis. Ot risii, y. 4i Tieftwsi mi «Mi knisMDodl WiiMiiM lattr m taaion oaifen tvsiMaB ksteasl mm^ lieiiiiwiMM pw tnniliini In tt V utr I'siir ' •iMm.ILU: 4s AnUdM tMsbl«psrbaimiMaMMr4slMiM4i<«iMtMM« Bm Abo T. D. 11-9 Uw. L r- ML
I. L § 13-] The Ancient Demesne.
401
there caa be do talk of his bciDg foi>:od to keep it. Another
■^prd will draw a firm line between the rights of his freehold
^^BuautM, which he can be compelled to observe, and the rights,
^^B such they are to be called, of his customary tenants, which
' be can ignore with impunity, and, as a remedy in the king's
H^upreme court is more and more rcgaided ba a touchstone of
^fivery would-be right, he will begin to reason that there is no
right where there is no compulsion. It is otherwise with the
king. If he ejects his sokeman, no action will lie against him ;
none will lie against him if be di^iseises the palatine earl. In
iither case the person wronged can but petition for right ; in
ilher case the wrongdoer must answer for his act before the
le tribunal competent to try him ; he must appear before the
we of Ck>d. Morally the king can never be as irresponsible
'u is another lord of a manor, just because legally no bouuds,
^^jr no definite bounds, are set to his irresponaJbiUty. Men will
^^ot easily distinguish between bis two capacities. If a land*
lord, he is still the king, the supreme judge over alt men, the
fountain of justice ; he has sworn to do justice ; the abbot, the
baron, the knight have taken no such oath. We may add that
tbe king is bound to maintain the laws and customs of 'the
glorious king St EdwanJ his predecessor.' Should he not then
begin at home f It is as the tenants of St E^lword that the
men of the ancient demesne claim his protection'.
^K Speaking generally we have said that outside the ancient Ciumdbt
^HKnesne all the tenures of the miu-freeholding peasantry are in
law one tenure, tenure in villeinage. This is the doctrine of the
lawyers of the thirteenth century, and on the whole it is well
le out by the manorial 'extents.' Elconomically considered
kcre ore many modes of peasant tenure, for the tenement may
Urge or Bmall, the agricultural services may be light or
lyy, ' week work ' may be exacted or money may be taken :
it just as the modem lawyer makes ' leasehold tenure ' cover
Buch economically different things as a lease of a house in
London and a lease of a form, a lease for a year and a lease
for a thousand years, beneficial leases and leasee at rack rent,
w all these modes of peasant tenui-e can be brought under
le head. The legal quality which they have in common and
jrhich keeps them togythpr, is, wc may gay, their customary
lity ; they are not protected by the law of the king's coarta,
^ Bm the eorotuOlon oftth of Bdwud IL, SlubU, CodsL HisL u. 317.
r. ». 1. S6
freehold.
402
MCSttlft,
["«•
bat they are protectod, nH)re or Ion peifccUy, bjr the uiminiiiterecl in the mmoornJ oonrta. Lafailjr tlujr fana tennro, bocauso in all CMW th« Idod of proiaction thai thiujf rocsiro 'us th« Mune. In thU quality ihoiv mn do d^gwai, or aone that oaa be fixed with k^ pneittNL Of cooxm tkmm ^
are good and bad Undkmb. laadloidi wbo rwpaol ifctt landlordu who break it, cooaervativi} landlonb and impravii^ landlords; but all thia ia no matter of law. What w« do 004 see is that one and the oame landlord in one and I1m» mum manor adroito that he baa diven rlswwi of DOO-fttwboUi^ tananta, which differ frum each olhur in tho validity of lh«u tennre ; what we do not see is a ' privileged ' baaido aa ' afaa»> Inte' villeinaga Still there are exoeptiou. and perha|ii^ they all coUecLud, they would form a ooMidamble maa: particular if tho docameots ooboonuog Kent, &ut Angl and Xurthuuibria wars patiently examinod. Id a of the twelfth century, in the Black Book of PateH»onxigh. we still Rnd on oo« and the mme manor variow ctamm el tenants buuring the names which are fimiiliar to all wh« read Domeeday Book. Thera are laige groups of toekgmmmi wbe are kepi wvW n{nrt (ma the vtUani, but wbo veny probiUy oould not have made good a claim to be oomidBred a* ft«»> hidden in tho king's oourt'. Even in the Hundrvd Rolk vs may, though as a rarity, find a olaas of aokeaDcn marhed of from the fnebi^en on the one hand and the lenaata ia villauiage on the other, tlKmgh the nanor is not *m the aadunt demesn& It is so at Swavesey in Guni Vfhvn Domcwday Book was raado Count Alan bold it, is still held by Ellen de la Zooebe *aa of th« beOBttr id Britanny*. Sha baa ftvoboU taBaats. a gnwp of piUam «l boM de miUmaffio^ a gmnp at ooCtaia; but 1 a group of sofaeuUBM who hold soMeed*. In tho Dflrth 'feenanta in drengaga' an severed finxn the freehoklsea aad frocu the 'tenanta in bondage ';' and, if the Kettfiiah 'pvafaDan' ■Dooaaded in making ' gavelkiDd * a fmhold laonra, and in oeaa respects a privileged fteehold tenure, sinoe peculiarly che^ and aesiy remediea far ita ptotactino were allowed lhs«, llbeir
1 Ohfea. Patrob. f. leo I '•! si. ■ taiotaU iaamtii doodaeB.* > B. H. B. M»-ITOi
> BoidM BMk. Md fi^ nmiiri aw^. t^ \
1
■ * *■
CH. I. § 13.] The Ancient Demesne. 403
tenure was still spoken of as though it were not absolutely ' free '; it may be contrasted with ' frank fee ' just as the tenure 96] of the king's sokemen may be contrasted with ' frank fee '.*
To this we must add that modem courts of law have from OoBtonuuy time to time been puzzled by the appearance before them of modem classes of tenants seeming to occupy a middle state between *™*"'" that of freeholders and that of copyholders. They are said to hold 'according to the custom of the manor,' but not 'at the will of the lord'; they convey their tenements sometimes by surrender and admittance in the lord's court, sometimes by a deed of bargain and sale followed by an admittance ; often they are subject to some of the usual burdens of copyhold tenure. They have come sometimes from manors which formed part of the ancient demesne, sometimes from other manors ; in par- ticular they have often come from a part of England in which, if Domesday Book be the final test, there can be no ancient demesne, namely, from the northernmost counties. Now it would be foolish to argue that the ancestors in law of any given group of such tenants enjoyed in the thirteenth century a condition superior to that of the ordinary tenants in villeinage. The full formula which is supposed to describe the tenure of the copyholder — ' to hold at the will of the lord according to the custom of the manor' — is seldom found on the earliest court rolls. Any set of early court rolls is likely to show many variations in the phrases used about one and the same set of tenements, and in any particular case the omission of all allu- sion to the will of the lord from the formula which became current in the manorial court or the steward's office, may be of recent origin and the outcome of an accident. An example may show bow rash such inferences may be. The Dean and Chapter, successors of the Prior and Convent, of Durham have (it is said) no copyholders, having succeeded in proving that their peasant tenants held only for life and without any right of renewal. The Bishop of Durham has, or lately had, plenty of cnpyhoideis. But in all probability the explanation of this <liffi.Tence is to be found in what from our point of view are compamtivt'ly modem time.s. The convent, like many other
' I'lacit. Abbrev. p. 2HS : in I'i'.ls the whole county [court] of Kent is asked the quiiHtion hf>w tenements lield in j-'uvelkind can be changed into librrum feodum. Spelman, Gloss, h. v. S'ikrminiriii gives from a liegiater of Christ Church, Canterbury, a remarkuble clasaiflcation of tenures.
26—2
404
Tetwrt,
[hkT
for*
III ami
religioiu houseH, took steps to prevent its villein or 'bondige' tenomente from being heritabto ib f^ct; thv 'corporntino toSe* «M lew Ciir-frif^hted tbao the 'corpormtioD aggrugat*'.' And again, the modern cmam which tctroduc* Oft to 'ettstomaij frM- holdeni' seldom t«U us of more than one oUm of ciwtfjwimry tenants on tho manor that is in qantion: — on that SDaoor there are no tesiutls who are «id to huld ' at the will of Um lonL* Still when all tho modern vvidcnoo is taken in tho masa. it suppurui the tnfitfBDca that we ahottU hava drawn from the »ia\e of the anoiuit demasDa Thai inrerano* is thai Um Toy geneml afaaeoce in the thirteenth century of any daai of tenants ni«diat« between the freohokleta, who eiijov full and immediate royal protection, and the cnstomaiy tenauu. who ( men arw beginning to aay) huld at the will of the lonl, late origin, the effect of legal rules and legal theories than of ancient economic facta.
With its newly centralized ruyal jnatice, tho law of th» thirteenth century has no place fur the sokematt. Bran when he is preserved on the royal demcone, it hardly knows how to <iaat with him, can hanlly decide wht'tber he is a fruoboldor, thinb that he may be a freeholder as regards some and not ss raganb othen. Outside the ancieDt demesne it proposes the dilein— » * PkvtMted by the king or not protected by the Idag, and if oot proteoted by him, then held at the will uf the lonL* Bai if wa strive to go behind the amazing activity of the king's ooaiK ss behind a new thing, if we think of the ffMfaolder as hsmng la go in the first instance lo bis lord's court and hanUy able ss a matter of lact to get much further, then the e4ge of th» dilemmn is blunted. That the application of this logieel weapon did some immediate harm to the higher dasass uf peasants can hardly be doubted. Our legal terminology doss indeed snggest that not a few of them, in partioalsr mi% a firs of the aoksmcn. Ml at ooee on the right side of th* Has. Bsv elas can it hap[H't) that * free socage ' became iba mubs of a fim tcnurv. a tenure by which oven in Bnctco's day banms aad knightji an well content to boldr Bal. on the whala, Iha dtK;tjinc of tho lawyers aeema to have been that aay able amount of labour aerrice most be villein senrica, mask the tenure unfree and unprutected, beoanss it eannol bnt W soriee which in msny particoUn will be done u tho wiD «f Ihs ^* ■ Uukam lUteow BolU, iMMdaMba. p^ nxt..sn«ft.
CH. L § 13.] 77ie Ancient Demesne.
405
lord. Such a doctrine must have condemned many a sokoman of the twelfth century to hold in villeinage.
But of the paRt history nf those tenures which are not The freehold we must not speak in this place, for, however sharply t^oucn/ the lawyers may contrast the two, villein tennre is. as a matter of feci, clcuiely connected with villein status, a topic lich will come before us in the next chapter. We have, how- 6r, yet to say a few words about a clatia of tenants who passed under our notice when we were traoscribiug Bracton's account of the ancient demesne. Marked oflf from the 'privileged vil- leinage ' of the sokeman stands the tenure of certain adventitii, who, though they perform services similar to those of the soke- Dien, do not belong to that privileged race. They are regarded as ' outsiders ' who have recently come to the manor, who have taken tenements under agreements (conventioues), who must perform agricultural services and who are protected by law; but their title to protection ia given them not by the custom of the mauor, but by the terms uf the agreement ; we have called them'conventioners'.' Bracton's own opinion seems to be that their rights are not 'real' rights; on the contrary, they are personal, contractual rights, to be enforced not by possessory or proprietary actions but by an action on the covenant. How- ever, he admits that others thought differently, would have aUowed these men the possessory luisizes and therefore, for tilts would follow, wuuld have treated them as freeholdera. Bracton's doctrine about this matter represents, so we may guess, rather a passing inclination than a settled practice. Two great causes made agaiiist its perdurauoe. In the Arat place, the theory that the sokomcu were a privileged race, that the privilege ran, if we may so speak, rather in their blo<xl than in their tenure, though we may fiud many traces of it, could not be permanently maintained. The day for racial laws was past, and as a matter of practice no barrier could be kept up between the natural progeny of the sokcmcn and these 'adventitious' conveuliouers. In the second place, the whole tendency of English land law was setting strongly in favour uf the principle that any one who has a right to be in the
1 BrMtOD, r. 7, Mys of tbem ■ tancnt de doraiaico.' This phntM ban tnd in Mima other pUee* t««m» to mean Uifti tbcj hol<] Isnd which antU ktel? was tn Ihi lord'* htnd, u>d htd oooe hteia pftrt of bis demwiia in the narrowwl ■■BM af thmt term.
406
Tenurt.
[bk. n.
oocapatioD of land hu a right in the luid. and whibt m
has
of the land. Thia
t«oanl
oocupatii
clearly in the treatment i«hort while an attempt had been made to treat tbaoi as hating righbi, hut merely personal, oootractoal righU; bul, belcm BractOD wrote, the attempt had broken down, and th« t«n»or was oonaiderad as posening the Uuid and aa having r^gfala in iu And eo with thew oonventioneni:— Bractoo's ■oggnrioa b Tery intereating. «ipeciaUy becanw be thinks that nveo an unfrce man may have a rcnicMJy upon a oovaoaiit agaiait the OOTMuntor ; but we cannot find tliHl it ibntk da«p looi'. On the whole, outatdo the ancivnt d(!meuie, the law mtinlaim the dilasuua. * Froebold, or unproU<ctA.<d by law ;* whila erao on 1^ aoeient demeane, * Freehold. Abeoluu* Villeioagei, NvSafad Villoinage (Sokemaniy)' cihaust nil the pocwibla cbmb,
Thus at the end of this prolonged account of the law of tenure we are brought back to a remark with which w« started. Evcrywhera we aee at first aight a simplicity that at trtUy marvellous. All the variegated heU of landhoMenhip ban baan brought under the tnray of a single formola, ' tha fcrnofa of dependent teuurB,' and the only modes of leoon which ibe law disiinguiahes are very few. If the reader does not thiak that our law )■ aimpic, hi- ahoald look abroad or ha abrnkl look at the ftcts which our law haa eDdcavosrad to mMlar. Haa endeavoured to master, we say, lor it has not aouoaaded at wsfy point in its grand undertaking. It haa dealt mdely with the &cts, it has neglected many a distinetinn of great eoeial and coonomic importance, it baa driven ita trenchant through the middle of natural elaaea and athwart of customary morality; hot it haa been hold and therefbcw aimpla
' OoonuMa'i B^ort ol JSom *. irmttoa (IMttl 0nm m la of Ufft pliMM of ' ooaf«atioo«« * oa mnam of Urn OmUi Brvl •ppmt thty tmm to U beldbif maim tamr^tttmm, tfaU !■ to a^y ■hott %mtm at fmn. iTisHee 4ms atrt m^ mhaOm Ika MMSto immBim hold far Mm* al 7«i«. A imm kr jmn !■ «sy itmtaUt, sad la Pimoa's ^ ihs will ol mvmtmt WasAior
«
CHAPTER 11.
THE SORTS AND CONDITIONS OF MEN.
«)] Of the divers sorts and conditions of men our law of the i^w of thirteenth century has much to say ; there are many classes of conditioo. persons which must be regarded as legally constituted classes. Among laymen the time has indeed already come when men of one sort, free and lawful men {liberi et legales homines) can be treated as men of the common, the ordinary, we may perhaps say the normal sort, while men of all other sorts enjoy privileges or are subject to disabilities which can be called exceptional. The lay Englishman, free but not noble, who is of full age and who has forfeited none of his rights by crime or sin, is the law's typical man, typical person. But besides such nion there are within the secular order noble men and unfree men ; then there are monks and nuns who are dead to the wt»rld ; then there is the clergy constituting a separate ' estate'; there are Jews and there are aliens ; there are excommunicates, outlaws and convicted felons who have lost some or all of their civil rights; also we may here make mention of infants and of women, both married and unmarried, even though their con- dition be better discussed in connexion with family law, and a word should perhaps be said of lunatics, idiots and lepers. Lastly, there are 'juristic persons ' to be considered, for the law is beginning to know the corporation.
But if for a while we fix our attention on the lay order, it may seem to us that, when compared with the contemporary law of France or at any rate of Germany, our law of staim is poor ; in other words, it has little to say about estates or ranks of men. Men are either free men or serfs ; there is not much more to be said. When compared with tenure, status is un- important.
408 The S(yrU and Condition of Men, [i
fiiiituaui Tbii mach we mi|:[ht tcftrn from tho hUtiirj of ft
ttmn. Oar nKxlcni KngU«h wnt4*ni on juriKpnidoood ■!•«<»- stnnlly pnl to flhiftii fur a word which Hh»ll tnuuUt4> tbr* L»i altttMS tad frequ4:utly hAv« to loave it unCmwlMad; woald mike ua think of rif^ta in knd, and eorndtHom d banl work to do in our law of pmpcrt)' and of obligotiaoa, Hm &te in England uf thr word ttahu or ttiaU a wrf ettriooB. Bnctoa could fttil) sharply oppose it to rif^ts in land. A fcvonrite maxim of bi« is that a man'* freo or villein tenure of a tenement ^aen not nffucl his firee or villein estate'. Bat raiy soon aft«r bis dtmth wv hear of a man having a ataiiu in Km simple or a Hatttt for life, and though such a phnae as *i1m three ostatoH uf the realm ' maj endare, and nar cburnh maf bid OB piBjr ' for all esbUea of roon,' still the Bngltsh law^ wh«n be bean of wtofM will think ftivt of ri|;hts in hod. wbik the English Is^tnan will, like enongh. think of land itaetf. of 6elda and bonsea This meana that oar land law baa baai vastly more Important than our law of ranks. And so it ia at an early time ; we read ninch more in the Uw*booka iif tsDants by knight'fl aerriee, aerjeanty. burgage, sooags, than of knlgbta. scijfanlB, buiyeawoa and aokpmeu ; nay, evoa tlis great disliae- tion bclweoa bond and free ia apt to appear ia pnMtios ratfaar as a diatinotion botwc«n tenores thaa as a pemnns,
I
§ 1. TIte EarU ami Baron*,
Our law hardly knowa anything of a noble or of dssa ; all fr«« men are in the main equal belbn tbe law. For a moment this nay seem strange. A oonqpewd eeontvy is hardly the pUes in which wo idmald look far aa aqoak^, which, having rogazd to other Unda. w« muit call eieepttaaaL Yot in truth it is the resalt of the Cockquaai, tbongb
* BfMlao win nniHilnBiny — OwwotJ rttfMto of a pmaa't riehU, •tan with tpml»i rdmtmt to bia haa.aa«lk«(t4tth)hi
Wahaapd: Im hi ntihllj ■■!■ Ilii nrl -^mi Miaiiriu ytT*m* wUwmjt tliaa* an Ik* two paal lam, la Ha* »| Im mmm to «« lh» vscd matm la IM
Inmfcrt MfaP^liakrt'; tal On aak *■« lte« W
CH. n. § 1.] The Earls and Barons.
409
that was slowly evolved. The compiler of the Leges Henrid would willingly have given us a full law of rauks or eatatea of men; but the materials at his command were too hetero- geneous : counts, baroDs, earls, thegns. Norman militea, English ludknights, vidames, vavasHors, sokemeu, villeins, ceorls, 8«^rfa, two-hundred men, six-hundred men — a text writer can do little with this disorderly mass. But a strong king can do with it what he pleases ; he can make his favour the measure of nobility ; they are noble whom he treats as sticli. And he not choose that there whall he much nobility. Gradually small noble class is formed, nn estate of temporal lords, of carls and barons. The principles which hold it together are far rather land tenure and the king's will than the transmission of noble blood. Its members have political privileges which are the counterpart of political duties ; the king consults them, ia in some sort bound to consult them, and they are bound to attend his summons and give him counsel. They have hardly any other privileges. During the baron's life his children liave no privileges ; on his death only the new baron becomes noble.
The privileges of the earl or the baron are. we say, ex- PriviiecM I tremely few. Doubtless from of old every free man was entitled htawt. ^Hto be judged by his peers': that is to say, he was entitled ^Vto insist that those whu were to sit as his judges should uot be ^V of a legal rank lower than his own. Under the dominance of the law of tenure this rule would take the form that a vassal is not to be judged by sub-vassals. So long as the king's court
I was a court of tenants in chief any man would have found there thu0e who were at least his equals, and even in a county court there would have been barons enough to judge any baron. As the administration of royal justice gradually became the func* tion of professional lawyers, the cry for a indicium parium was raised by the nobles, and in words this was conceded to them'. For ft long time, however, the concession had no very marked effect, because the court held coron* Rege, though for every-day purposes but a bench of professional justices, might at any moment assume a shape to which no baron could have taken exception ; even a parliament to which alt tho barons had been aiq tummoncd might still be regarded as this same court taking
■ Log. Hva. o. 81. 33. 38.
> Usffna Cftf lA (1316), a. 89. See above, p. 178.
410 The SoHs and OonditioM of Men. [bk. a
for tho Donoe » vpeeUIly aolenin farm. And the meuiiag of tb> rule wu not vntj pbin. Ou the oou hutil, wo h»mr Uw
Msertion that even in otril BoiU the mH or bftroo ihould bcv« the judf^«>rii iif his peen*. oo the other HaixI Pet«r de« RochM, the king's inintst«r, oui nj that the king's jaRlioes are tfaa peon of any man', aDd the vei7 title of tho ' barooa' oi tlw exchequer forbidn um to treat thui a« mora iuaolcoee. And au BnicioD girw bh no doctrine u to the priril^e of ibe baraaa, Ue doea reoogniae the diaCinction between lb* king'a oomt at justioea and the king's court of ' pecn.' but for the aake of a quit« other dtxrtrine. which l«il bat ft*w tranit in later law. WliuD there i» a charge of trcaaoD. the king hiiniielf ia t^ ■eeuaer, and life, limb and iuheriianoe ans at st&ke; tbcnAca it is ook Boemljr that Uie king, either so paraoa or bjr bia yaatietm, nhu icpmauut hia ponon, uliould ba judge ; ao Bnuloo tKrowi oat the suggestion that the cause aboold oome btfors Mn * peer)«*.' We have here no privilege of peerage, but a s|ii laal rulv for all caaoa of hig^ treeaon, baaed on the maxim thai oo one should be judge in bii own cause. Under tho Bdwards the pHvilt^ of peerage was gradually aaoertained, aa the eowt of law held coram IUff9, whfcJi by this time wm kaown ae tiM King's Bench, bocmmo morv nlUTly diKtinct fi iiiif llis ai wMjf iif tho banma. But in the cod tho baitm had gaioad very liulc If charged with treason or feluny. he was tried by hia pecce; if chargifd with a misdemoanonr {tnintffrmno), if aued ta • «i«il auit by high or low. if the king ehallenged hia Bhoieasl fraa- chisea. there was no Hpecial court for him ; be bad lo abide ihe judgment of the king's juaticea*. A oarlaio freeduM froM arrest ia dvU cavaee we may perhaps allow htm; boi in Braoton's age airest in ciril causes was aa yal oo event. That the tvoaot in chief oould not be
> Koto Book, pL ISM (aj>. ltSft-7) : lb* Bsri «f Ch Is ■ stwa «M
•lsia« tht jodfiBMl of U* pmn. bat abuiJoai tkfa lUaB la Mtbr U prt fcrvmrd uurthw, nanuij. Uwl Um pUa Mas * ' **ew*e H" ' ■'"*eM a«l km kt^ri MMB tUft. PlMh. khhnt. r- SOI (U>. llHI)t tU BmI <J Mm Hsl far kk tea^kH ta Qlsiiiiaisii. tmktm dM te ei^M «e jelpMel af Us pmn, asBdjr. iht loiA mshImm.
> u.Uai: MftL I*ar. W. Mi, «iT 1 vi. TB: KsSt BsA. r<. VT. ■ BnMlaa.r. US. * In Um fonrtwelh ssnlani It wm hM Iksft a fwr U a dffl sbM ^m
pnUOnl k> h*** M t«Ml worn kal«lil Ml lb* )wy. Bel Ikb asa ksw
fcvMl ah* tmJitimm ^mrimm. fur lh« kal«ht ia amitkm U* fm^ pee SBS Mk
inlfs. Bss T. a U-S Bd«. OI. l«a. Pik«). p. »l.
,^-^
CH.n.§2.] The Knights. 411
without the king's leave was a privilege of the king rather than of the baronage. One other privilege the baron had, but it was of questionable value. When he was adjudged to be in ^e king's mercy, the amount of the amercement was fixed, or 'affeered,' not l^ his merely 'free and lawful' neighbours bat 1^ his peers. For this pnrpose, however, his peers were found in the * barons' of the exchequer' and these experts in finance were not likely to spare him*. There are a few little rules of procedure which distinguish the noble from the non-noble. Thus we are told that a summons to court should allow an earl one month, a baron three weeks, a free man a fortnight*; and we may see some traces of a rule which exempts a baron from the necessity of swearing*. Evoi the members of the king's &mily are under the ordinary law, though in their 'perstmal' actions they have \h& same benefit of expeditious procedure that is enjoyed by merchants'. Very different is the case of the king, who in all litigation 'is prerogative.'
§ 2. The Knights,
Below the barons stand the knights ; the law honours them The by subjecting them to special burdens; but still knighthood can hardly be accounted a legal status. In the administration of royal justice there is a great deal of work that can be done only by knights, at all events if there are knights to be had. Four knights, twelve knights, are constantly required as repre- sentatives of the county court or as recognitors. For some purposes mere free and lawful men will serve, for others knights must be employed. On the whole we may say that knights are required for the more solemn, the more ancient, the more decisive processes. To swear to a question of possession, free and lawful men are good enough ; to give the final and con- ,395] elusive verdict about a matter of right, knights are needed. They are treated as an able, trustworthy class ; but we no longer
> BrutoQ, f. 116 b.
* Madox, Exoh. i. 530-9: the Abbot of CroyloDd and Thomu de Fumival protest that tbey are Dot barons in order to esoape from heavy ameroementa.
* This from the thirteenth century TersioD of Glanvill oontained in MS. Camb. Univ. Mm. i. 27, f. SO b.
« Bracton, f. 337 b-S36. ■ Braoton, f. 444.
412 Hie SorU and OmdUiaHS of Men, [bk. ii.
And any aucb rnlo m that the oath of one thegn it wiaifataal to the oo-th of lix oeorli. In administmtivo Uw thenfei* tiM knight va liable to norne npecial burdeiu; in no other does be differ from the mere free man. Eren miliuiy and scutoge have beoomo matten of tenure ratbor than iMlteii uf rank, and, though the king may Htrive to forae into koigbt- bood all men of a certain degree of wealth, we have do 10011 rale aa that none but a knight can bold a knight's fee. StiB lew have we any snch nile ai that none but a knigbk or mm but a baron can keep a eeignorial court.
§ 3. The Unfree,
Hm In the main, then, all IVee men are equal belbre the law.
Just becauae this ia eo the line betweon the free and t^ waSnm aeems very sharp. And the line between freedom and an6wa- dom in the line between freedom and senritode'. Braoloo aee^ta to the full the Human dilemma: Owmtm kcmirnm oitf li^6eri 9unt a^ stnn\ Ho will have no mere onfreedom, oa Mnit*«ervile elaas, no merely pnedial aerfegv, noUting eqaiT»- leol to the Soman cUonatut*. All roan are aither free men or aeift. and eveiy serf ia a» much a serf a« any other sorT. Wm Dae the word mi/, not the word aloM; but it is to be rt- meinborod that Bnicton had not got the word shm. He oaail the wonit word that he had got, the word wbi^, >a ba wall knew, had deaoribed the Roman slave whom his riwnar a^lii kill And the serf has a dominiu ; we may prefer lo nm4m this by lord and not by nuuter or ownsr, and it is worlhj of obaervaticm that medieval Latin can not vzpraa this dis- tinction ; if the Korf has a dtfrninua, the palatine earl. nay. tht< king of England, so long as be is daka of Aqoilaiaa. has a dominuM «Uo, and this is somewhat in the srrTs feronr ; bat still Braoton nacs tbe only words by wfaieb be oooM ban deeeribed a iUto and a slavwHivnar. Troe thai
I Bm9 Sffya «• oiBtt rdm *m TliMgn4oC« wurli far IW tosib. Bm mlae Uadwa. la rtinsrilspi rf Boy>l Wm. I L. Q. k. Is. tia.
• BrMlsa,t4h.
«Bisilea,l ih; BnMos m4 Asob ^ «.
I
CH. n. § 3.]
T}i€ Unfree.
neither the commonest nor yet the most technical oaoac for the unfree man; more commonly ho Is called vUlamis or nativus, and these are the words uaed in legal pleadings ; but for BracUiu these three terms are interchangoabie, and though efforts, not Tery consistent or succowfnl efforts, might be made to dis- tinguish between them', and some thought it wrong to call the villeins borfs*, still it is certain that nativus ahvays implied personal tinfreedom, that villanus did the same when employed by lawyers, and that Bracton was right in saying that the law of hia Lime knew no degrees of penwnnl unfrctidom. Even in common practice and by men who were not jurists the word servua was sometimes used as an equivalent for mUivttJi or viliantts. The jurora of one hundred will call all the unfree people «em, while in the next hundred they will be viiiani*. In French villein is the common word; but the feminine of villein is nieve (naiivay.
There arc no degrees of personal unirecdom ; there is no o«tiand such thing as merely pnedial serfage. A ft%e man may hold a«rfAjtr. in villeinage; but that is an utterly diBcrent thing; he is in no sort a serf; so far from being bound to the soil he can fling up his tenement and go whithersoever he pleases*. In later centuries certain niceties of pleading gave rise to the terms 'villein in gross' and 'villein regardant,' and in yet later times, when villeinage of any kind vnis obtwlcscent, these were supposed to point to two different classes of men, the villein regardant being inseverable from a particular manor, while the viJJein in gross might be detached from the soil and sold 2p.997] as a chattel. The law of ftracton's time recognizes no such distinction*. As a matter of tact and a matter of custom.
> Bet the kltempU of John of LoDKiifvillo, Nicliols's BrittoD, i. 105 note : Yfaioftriclofl, pu 45 note.
3 Mirror, (Stlden Soc.), pp. 79, IflS.
■ For example, in the Uandred HoUt for Oxfordshirs (B. H. U. 668 11.)
* Tba Eogliab litindman may have beea oohudod, for to often read of hondi or benJ*4i but thi« wonl corera to ionrootrvc ambiguity ; a SoAiuliiiarian word, BwacinB man and hence peaaant, hai tHwa mifundentood to imply bondnfta, i.e. Hnrility. Bee VinogtadoIT, p. 145. Britton ic-ritiOK in Frvoch froqiUDtly oted lb« wonl ler/, ood thsr* ia do sufficient reason for denying that thu word waa aasd alao in En^Uah spMofa. We ahall oac il aa a ttmii>]atiou of Braolon'a Mm*.
* Sat aboT* p. 390 is to Braolon's odd om of the term tueriptitiut. • We bold Ibis to bav« been faUy proved by Ualiajn, Uiddle Agee. ed. 1837.
, iii p. 356, and by Tinogrwloff, pp. 4d-A6. Bnt they are perhaps inclioed
AU The Sorts and OondiHons of Men, [bk. tV
Engluih (ierfag« nwy well be colled pnedwl. In tht fimt pfawt, it rmrely if ever happens th&t the aerfr are «mploj«d in oilwr work than ugriculturv and iu ait«todapt proofea ; ti)«irftui»> tion is to caltiTat« their lord'* demawft In the •eeood piiw^ ihm Berf unully holda mem or leas land, at last a ooMi^*. or elw IB the mainber of » houaehold wHom head bobk Uod, and the Mrricea that he does to his lord are eonBtantly regmrded in pneticM as the ratnni which u dne from faim in respect of ihii tmeawat or even as the return due from the toneaont itaetf. 00^ ierriooe, aa we hare already seen, are olten minotalj deSned by citotom. In the third place, his lord does nol Ised or cloth? him ; ho makei his own living by cnltirmtii^ hii villein tenciuent. or, in case he is bat a cottager, by aarnlpg wages at the hand of his wealthier ncighboatiL In the knxlh place, he is •eldom toTcred from his tODtOMnt; b« is stid— sold sa a chattel, thoagfa this bappsu now and agMn/: hi puses from boAor to feoffee, from anoeslot to heir as anantd to the soil. For all this, the law aa administend bj tbs king's court pormita his lonl to remove him frocn Ibe lenanisac. It ooald hardly have done otherwut«, lor he held ib villeinagn, aad even a free man boldii^ in villcinag* ooold be ^feoled fross kis tenement whenever the lord plessed witlumi findiqg n winsrfy bolbrD th« king's joatioesL Bot as to the Mtf, not only mokl he be mnoVH] from one tenement, he could be placed in aautber . his lord might set him to woric of any kind ; the king's eanrt would not interfere ; for he was a ssnws and hia penoo beioogvd 1M to his lord ; ' ha was merely the chattel of his Ion) to give and ' sell at his pleasure*.*
to (Hv loo Uta K dat* to lb* ■pytantM* of tha i^ ihsft Unh ▼aWas. llmilBT. &lBm.IT.t lOCklLrLIDBaitf* fur Ihs dMlh of hn baiteoa scalart k« tofd : U li eoBTirtcd. ihB ippfllurt will IneooM ftw: la lids ll b >«fUa< itgtnUnt to a mMMr, tot in UmI om* «b« will hm fatMuU tmt niev* : boi oiktrviw «o«ld It bs If ibt vara a «flMa la
* Bm r«. Cart. OlMw. U. 4i Ifa* Bfabop W BmlM AUty of OloMMtOT. Out. bMioa. 9- TA, pMl of • imHi ■ BovloB to Uh Abb^ of PolMMvtb. Koto BmA. fl- ItSSi M abimMo; tUfl iiriM «iU hsHlf mm a iw at. (8■rt•«8o«.^^SStl Iba Anbblihep ar Toib baya iw gaUy OosAar Baab. L «Wi a iiiitai to tsMfar fcsr MBlbBfp.Bkfe.mS.A^l.p. M: BaMBsaiUaM or B« Paahi far W dkiltlivi, B BBia, a BUl Md •>
■ iMMoa, i. 19T.
CH. II. §3] The Unfree. 415
But, whatever terms the lawyers may use, their own first Beiativity principles will forbid us to speak of the English *8erf' as a slave : their own first principles, we say, for what we find is not a general law of slaveiy humanely mitigated in some details, but a conception of serfdom which at many points comes into conflict with our notion of slavery. In his treatment of the subject BrEicton frequently insists on the relativity of serfdom. Serfdom with him is hardly a status ; it is but a relation between two persons, serf and lord. As regards his lord the serf has, at least as a rule, no rights ; but as regards other persons he has all or nearly all the rights of a free man ; it is nothing to them that he is a serf. Now this relative serfdom we can- not call slavery. As regards mankind at large the serf so far &om being a mere thing is a free man. This seems to be the main principle of the law of Bracton's day. We must now ex- amine each of its two sides : the serfs rightlessness as regards his lord, his freedom or ' quasi-freedom ' as regards men in general It will then remain to speak of his relation to the state.
In relation to his lord the general rule makes him rightless. (i) The Criminal law indeed protects him in life and limb. Such relation to protection however need not be regarded as an exception to the rule. Bracton can here fall back upon the Institutes: — the state is concerned to see th.at no one shall make an ill use of his property". Our modorn statutes which prohibit cruelty to animals do not give rights to dogs and horses, and, though it is certain that the lord could be punished for killing or maiming his villein, it is not certain that the villein or his heir could set the law in motion by means of an 'appeal'.' The
' Bracton, f, 197 b, line 3, appeals to common opinion; 'dicitar enim vulgariter quod quis potest ease servus uniua et liber homo alteriuH.' He uses the same phraHe. f. 2-'j, line 13, f. 19ti b, line 36. On f. 198 b, he Rays, 'Cum quia Fi-nua hit, non erit servus cuilibct de populo,' Britton, i, 199; Fleta, p. Ill
(g l-">)-
* Bracton, f. li, § 3 ; f. 15.5 b, § 3. Britton, i. 195 and the Longueville note, ^ Bracton, f. 141 : the serf only has ftn 'appeal' in case of high treason. For later law ng to appt^als by vilk'inH sec Y. B. 18 Edw. III. f, 32, Mich. pi. 4 (which ajipL-ara also an 11 Hen. IV. f. 93, Trin. pi. 52); 1 Hen. IV. f. 5, Mich, pl. 11; Fitz. Abr. Ciinme, pi. 17; Lit. ftec. IH'.I, 190, 19-1, and Coke's comment. Lillleton's doctrine iw tliat a villi'iirn heir has nii appeal for the death of his auCi-htor, that a nieve liaH an a|>pcal for rape, but that a villein has no apgteal for mayhem. thuuKh for this crime the lord may bo indicted. When a civil action was bronj^ht for boating, wouudinK, imprisonment, etc. there seems to
416 The Sorts and Cotuiiiions t^ Men. [bk. O.^
protection ftflbrded bj criminal Iaw seonu to go t» farther tliao ]§.. tho proMrraiioo of lifu and limb. Tbe lord may bieftt or in- priaon his wrC though of such doings wo do not b«iir tvrf much*.
As against his lord tho serf can have no proprioiary If he holds in Tilleinage of his lord, of oonmo b« is not in his holding hy tttfi king's courts; but then ibis waol of protootioo we need not n^ard as % ooDsaqoeoae of his swi Hum, for, were he a five man, 1m itil] would be gnpreUctod ; and tta^ jiiHl AM iho free man holding in villpinage is proCeeted custom and manorial courts^ so the serf is similarlj ptotootsd Uifl nghtlcasoeat apptMn more oloarl; as regards his cfc»U«ls and any land that be may havo acquired from ooe who ii not his ma9t«r. As roganb any movable goods thnt ho baa the lord may take these to himself. We hear iwioed hinu that his 'wainage,' his instrument! of busfaaiidry. an pi*- tectod even agaiust his lord', and that his lord cmn be guil •gainst him of the crime of nibbvry*; but tbuio hints eiUier belated or promotore ; the loir] has a right to soiai chattels. But it is a right to seiae thom and so booonw osrwr of them : until seiture, the aorf is their ownar and oikas am deal with him as such*. As a mattor of Ibet v« bear littls of arbitraiy seizures, much of seisureo which are not arbitmiy but are the euforoement of manorijLl customs. The nlbaas are oonstanily amerced and diBlroinod; the lord in hb oeofl habitually treats them as ownon of rhattola, bo ereo pennils lr them to make wills, and whun they di* ha oontonts him— If wiA
■^^
S toH
bsM bam MS* 4oohl m to b«w mseb of tba tkai«i tU
IntDsllr Aaaj Morv plwdlns thsi Um |ibit>uff «m Us ilMai «a» T- E. :
Mw. L p. too.
1 Salwt Ilou or Um Ckon. p. ti a vOMa k>pi ts riMOas WoMM te ftsnas««jr. Fw Uw InfiiMBflBMt ol * hod; of tiMUMs iMsals la th> IS* «al«7 am Llt«ai Ctstaarti—w, voL U. p. %xmL
> A MB. of Bncloa is Um PbUUyps Utawy. Xa. Mia. hs« • ■iIMm ari; Ui Um toiiiiiilli Matny vtatah bMn tks IwvdUwj vIIWm 1b kmMB law. *IImi «■!«• U tvttSM psiwiHU M Miniilsi yflkasM. df —ws tmA Iwradiune in l«ns «l iHMHMala vflluannk Kl ■« pw mm b*mT«Hi tlniimnr. lahsittar ite la bM, ^ala h«
> BVMiaa, t 0.1*1 BrMSeo isl Aao. f|L IT, Tl; • bneloB. MU b. I a. ■ gwM|irtinrBrartta.tl«ib.Uatft.
CH. II. §3.J The Unfree. 417
a heriot'. So here again, when we look at the facts, the serf's condition seems better described as unprotectedness than as rightlessness, though doubtless a lord may from time to time seize goods without being able to justify the seizure by reference to custom. Then, if the serf acquires land from some third person to hold by free tenure, he whose serf, he is may seize it and hold it; but until such seizure the serf is tenant and others may and must treat him as such.
And then we find that all this ritrhtlessness or unprotected- Serfdom
Be iure ft""
ness exists only where serfdom exists de facto. The learning oi dt facto. seisin or possession and the rigid prohibition of self-help have come to the aid of the serfs. Serfdom and liberty are treated as things of which there may be possession, legally protected possession'. A fugitive serf may somewhat easily acquire a 'seisin' of liberty. When he is seised of liberty the lord's power of self-help is gone ; he can no longer capture the fugitive without a writ ; he can no longer take any lands or chattels that the fugitive may have acquired since his flight". He must have recourse to a writ, and the fugitive will have an opportunity of asserting that by rights he is a free man, and of asserting this in the king's court before justices who openly profess a leaning in favour of liberty*. We need not suppose that this curious extension of the idea of possession is due to this leaning; it is part and parcel of one of the great constructive exploits of medieval law ; — relationships which exist de facto are to be protected until it be proved that they do not exist de iure. Still the doctrine, though it had a double
' But customn vary very much in this respect. The Abbey of Bee claims the cbattelg of all villeins who die intestate; K. H. ii. 758 and an unprinted custumal belonging to King's Coll. Camb. The Abbot of Bamsey makes a similar claim at St Iven; Cart. Ramn. i. 290. At Warboys and Caldioote if the villein has no heir of his body the abbot takes a third of the goods. At Hcmin^^ford the villein can make a will 'even in the absence of the reeve or Serjeant.' Often the best of the villein's chattels were regarded as annexed to the tenement and could not be bequeathed ; see Literae Cantuarienses, ii. 411-2.
^ See in particular Bracton, f. 100 b, line 8: '...in poBsessione 8ervituti3...in posstssione libertatiH.' Bracton quaintly misappropriatee the term ttatu liber for the serf who is de facto free, while the free man who is de facto a serf is ttatu fervu». Bracton and Azo, 78.
^ Bracton, f. 101.
* Bracton, f. 191 b, last lines: 'in statu dubio semper erit pro libertate iudicandum' ; f. 193, ' in hoc dubio erit pro libertate iudicandum ita quod in facnigniorem partem cadat interpretatio,'
p. M. I. 27
418 'the Sorts nnd Conditions of Jfm. [bk.
Bncton's dky
CtmoBBt
lard Hid Ml
edge, told agaiiMt the lords. Apparently ■Off who fled had to bo c^)Cured witbia Tour dftya; oUMrvm he coald not be captured, onleH wiihui year and dajr he returned to ' bin villein nest'*: a parallel mle gave the ejcotad laodbolder but four days for aelf-hdp '. Of cuune, buwvnr, every abecDce from the lord's land woa not a flight ; the eerf might be living elaewhere aud making aome periudic payneaft» chwa^um, hcad>money, in recoguitiuo of bt« lord's rights : if i he was not in seisin of bi« liberty. What the luatitutee m| about domesticated animals can be regarded as to the poinK '.
Yet another qualificatioo uf rightlesmeM is snggeslevLl Itore than once Brartou comes to ibe qnealioB whether lbs lord may not be bound by an agreetneolk or oorenaet, mads with his eert He is incUned to say Yea, Hi« reamuBg is Ihta: — the lord can manumit his seri^ make him free IbraB purposes; but the greater inclodes the less ; khcreibre the ami may be made a free man for a single purpose, Daaeljr that «t exacting some coveuanled benefit, and yet for the real nqr i remain a lerf '. Such rrasrming is natural if onee we rafud aerfdoio as a nan relatieoship between two peyaon^ It doss | nut, however, seem to have prevailed for any long lime, fcr nor law came to a prindple which was both more eaail/ daftrtMsbls and more hostile to serfdom, namely that if the kicd nakea a covenant with hiti serf, this impliv« a nionanuHiea ; be booomis free because his lord has treated him w frve*. Bmolaas | doctrine very possibly had facta behiul it and was an aasftf specalation. (or we do find lords making formal agiMMals with their ftcrfn': but it ran oountfr Ut a main carrvot <lf{^^ £ugltBh laud law. The agreements that Bracton had in vii«
^ Bnelo^ e. « k,7| BaUsa ud Asa, ^^i T •>-« U«. L |k SM.
■ B»B«loo. f. let. TImm Mfflel paiMin*7 nl« Om mA ot ihm mutarj. Tmt wmI 4s; tahM Dm pIsM af *• Im» 4By»i L 19V. Wl.
' Bf»cloa. 1. S tt •arimSUXmHatmwtnmwm liiisiiMiiii.' Ct L SOI I T. & tt4 Ed«. L p. U^
•Ilmiaa.C.Mk,«OSb| Vlaofi^dL pfk 70-i.
* lilllawi, Mt. m-7.
• wm TisiniBSfg. p. Ts. aii M Uf rihiasem. Osrt.
fnat oTlBDi IB O. •« • salhs ' fcr Ml sad to Ms Willi
a nal sad la soasliHatfBD of apoMMoi: Iw Is sat lo ■■wy itiaha^mrlmm. IMB«nMteMaao*UCs«t*.t irt: WtvwaiW sltet «r Bsttls sa4 kM vilWM. »otoBsak.|a.
CH. n. 1 3.]
The Unfree.
were in tKe main agreements relating to the teuure of land, and aa we have already seen', our law was strongly diflinclined to recogniee any contract conceminjr the occupation of lajid which was merely a contract and not a bestuwaj of * real ' rights: it ui^ed the dilemma — no right tt> occupy Land or some one of the known forms of legal tenure.
The serf's position in relation to all men other than hia lord (a) The ia simple : — he ia to be treated as a free man *. When the lord relation [■» is not concerned^ criminal law makes no difTerence between persona, bond and free, and apparently the frea maD may have to do battle with the bond. A blow given to a serf is a wrong to the serf. It may also give hia Lord a cause of action against the striker; but here also the law makes no difference between bond and free. If my aerf is assaulted so that I lose his services or so that I suffer contumelyt I have an action for damages; but it would be no otherwise had the aa^ulted person been my free servant'. So also in defining the master'3 liability for wrongful acts done by his dependants, the same principles as regards authorization and ratification seem to be applied whether the dependants be free servants or serfa*. It is rather for the acta of members, free or bond, of hia hou^- hold (nia/iupasfua, it^aiin/pasi) that a man can be held liable than for the acts of his serfs \
Then in relation to men in general, the serf may have lands '^l?!'^* and goods, property and possession, and all appropriate reme- dies. Of course if he is ejected from a villein tenement, he has no action ; the action belongs to the lord of whom he holds the tenement, who may or may not be his personal lord ; were he a free man holding in villeinage he would be no better off*. But the serf can own and possess chattels and hold a tenement against all but his lord. This general proposition may require some qualifications or explanations in particular instances. )3] We read in the Dialogue on the Exchequer that if the lord owes scutage to the crown his serf's chattels can be seized, but
^Ttfptxij.
) See above, pp. 405-6. ' Eengham Pura, o. 8.
s Bntcton. f. 155 § 2, 165 b § 3. « Bnoton, f. 204, S04 b.
* A man's Uabilit; for the doings of his mainpast will deeerre foUer dia- eturion io another oontext.
' In Bracton's day the man who pniehaBea and obtaioB poasasaion of ▼illeiD land from a villein is protected against the lord's self-help ; Note Book, pL1203.
27—2
420 The SorU and Cmditiont of Men. [bk. n.
ought not to be aeixcd uutil hu uwn chmitela havB IwM oxhaiutod'; wu read in Bractoo chut when * kmi m to W distnuncd his villein's chatt«U nhoultl be the very ftnt obfaol of Attack * ; but in these cans wa may lay that the icrl having DO proprietary righta against hix lunl. iik treated aa having nooa against thorn who by virtue of legal procees arc maUed to claim what tha lord hirascir could aeizv: — the general prineiple iit hardly impaired by such qaalificaliooa, and it i» a bmm* important principlu. MtHUra Still it iH mit a nutund pKncipIc. Thb* attempt to tnmt a
man now as a chattel and now as a free and lawfql peteon, or rather to treat him hh being htith at one ami the aanie noawM* must give rixo lu diflicull prubloms sneh as no law of tovt slavery can ever have to mc«t. Suppose for eiampte that a villein makes an agreement with odo wh«» ia not his lord; it seenu certain that the villein can enlbnse it ; but can the other contractor enforce it? To this question we have a de6Mt* answer from Britton*: — a c<intnhRt can nttt be enforced "i^iwf^ a villein ; if ho ia sued and pleads ' I was the villein of X when this agreement was made and all that 1 have bdoags la him,' then the plainiiflT, unleaa be will ctiotnulict this flm, muHt fail and his action will be dismuwied ; nor can he sue X. for (unlcstt ihtire is some agency in the caae) the lord is not bonnd by his AcrTs ooDtract. In Ut«r times this rule moil have been allc^red ; the ploa ' I am the villein of .¥ and boU this land of him in villeinage' was often urged in actieos for land, but we do not find the plea ' I am the villein of X ' aet up in purely ' personal ' actions, as assondly it vanld hsn been had it been a good plea*. Bnt^ even if wt adaut that a viUesn may be sued upon a oontmct, the mdiUr's tvmedty is prscarious, for the lord can aaiM all the lands and chitliili of his serf^ and an action ^atast his serf is just wh«t wiH >" arooso fats usuall)- dormant right Thus the law, in tvyii^ I* work oat its curious principle of ' rehitire iervimde.' is drivM
lo ^ ^n ft
■ Malf d* flmwsrto. n. e. 14.
> l^sHK. 1 tlT. Urn l«. W. m UnvOUs.
" Mikm, tt. IM, IM-ff.
« Bw Brafa. Abe. ViUnrntt, pL H: ta as mdm nl Ihs JihsiMli flurtii Ihrt hs «as IW vilWa W Jl m4 mtesl Btaks aotas Ifcal bs M m« -M itet W lliwsfisi ImUa 111* mm m nuriMWi MB Ods «h la
CH. II. § 3.]
The Unfree.
421
to treat the serf as a privileged pcraon, as one who can sue
but can not be sued upon a contract ; and. evon when it allows
that he can be sued, it can give the creditor but a poor chance
■of getting paid and will hardly pi-cvcnt collusion between
villeins and friendly lords. Again, we see the ecclesiastical
courts condemning the villein to jwiy money for hia sins, Comi-
BcalioD and the like, and then we see the villein getting into
■trouble with his lord for having thus tixpeudcd money which
"in some sort was his lords'. The law with its idea of relative
servitude seems to be fighting against the very nature of things
and the very nature of persons.
I Lastly, wc should uotic€ the serfs position in public law. (3) The It is highly probable that a serf could not sit as the judge 1100(0*! of a free man, though it may be much doubted whether this '^**'' rule was strictly observed in the manorial courts'. He could not sit as a judge in the communal courts, though he ofleu had to go to them in the humbler capacity of a ' presenter.' So too he could not be a juror in civil causes ; this he probably
•regarded as a blessed exemption from a duty which fell heavily on free men. But in criminal matters and in fiscal matters he had to make presentments. At least in the earlier part of the centurj', the verdict or testimony which sends free men to the gallows is commonly that of twelve free men H enduraed by that of the representatives of four townships, aud ^such representatives were very often, perhaps normally, bom villeins Such representatives served on coroners' inquests, aud
§the king took their testimony when he wished to know the extent of his royal rights'. In the 'halinioots' or manorial courts the serfe are busy as presenters, jurorH, affcerers of amercements, if not hs judges ; they fill the manorial offices ; the reeve of the townahip is commonly a serf. What is more, AS] the state in its exactions pays little heed to the line between free and bond ; it expects all men, not merely all free men, to have arms'; so soon as it begins to levy taxes on movables, the
■ 1 8«l(«l PIcM iu Manoriftl Coiirti), i. 97, 9^ * On ft xaj ewl; roll of a Norfolk manor, for a light of whtdt w« haTg to thank Dr Jtmopp, a viUetn u ainaroed for barinft Muoinsd a tnt man. 'et iMlalor per eoriani qood qod potwt asaooiare Ubwani bomfawm.*
" Tbn iba HuDdn-d Rolla Bocm to be fooodad oa tba praHatawots mado oa wnU by rcpremitativei of lownshiiM, «bo would often be an(r«e. aa by fraa and lawful jurors of the buDdreds; see tb« rolls for Guex. K. H, i. 196 fT.
* Tb« origiiial Autxe of Anna (1181) contetnplatce only Oat annintc of tree
422 The SojU and Conditions </ Men. [bk. u.
Bovi
unk.
■nft, if they have ch&ttela enough, muni pay for thetnV It u but a small set-off for all this otiemuH frettlum that a i«H eao Dot be produced as champioo or am oontpnrgiitor ; and erea ihu rale ia made to operate in favour uf liberty ; if a Und prfidnoefi a Horf na champion or compoigalor thia in an implied [oanuroiaiioD*. The serfii have to boar many of the bonkoi of liberty. The state has a direct claim upon their bodiae, their goodii, their time and their t««limoDy. and if for a mgwil tiM aeama to make their lot tha leae tolonible, it prsveala ear thinkiag of them aa domestic auimalr, the chatteU of their lonk
Hanoff aaeo what aerfilom rauana, we oiay aak how men beeome aarfr. The aiMWer ia that almoat always the aerf ia a bora eorf ; wUinu and nUamu were eommooly need ae inters changeable terms*. But aa to the oooree by whieh ittthwi is transmitted from parent to child we 6nd man doabta than «e might have oipected. If both pamits are eerC^ of eoome lbs child 1*4 a serf; but if one parent is free aikd tha other a seK then Hifficukir* »ecm to arise, ^e writer of the ttfm Htnrid holda that the child follows the fathi^r; but he quotes the prorerb, * VituluH matris cat cuiusmnque taorua aUoserit.* and seems to admit that in practice the child ii treated as a serf if either of the parents is anfree*. QUuiTill is elear that the ekild of nn unfree woman ia a serf and seeou to think that the dkSd of on unfree man is no better off*. Thn» we shoaM get the rule, which had been appravad hy the church, namely, thai, whcAever free and aerrile blood are mixed, the wrvile pravaik* Bracton, however, has a more elaborate acheoe A faasUid (»'
auai bat the writ at tSAt n^aum tlial IIh vObarf. If lUb a>m^ It u pUin ^Uo Umi ^irmig la IttS wil^mt *■ •fpmn (ran tha «rlt or that j«ar for Ifa* tatheHmm •( a dooBsmU to fliabte. SaL Chortora.
> Kv«D tba ordinanM far Am Sdaaia titba dn«* oa Uo* ti«»— ■abM. Till iniailli iif Itll mil III fiiiw iitliiif. ii ihiiimHj forllMh of ISn and tfat lUvtielk at 1M7.
• Bnatea. f. IW. kM Udm.
• Tbw finMoo. i. IVT. wj» Itei ibi ' wthm' «1» to a aettvv oat Inl bjr hb o«a eaaliMioo U wmtm fwufwtr «JM * ftUna.
• Lm. B««r. c 77. • OkaviU, lik. t. «.«,
• Hm e. It. C St. 4». «. TU» wm ahM«4 by •, S, X. 1. IS. •s|>r*Mwl In ih* 0«^ia faonffc * ii* Klad b^ Aw BMuu onauarftl. ■■• flwaUr, lartiaikiwa. L laa. la TnMm thaf ■uifoiai^pacUhbM'i Ttallii. HMiiia im iwM wMl, p. Itt.
tytirtft
CH. n. § 3.] 7%e Unfree. 42S
follows the mother ; the child of a bondwomap. if bom oat of wedlock, is a serf; if bom in wedlock and of a free &ther, then another distiactdcm must be taken ; if a free man takes a bond- woman to wife and they dwell in her villein tenement, then their ofispriag will be bom serfs, but if she follows him to 'a free couch ' then their children will be btnn free. So also when a bondman marries a free woman, ^e character of the tenement in which they dwell determines the character of their offspring', ^e influence thus ascnbed to the tenement is very corions ; it shows that to keep villein status and villein tenure i^fMut was in practice a difficult matter, even for a lawyer ever ready to insist that in theory they had nothing to do with each other. In later days the courts seem to have adopted the nmple rule that the condition of the father is the decisive fiwjt, and to have pressed this rule to the absurd, if humane, condusion that a bastard is always bom free since he has no fother*.
'Mixed marriages' indeed gave a great deal of teonble^^* tiiroug^out the middle ages by raising questi(nis as to the rights and remedies of the husband and wife'. Ultimately * the better opinion of our books * was that ate marriage of a femide serf with a free man, other than her lord, did not absolutely enfranchise her, but merely made her free during the marriage* In 1302, however, we find two justices de- nounciDg this doctrine as false, * and worse than false, for it is heresy;' apparently they think that such a marriage has all the effect of a manumission ; but their opinion did not go undis- puted'. Such a marriage would not at any rate drag down the free man into personal servitude, though according to Bracton the issue of it would be serfs if they were bom in the villein >7] tenement. In the converse case in which a bondman marries a free woman, he of course is not enfranchised, though Bracton's doctrine would make their children free if born in her free tenement. On the contrary, it might be thought that, at all
1 Bracton, f. 6, 194 b; Bracton and Azo, p. 58; Note Book, pi. 1041. 1889.
* See Vinogradoff, pp. 59-63, also the note on Leg. Hen. c. 77 in Thorpe's Aneieni Laws and InBtitutes. The freedom of the bastard appears at least as earl; as Y. B. 19 Edw. II. f. Gol-li. It appears also in Beanmanoir (o. 46, seo. 16) where it is the more curious becanse the general role is ' Servitude vient de par les mdres.'
' See the Abridgements, tit. ViUenage.
* Co. Lit. 133 a, 136 b, 137 b. » Y. B. 80-1 Edw. 1. 164-8. Comp. Brittoa, i. 199; T. B. 18 Edw. IL 604.
424 The Sorts and QmdilionM of Men, [bk. a
•tcdU if Ao went U> live along with her villein hasbaod in fait Tiltein tcDcment and to bear him viltoin children, ahe b«ntlf would be oocounUfl a villein. But thiit was not tbe role. Uuw far during the iiuuriagu she ooald make good any ngtiM against her hiiHband'it lord (and it will be remembervd thai aa af^nift all nthi,<ni her hu»bancl wiut a fn^e man) was very doubtful; )the could nut »ue without her huxband. and if b» joined in the action, the lord would Bay, ' You are my villeiik'.* But on bor buitband's death ahe would be free unee man, or rather her freedom would once more become apparvol aad <^ierativt>*.
Faint trnocv may l^e found of an opinion that birth in a ijhfa&' certain dtsLrici or a certain Leneineut will make the ehiU unfreei, or as the caAc may bo free, no matter the nonditina of it* parenta; but, except in the well-known |>rivilegf> of K*nliih ■oil, it seenu to have found uu legal unction*. Ir A person bom free imrely becomes a aerC When BmSan ■peaks of priaonera of war bcring held aa davea and of a flneed* man being reduced to idavery on account of his iaffiBtilaiie, this is but romaneaqac louuing*. We do not in this age bear of servitude aa a punishment, though the Wcbh maithanolaaai tbe right of selling cnminAki aa slave*', and King John can threaten all men with Hlavprj- if thry do not take arms to naitl 1>^ an ioTanon'. Nor do we any longer baat of frs« mai
I
* Bnwko, L Wt. 90«b; BriUoo, L Ml. BisciM'i mre opiMba tUir— Fn» wamaa with ttm MMBWt manim s boadvasi Ub tad Uinn from lin rrv* tcDaniriitt tlngr «■ m kin. (8m IMMhi'* V«I* pL twr : ii U sol Miktod in ih» BMK thai Un ihmhm «m Iks Hfato^ l«i.» Bet KffaxwaOij Bnalaa aimit* that thU b mm iW |iimHs| tftaitm^ al •■ vneli if ths lord Is la mUb o( iIm hiatauA. Otani ifas qooaduB njtoA ate bod s|ipn)^* Bat si uj nm daiac thm i osn havvDo wtioo sfsfiwt hv luHfesal^ loid a*« <■■• laalcallwdMeifeMV of bar poMWKtocL
■ BrmetoD. r. SM. 49B b. 4M> b; BrtlUn. t lse-»i KoM Ba«^ pA. 1t(, lua An to ilw iibo4» of IhM BobiMi, MS Vln^p^oll. pp, Cl-I.
■ AmIss ml Vamiu. No. Ml {SI Bn. UL). «.*: 'ta vOs^BAi^ MBI dno twda, mjUom, fcotaa da rsssmr M Ipedaai Niwit •! . . . «■■
lUi «Bi nfttl «iac hi lMd» 4* T% ttUd Mat. «hms vvm ni «■! aaH ■■!
la telo Pavwvl vOUDi ■onL'
« BrMloa, ti. Bat u u lbs b^tmUtnda ^ m« vW Im ^m^* ft» If hrighthiBd. or by srfi^ — Briuoo. L «W; ItMs, ^ IIL
■ P. 4; w. iis-i.
•Bsl.rM.LU. U Oht nabs diteall Umt n4 iMt Mn itell hs v<*
Ja;
n.
The Unfree.
425
'themaolvcs into slaver)'. But it is a principle of law that if a person has once confessed himself iha serf of another iu a court of record, he can never thereafter be heard to contradict this aaaertion, and so ' confession ' takes its place beside ' birth ' as ^aOne of the orifipns of servility. There are abundant cases iu our ^records which suggest that this talk about confession is not idle' ; a, defendant sometimes seeks to evade a plaintifTs de- mand by confessing that he is the villetn of a third person, and thus, even in the lat^'r middle ages, men may RometimeH have purchased peace and protection at the cost of liberty*.
Whether prolonged serfdom rfe facto will generate serfdom Sarfdom de iure was iu Edward I.'s day a moot point. Some justices bci^od. laid down as a maxim that no prescription con ever make servile, blood that once was free. Others flatly denied this rule, and apparently held that if from father to sun a succession of free men went on doing villein services, the time would come when an unfree child would be born to a free father. One opinion would have cuudcmned to servitude the fiO^^h generation in a series of persons performing base sei'vices, while a Scottish law-book mentions the fourth generation, and a common fonn OV] of pleading maile a lord assert that he had been seised of the ^raudfalher and grent-great-grandfather of the man whose liberty was in dispute. Opinion might fluctuate about this 'question, because procedural rules prevented it from being
Beems to haTe been oommon in Fnnoe ; benoe (lie wif in homo qtiatuor num- mcnan.
) Kote Book. pL 46«. S91, 1411, 1695. 1667. 1894: T. D. SO-l Edw. L
4&4; T. B. 88-8 Bdw. I. p. 4; Y. B. 1!> Edw. 11. f. KSl.
> But liow Bould « ileTeuduil g^ia ftnylliing hy wving aolnit; that b« was atmXly a villeia? In an actioo for land vwn it oot enoo^ to nj', ' I bold in 9, at I bold at will, and therefore I am not the right pamon to be aued ' ; vbila ia U not onlj in aotioHH for land that W6 find d«fttadatit« relvtBR on TiDalDaffa of any kind? The answer ti RiveD fav a oaae of 1303 ; T. B. 30 1 Edw. I. p. 41. If ths d«f#iidant merely pleads tenure in vttloioa^, Uu- platDtiff may oontimdiet him and ihc. Uiteliood of the plt-a diav he eatabliabed ; hot if h« idda that h« la a riUein, then th« plaititiR can make no reply aod fails in hU aait. Perhapa it wai oonaidand imprababl* that any one would ooodunn liinmelf and bit poRterity lo p«rpftaal Mrritudfl nnlasa he hod f[ood eaoM for w doiijg. At an)- rate therr waa no reply to thiv confesaion of villvin statas until In 1»R3 a Stalnt«, 37 Bdw. III. c. 17. pvnuitu-d the plaiiiUlT tu eontradtot it, In 16 Edw. IlL Fiu. Abr. Driff, 322, the absurdity of the rubs in ahown :— * It ii hard : for a man may oonfMa himaelf viltem to hia f^tlMr oi bis ooasln, and then nnt day gel a release from him.' * Yes, it la bard,' ii the reply, ' bat it h vm.'
426 The Sorts awl CondiiioM of Mtn. [bl fl
oAftD bivugitt 10 A deoiiioa The genenJ nile m to Un bj which &v« or semle sUtUH uiuld be ooneluivftly pravad that it mutit b« prov«>d jmr parwnt^t. If the bunteo of pntd by on the penon whote itatos ww in qaestioa, ho had to ])rodaoe free kinnnen ; if it lay on the woulil-bc liicd, be hod to prodnee kiiiMnen of the wonld-bo fne man who woaki caahm themiolveo eerfa. A mere verdict of the coaotry niglii •oMli the question provinonelly end. us we nwjr eey, lor pCMManj porpoaoft, hot oonld not octtlv it ooooltuively exeept ■• effiiHl one whu hwl roIiinUirily mibmiltod to ihtM lent. Th« buidm of the priMjf U thrown en ooe aide or on the oUmt hgr eeinik; the niAa who in in ftt/aeU eiyoyment of libtrty oowtinnee lo he free nntil hii servility i» proved : the man who b dihW the power of A lord must remain «o until he bee ebown hie right te liberty. On the whole the procetlural rules eeem bTixiimble Is freedom. In Braciun'* day a four days' flight' might tbrow lbs burden of proof upon the lord, and he would have to mfthe oal his title, not by the lefdiranny of fre^^ and Uwf^l oe^gbboan who would naturally infer serfdom tU tun from aecfilein it /ncto, but by the testimony of the fogitire't own kinafblk m In the fugitive's pedigree, nod they must oonfoss iImmmhIum ssifc before thsirteelunooy can be of any avail". On tbe otKar bead. if a man bos been doing villein aervieeek he may as a mstter ef fact easily fhll into serf^^, oales be is wilbag to ran frMS hearth and humu and risk all apoo a siiniaiflil fli^U and ■■ aotioo at law. If for genc»tion after geoeratkii Us sleek hss held a villein tenement and dooe viUetn Mrriesa be will bt reckoned a villein, that is. a serf; even his kinsfolk will mn data to swoar that be is froe. There is do Ibna of serriee es dixtinctirely servile that it must needs be asoibad Id status and not to \-illein tenors; even the ■erebet. wl lagaidcd as the bust loet, may sometimsa be paid
^ »m shofs. p. 41S.
■ Ob ib» hm or ii tth Isoks Bks sa initl fiiMJia. mh IS— I wlUHto aw* U >Wv<rw MtrtmtU. TW fa«4 vAl kk MS 'hU.* io «ii, J. B. V. ktoMM o( Um iihii ImiI Is wamk Ml tmAntiim <rf mH hM fa Dm UiW* ceart Wsivs ■ suiv MensIS li ID en IfnfiiBi A>snrae7UktiM^Ebllal»4s44t«Mb« mm imttj af kin to iha ^liiiilni Os*« Wislwrti^ Uris p »««• Book. pL 1D06. lOU. lUT. ISUi T. A. tia U«. L ^ AM; tsai Asass iklb ttortsM 80B.J pp. 4«. IM. LM.
GH. n. §3.] The Unfree. 427
imemenH and not ratione pertonae^; bat a jurolonged per- formance of villein services must put a fiunily's free status in jeopardy. That this is. not so as a matter of law seems ihe opinion of the highest authorities ; but the &ot that a contrary opinion was current both in England and in SooUand may weU make us think that in common life there had been a dose connexion between villein tenure and villein status*.
And now as to manumission : — A lord can easily enfranchise How his ser£ He can do so expressly by a charter of mannmisBion; he does so impliedly by a grant of land to be held freely by the HJ^ serf and his heirs, for a serf can have no heir but his lord' ; he does so impliedly by certain acts which toeat the serf as free, by ]»odnoing him in the king's court as his chaminon or his compurgator' ; it is becoming dangerous for a lord to make any written agreement with his serf*. There has been a difficulty as to a direct purchase of liberty. If the serf paid money to the lord for the grant of freedom, the lord might, it would seem, revoke the grant on the ground Uiat his serfs money was bis own money. This technical difficulty, for perhaps it was no more, was evaded by the intervention of a third person U] who made the purchase nominally with his own but really with the serfs money, and the serf having been sold and delivered
> See kbove, p. 878, and Britton, i. 196. Id Y. B. 8 Edw. III. f. 66 (Mich, pi. 31) it is naid that the biebop of Ely held land b7 the service of being tallaged along with the villeinB.
' The beet illostration of this point is a case of 20 Edw. I. reported in the notes to Bale's Fleaa of the Crown, ii. 298. Two jnstioeB of aseize laid down the mle ' quod nulla praeaoriptio temporie potest libenim aanguinem in servi- tutem reducere.' The case was then brought before the auditors of complaints, who declared that this maxim ' omnino faUam est.' The case wm then taken into the King's Bench, bat with what resnlt does not appear. Britton, i. 196, 206, denies that long performance of base serrices, e.g. payment of merohet, can make a free stock Dofree. So does Hengham in Y. B._88-5 Edw. I. p. 15 : ' praescriptio temporis non redigit Bangainem libenim in servitntem.' On the other band, a gloss in the Longueville MS. a t Cambridge, printed by Vinogradoft, p. 63, says that in the fifth generation villein services will make free blood servile. The Scottish Quoniam Attachiamenta, c. 89 (Acts of Parliament of Scotland, i. G55), makes the fourth generation servile. Then in Fitz. Abr. Villtnasjt, pi. 24, we have an extract from an unprinted Year Book of Edward III., which seemx to say that a stock may become servile by holding in villeinage from time immemorial.
■ Bracton, f. 24 b, 194 b. Britton, i. 11)8.
* Bracton, f. 194.
> See above, p. 418.
428 TAe S<^rU and Conditions of Metu [bk. 11.
ftwdunn.
(the ownership did not poae untiJ duUvory) ma fch«o Mi hm by hifl new owner*.
In BractuD'a day every art of coanamiauoa by tha Ind seenut to have oonferred full and perfect freedom ; tha freed man wut in all respects the equal of the &ee born. Thii eooM hardly have been otherwiae since, an we have aeen, aerldoan wm r(^(arded for the more part aa a mere relation betwe«n two penona. Glauvill seoma to have bchl a iliflt'n<ut opinioo. He speaks as though the liberation would luokc the serf fre* at r^ards hit former lord but leave him a Mrf as r*g«nU all other mi^*. The chief, if not the only, point that QlaBrill had before bis mind when be wrote this, seems to hmfn hem that the freed villein could not be produced as ohampioo or ■• compurgator. It is poaaible abo that ho had in view ada cnAronchisement whidi were merely private aod woold havi* denied that there were aolemncr methods by abaolute freedom could be ouoferred. In thn Ltym Htmrid the man who wishes to free his serf moat do so ia paUk; 'in a lAurch or a market or a connty eoart or B bsadnd court, openly and before witoewee'; Unoe aod awocd an bestowed im the new free* man and a crnvmoay ta i—nlid which fthown hiin that all wa)-* lie opun to hts feet*. Olaavfll may have required Homu sach public sot if paribet Ubefty w«s to be confinTed ; but Bracton. whn hAbitualty n^ganis aaiJf M « mete relationship, se«a oo difficulty; tbu loni hjr ililuijing the rdatioDsbip de^roys SMfdoia Here we seem to ms a modem notion of relative serUom growing at the expense af > «B older notion of true sUvery. To tura a ibi^g iMa *
I ores
1 01sa*Ul. V. &. ThU jmmm i* v«7 ^ A«sH, hu mmu la U Bfaetos, t IM b. W« bmj 4oaU wbtOm aiSBTOl mmwi %a *mj iksi m kai can gntoiloiulj UlMmto hi* Mtf. If bo«v««- h* ]Stmn»m htm la ««MkMllai of R ram of wtmmy tbm m diOcattj sM^ ; Ma k aiat ty Ik* ta^mrng^k^im 4 • third panoe vha |miAi— lh> ml DoalnsBy nth Ui •«>, ikamk w^ vttk Uw wf ■ noaiv. BmbIim «j« • aU^^ MmsUmIw «ri ■■■ s^ !■« pnirito 4Martta Mia.* Mil vflUM sn «sU la bay tftek' ««■ asi% t «« lkliBook.pl.ll.su. Th» booto <f iiMi^Mrii fmmkmm rf ik> ililiiii ^ MBtsry, t.$. Um LoflUU *ad Cupislil K89. s» QMrieHr tV& i^ I; Ite. L t7), liv* tonM ol aaeattlMlaa by way of «)• t HiMOloe flsn bi ■rtwaspniftsil lik^m by lw» Jm^ « by a M* VlMpadoC. p. M. who dMte wn«hal diflnnUy iaGUarOL
> UUnrtB, t. ».
' 1^. Um*. t. TN 1 1 : ••< lifaMM li visa ■!
\
CH.n.§3.] The Unfre^.
IB a feat that can not be performed without the aid of the Htate, but to make free as against yourself one who ia already free as against all but you, this you can easily do, for it is b&rdly a matter of public law^ J^
A serf will also become free (1) by dwelling for year and **^ day on the king's demesne or in a priviloged town — this is ecfnm- an assertion of a prerogative right which peoples the king's ^ '^ ^ - manors and boroughs'; (2) by being knighted — kaighihood confers but a provisional fireedom, for the knighted mvi cjjq be degraded when his servility is proved*; (:3) by eotering religion ' or receiving holy orders; it is unlawful to ordain a serf — this is forbidden by cuion as well as by temporal law*,^bufc, when once ordained, he is free, though his serfdom revives if he resumes a secular life'. The lord's right of action for the recovery of a serf was subject to a prescriptive term ; in 1236 the year 1210 was chosen as the limit, and thia limit was not altered until 1275*; we have already seen that hi? right of ' self-help the lord lost somewhat easdly, though leas easily aa time went on'.
Such briefly stated is the English law of villeinage or Baouiurr. ser&ge in the thirteenth centuiy. ItB central idea, that of the ' relativity of ser&ge, is strange. It looks artificial : that ia to say, it seems to betray the handiwork of lawyers who have forced ancient facts into a modem theory. Slavery is very intelligible ; so is slaver}' tempered by humane rules which will forbid an owner to maltreat his human chattel; so again is a prsedial ser&ge, and the ancient laws of our race compel us to U3] admit that there may be a half-free class, men who are neither
> Note Book, pi. 1749. Here again Viuogradofl, pp. 86-8, givM a somevbat dillerent explanation.
> GlanTill. v. 5; Braoton, f. 190 b; Fleta, 111, 285; Britton, i. 300, 209; Stabbs, Hoveden, vol. ii. (Introduction), p. xl.
» Bracton, f. 190 b, 198 b; Britton, i. 200, 208; Fleta, 111.
< See the whole of Dist. 54 and X. 1, 18. In 1270 Bobert de Montalt at' his mother's request enfranchised by charter his ' beloved and faithful olerk ' Soger de Malberthorpe, who perhaps was not in holy orders : Assize Boll, Linoohi, No. 494. m. 43 d.
* Bracton, f. 6,190b; Britton, i. 200, 208; Fleta, 111. According to Fleta the serf who has been ordained may be degraded by the bishop if he proves a disobedient clerk, and thereupon he relapses into serfdom,
• Note Book, pi. 1217 ; Stat. Westm. I. (3 Edw. I.) c. 39. . ' See above, p. 418.
430 The Sart^ and CondiiioM of Mnu [bk.
tib0r\ Aonwii«tnor yet ««nn'; but n oierely rvUtive Mrftkitu b B jurintic curionity*. In defining it we hare «v«r to h& nng the phrftftM ' in nUtioo to,* ' m ngu^' ' m ^[Ainai,* phiMW which would not out)/ occur to th« unlettc««d, and bw which allow* my serf to Mie anjr free man but mv, «von to rae my lurl doM not look like « nataml exprteHOD of en/ of tboM di«p- ■eetcd eoDtimeot* which demand that divers olaieet of bmb shall be ki'pt runindt-r. Then thin idiw of reUtiv* Mrritoilu bae to be fiirthor quAlifiMl bcforv it will iii]uarD with fiwto and eoatunm luid cunvnt uotions uf right And wrong. When a li«d allowv it to bo reeordod that ou the death of hia acrrile leowt be w i>nlitlnl Ui the beet beaut, he gum very kr Uiwardi admitting thai hu i« not entitled to aeate the chattel! of tw Mcf without good oaoee. We heeitate befon we daaoibe tlie wrf h» ri^thUuee even aa against hit lord. and. if we infcr want of right Crom want of retned/. wo foci that we may be doing viohaioe to the thoughte of a genomtiou which eaw liisb diffpnooe between law and cuxlom. C>n thr whole look tog al the Inw of Bracton'i day wo luigbt gucM thai here ae tleeihtte the king's court hae be«> carrying out a great work of ria^fil- oatsou; wo might even gneas that ite ' aerf*^-i]Ietn.* rigfatlow agniiL^ his laid, free i^ainat all but his lord, is ae » natlcr «f hiaton- A compoeite penon, * serf and m villein rolled into OMe*. That thia ainipUfying proceM greatly improved the l«^ I of pontion of the serf can hardly be doabCed. We Bead boI Jff^*^ indeed soppoee that the Uuuw or Mrrtv of earlier tiaaa bed been mibjected to a rignrooiily aNUtstent ooooeptaoa of ahrij Still in the main he hod been righilow, a chattel ; and we mag #<
* !■ «o tfa« Uti ud aUkmm wm SnoMr, D. B. O. L 101.
wadd mJckt Man to mb* hmU* Um rob* oa
wtf iMthMi. [lai ■ M iMi iMrtUag •mMimc aiVM W
nMmU MfllM aad ibi law «Uafa ■■iHitwii aai wa «r
vTBind fat tkab nttta iIavw. II «■■ fill* olnaHid fcysiy ii» tl *mi^
tMtr.' aai npodMtd. Ihosfk H had harify «efM, At mabt ^—b it
Baeuw l*«. Mm T. R. CoU^ An Imfahj IpM ikm Ut»
■ Tba «aBl«Dpanry law of fnam kaaw hff« la : irall apart. Bfalfw Iba knaar wd ta Baa4 to dmnto th» wkola aiM ■> jnTi " -' ' ' -MalamtMlaairili ■ai itpMiaika ronniato m c'aifttvea ee laiwa Wkn, pat i aoavM U taaan aa HUmiji aal oppaiAt i le
IjaaMn^ Haaerf Am leilUnrtiiiii. p. im A iinlMii y WwmA mam ^
Bnstoe^ baok mrald bawr aenutd turn of niilaf ap torn dbaaa •( i
tear iha viMa a^ tte a^^^
CH. n.§3.] The Unfree. 431
be sore Uiat his rightleBsness twd not be«i the merely relative rightleasoesB of the 'aerf- villein' of later days, free against all bat his l(»d. Indeed we may say that in the course of the twelfth century slavery was abolished. That on the other hand the viUani 8u£fered in the process is very likely. Certainly they suffered in name. A few of them, notably those (hl the kii^fs manors, may have &Uen (m the right side of ^e Boman dilemma 'aut liberi aat servi,' and as free men holding by unfree tenure may have become even more distinctively free than they were befiwe ; but most of them fell on the wrong aide; they got a bad naihe and were brought within the range of maxims which described the English iheow or the Boman dave.
tVobably we ought not to impute to the lawyers of this tim age any ctmscions desire to raise the serf or to debase the^imSf vUlein. The great motive force which directs their doings in this as in other instances is a desire for the utmost generality and simplicity. They will have as few distinctions as possible. All rights in land can be expressed by the formula of dependent tenure; all conceivable tenures can be brought under some half-dozen heads; so also the lines which have divided men into sorts and conditions may with advantage be oblitesated, save one great line. All men are free or serfe ; all free men are equal ; all serfe are equal : — no law of ranks can be simpler than that. In this instance they had Roman law to help them ; but even that was not simple enough for them ; the notion of coloni who are the serfe of a tenement rather than of a person, though it might seem to have so many points of contact with the facts of English villeinage, was rejected in the name of simplicity*. They will carry through all complexities a maxim of their own : — the serf is his lord's chattel but is free against all save his lord. They reck little of the interests of any classes, high or low ; but the interests of the state, of peace and order and royal justice are ever before them.
We have spoken at some length of the ' serf-villeins ' of the The thirteenth century, for they formed a very large class. For "h^'jISfB. several reasons precise calculations are impossible. In the first place, tenure is so much more important than status, at least so much more important as a matter of manorial economy, that 5] the ' extents ' and surveys are not very careful to separate the personally free from the personally unfree. In the second place,
> Brscton, f. 4 b.
433 The iSorto artd CondiiWHa of Mm. [bk.
it is highly probable ihni Inrgr uumbm of laco Uiii oot on which tido of the Ic^l gulf thoj stood; they uoA
Uwt
IIOO(KlDt«d TillHB^
Anoestora had been doing acrv payiug merchet and ho forth ; but this wok not ouadmiira, mad if ibey e«capfd frum their lord it mif^hi be ven- difficalt lor him to prove them hin ' luttivefl.' On the other band. whil« tbey retnainod in his power, they could haw little hope of provii^ tbomHclven frLH*, and if tbuy Hcd they loft their all behUid Ukcm. In the ihinl placu. a great pari of uur infonnatloo ouona bmu thf aitatefl uf the wealthiest abbeys, aikd while admittng to tha full that the mookii had no wiah to ill-treat their }n— aiiU'j. can not but believe that of all loids they wero tha mart and most far-sighted I^wtly, we hare as yet in prink but Ui infonnation about certain countiea which we have aappoae were th*; leajt tainted with »>ervitui]c!, about (already in Edward L'» time it waa wid that no ooe amid fa* bora a villein in Kent*), about Norfolk and Suftilk. aboat th« Northtimbnun tthinat. Sttll, whf*n all ia Moid, thnrv ninain iW Huodnxl Rolls fur tlw oounLitM of Bodford, Buckingham, Cu»- bridge, Hiintingdofi and Oxford, and no ODt mn nad tktm withuut coming to tht* oonclutunn that the grvater half of th$ mm! population i» onfttw. The jurors of varioaa bttodnda may icll u» this in difllvnmt way*; but very eomfluttljr kf wrnie nami! Mich aa maUti or Mm', by nme phnwe abo«t 'nuaom of flesh and blood* or the like, they abow tiMir belief that taken in thr lump tboae peaaaota^ who aiw fte^oldcn and are not tviyal aokeroen, are oot ftwe
Oooaaiooallj a man who was bom a villmn mif*fat gmod career open to him. It was mid that John's tmalf captain llcTard de Athie, wboae nam* la haadad dowa to infajny by Blagua Gut*, wiu of aarvile birth'; in ISU the bishop of Durham maoumitlod a aeiular of Martua vlh> vaa alraady a - master''; in laOS Simon of ?mm, mmwr Md M»» man. who had been ^erifTof bMidon. waa arwatod a« a viUein, alter being ratuired to mqtv* aa twava of his manors
* HmUA Omtumal (HHIiUm. L ttl)} T. B. l»-l 14*. L p. i«a. >m ■• Mol* Dooh. H- HIV-
■ MaIUmU, nm0 ot Uw Crmra br niiiiiwitwrtlii. p. sUL
> Dipatiitoii aa4 ffiilwlsniil ftmmUm^t In* Ika Oaan W (Bartsa Bot.), p. «.
4T. aiMv. ILt4: IfliH li lill|ahfi|>ai.| IM
OW ■■UI
btfin^^H Ls tiiMarM
CH. n. § 4.] The Religiotis,
?.««] § 4. The Religwus.
Another large part of medieval society is made up of men ariidisaUi. and women who have * entered religion and become professed," of monks, nuds, 'regular' cauons and friars who have taken ^ vows of poverty and obedience and quitted this warld. Now a Is^nsition from the viUein to the monk seems harsh, Biucton however makes it: — ^the villein being under the power of his lord may, like the monk, be considered as 'civilly dead'.' From the lawyer's point of view the analogy that is thus suggested will not seem altogether fanciful and profllleas. It is not as a specially holy person but as a property-lesa and a specially obedient person that law knows the monk. He has no will of his own (non kabet velte, neqtie ntille^) because he is subject to the will of another, and, though as a matter of religion that will may be thotight of as the divine will expressed in the rule of St Beiiet or St Bernard, still within the sphere of temporal law it is represented by the will of the abbot. It could not be Buffered that by a mere declaration of his intention to live a holy life untroubled by mundane affaii^ a man should »huSle off not only the rights but the duties that the law has cast upon him; but a vow of obedience is a diiferent matter; it is not very unlike a submission to slavery.
The fiction of * civil death ' seems called in to explain and Growth of define rules of law which have been gnidually growing up', civil death. By the dooms of ^tfaelred and of Cnut the cloister-monk is forbidden to pay or to receive the feud money, that is to say, the money payable by the kindred of a man-slayer to the kindred of the slain, ' for he leaves behind his kin-law when he submits to rule-law'; he ceases to be a member of a natural family when he puts himself under the monastic rule and enters a spiritual family^ Already Alfred had decreed that if I entrust goods to ' another man's monk ' without the leave of
1 BractoD, f. 421 b : ' Eat etiam mors oivilis in serro in Benritate sab potM- tate domini oonstitato.'
' See e.g. Lyndwood, p. 168.
* For the parallel and doaely aimilor French law, see TioUet, Histoir« da droit civil, p. 283.
* £thelr. viii. 25 ; Cnut, t. 5, § 2 : ' He giX of his nUbg-lage, >oime he gebjhS tii regol-lage.'
P. H. I. 28
484 Tke Sorts and Conditiotu of Men, [aK. U.J
thM monk's ' lord ' and the good* ore Iom, I must go witlKMiij remedy'. At a later time we find the aamm prioci{ilB a^iHeAl if the niunk lo whom I have* entnutad the goodi deasM thm r««eipt of them, and the mook u here cla«ed olnng with Um sUre, the wife, thu infnul child Thaao poangea immppoM lluit wc con uol s\iv the iiiuuk without hb pruUtc, his 'lord,* and thuy declare that the monk can not moke hi« pr»bu liable fur the siifet)', ur the return, ur the price of guoda, ualCM he has been cjtpruMly authorized to do ao*. But it » v«fj doubtful whether in the days before the Coaqiieat or cToa §ot\ «om« jroar>t afl^irwanjit the principle that ia hinted at bjr (h* tenn 'civil death' was riguroualy uulbrced Thu older oad Uxer forms of mooostioimn could not be overoomo by on* blow. In .^ihclrod'ii day the clninterlem monk who recked not of the rule but was tr}*ing to moke the best of both worids waa ««fl known*. We find tou in Domesday Book that a monk will sometimes hold lam) of his house, ur of hia abbot, sad ifas stats asenia to rcf^ard him as being the rraponsjble Ictnaat uf tlMt Und*. -^^ Bui stricter notions bcKon to prevail and to find
in the term 'civil death.' In one lai;go deportment of Uw tfas fiction is el^aatly maintainwd A monk ur nun can noi ac(|uiro or have any propristaiy righto. When a maa beeowss ' professed in ruHgiun,' bin heir at tmce inhorita fnta hun say land that he has*, and, if he boa mode a will, it tokos oflsci al unce tut thimgh ho were natorally dead. If after this a ^"rmrr of his diea leaving land which acrording to the ordinary miss uf inhsnianes would doscood to him. he is orsrloukod aa ho w«rp DO loDger in th« land of the bving; the n mi»ieM him and pAoses to some more distant reUtira. The r«W is not that what desooDds to him bsloogi to thm hottss ai wlush
' jUCSOl
*Caai,t.4.|a,0sd.CUb«ii Us. Bar. H^|S.Uw|t,&. Oa Uw aitei
bud. d» abbel hai I* utnm lofflha mU of Uw aMteolterte* wt hto Ww^ ^ of lb* wamiM, mUatm, ■lianwir, ^tatknj and lb* Mho T^T te** power of Madias bin. ■ JtttHdr. «. S : n. a,
* <^. P. B.L W: *FrMWrbaB*MmalMl«l rtV pi llistiil
BManlii ^am aaat^oaai fiUanraat Dt tarn ^wm mm
Ainsdsi mammAm I htdam UbvaliMr 4i AUiato JiMMAw aior ^ s k«7naa*fl vanuiM. 8» kt* m ItTi M k
• Tfcb aiipMn alrwly is (HaaTtU. sfli. «, C
CH, IL § 4.] 7%^ Religions. 4S5
*^ff] he is an inmate j; nothing descends to him fur he is already dbeadK In the eye of ecclesiastical law the monk who became a pri!)prietQ.riitf{, the monk, that is, who arrogated to himself auy proprietary rights or the separate enjoyment of any wealth, DODimitted about as bad an offence bs he could commit^
A fiction, however, which would regard a, liinng man as l>i%«HTi» dead must find that limits are set to it by this material world, fivm dvU A monk does wrong or suffers wrong ; we can not tteat the ease as though wroiig had been done to a corpse or by a ghost, A monk of Ramsey assaults and beats a monk of Thomey; the law is not content that the injury should go unredressed. As regards those grave crimes which are known its felonies, the monk is dealt with as though ho were an ordained clerk ; he enjoys that ' benefit of clergy' of which wd must speak here- after. For smaller offences, the 'xniBdemoanours' of later law, monks, like secular clerks, could be tried by the temporal courts and imprisoned^ As to torta or civil wrongs, the rule wag; that the moak could neither sue nor Be sued without his 'aoForeign.' The man assaulted by a monk would bring hia action against that monk and that monk's abbot, while, if a monk were asaanlted, bin abbot and he could bring the action*. The abbot seems to have been entitled to receive any compiin- sation that became due for damage done to the monk, and to have been compelled to make amends for damage that the monk did. Our law did not say that a monk could not sue or be sued, it said that he could not sue or be sued without his sovereign. Nor did it say that a wrong done to a monk was the same as a wrong done to his abbot, or that a wrong done by a monk was the same as a wrong done by his abbot. It is not all one whether a monk of Ramsey has beaten a monk of Thomey, or the abbot of Ramsey has beaten the abbot of
- 419] Thomey. The maxim Actio personalia moritur cum persona
> Select Cml Pleas (Seld. Soo.), i. pi. 206 ; Note Book, pi. 455. 1057, 1189, 1566, 1594.
' See cc. 2, 4, 6, X. 3, 35. For proceedings againat a proprietariut, see Lit, CantnarienMB, iii. 176-7.
* Edward I. kept ten of the Westminster monks in prison on the ground that the;, if not cognizant of a robbery of the king's treasury, were gailty of negligence which made the robbery possible. Kishanger, 222, 225, 420 ; Flores Historiarum, 116; Pike, History of Crime, i 198.
* See the writs in Beg. Brev. Orig. 107 b.
28—2
486 Th^ Sorts and Condiiions of Men. [i
lb* nail — ■ft.
Btanst to bave been applied ■« though the two raoiiks ««n truly peratmat. The aotioa died with tho ofTonding monk awl with the offended. Often enough tht< analofQr afforded hy the law of husband and wife w brought into the d«bat«. A blow giron by John'H wife to PutcT'n wi& ia not tb« aame ■■ » Uov girtm by John to Peter; yet John may have to jMjr nuoiy becauBB his vife is a vtriker and Peter may reeelva hmm^ becaase his wife has been atrickea If we may judge fitwn tite Year Bociku, a Ion;; time elapiwd hofnrr arcurate ralei abosi thia matter were evolved, and perhaps nome qneationa vm still open when tho day came for the suppraaioo of the monaKtcHes. Bnt the main pnnciplo that guidm our lawyer* in thifl region is, not that tho monk ia dead, but that, though hr con do wrong and imflfer wrong, ho haa not and eaa uol bare any propvoty. Problems which in thcnuielTCfl w**re dilEco were made yet more difficult by the alow growth of the that tho hood of the mMuastor)'. though Ku is a natural ia also in a certain sense an immortal, nnn*natural peiwoa. 'oorpoiation sole.' and in likewise the head of a * aggregate'.'
A munk could make no contract ; but he was fully oapaUr of arting m the agent of hia sovereign, and «faa in litigatsoa he would uRcu appear aa the abbot's attorney. A nook migbl be another man's executor, for th« eiecution of teatamsma ii a spiritiul matter*. It would be a misUke to Mppose tbal mouka never took part in worldly affain. The obertiantiariai of a great abbey must often have been ken man of largely engngod in buying and selliug. and the manorial of the abbey were frequently held by the oelkrer or aoMe oUnt penon who was ci^-illy dead. Whalevor tha aeolemaatical lav may do, the temporal law doea tMt attempt to keep tiM moak* out of oowta and fain and mariceta; it mareiy laya that a monk haa not and can not have any pfoparly of hb owk.
■ tiiNTMili^ JliiMiong «iU ba Isand la Y. & 4* B4w. UL L M Ob*. fl. <)l SO B«B. n. L St (HU. pL Itl.
• T. a S Baa. TL L SI <HU. pL S). la hto ihsw^w af ii mIii h» mt0t^
naa n* bia e«D aaMBlarr Wbaa ovtafl noa^ to «
la U and aAwMids aMM af b. Bm
L. lI I liiiui ■■ ■■iinliirTllhiii lln In i nf hif ot41au7. Bm l^ndl««a4, ^ IM.
«sJ<ta
II. § 4.]
The Relif/ious.
437
^O The manner in which the monks were treated by the ihuu^ eocleaiAstical law we Rhnl) not discuss ; but the tcmjKtral law to have assumed that uvtiry monk wa» the absolute ubject of some 'sovereign' — normally au abbot, but in some ises a prior or a bishop'. Whatever degree of 'constitutional '"government,* of government in accordance with 'the rule' or the statutes of the order, of government by an assembly, by a chapter, might prevail within the house, was no affair of the aecular power. It treated the sovereign as an absolute monarch and would hardly be pereuaded to ittep between him and his subjects. Against him they could urge no complaint We may indeed suppose that he might have been indicted for flhijing or maiming them ; but even in this case he would have enjoyed the benefit of clei^ and been sent for trial to ao
iKcIesiastical court. So long as he did not deprive them of life or limb he committed no crime of which the lay tribunals Would take any account, and undoubtedly the penances that were inflicted were sometimes extremely rigorous'. According to the common law of the church the monkn might appeal from their abbot t-i the bishop of the diocese, but some of the great hou9eB were exempt iix>m the bishop's control and then there was no help to be had save from B«3me. Occasionally the monks would unite lo resist their abbot, and Berce and pro- tracted litigation before the Roman curia would be the result*. ^LBnt the individual monk was helplc^ ; if he escaped from his ^■cloister, the temporal power would come to the aid of the , church and deliver up this 'apostate* to his ecclesiastical ^Ksupenoni'.
^" lAte in the day we hear discussions Jis to the possibility of R«tanit4 the dead coming to life. In the fifteenth century lawyers said
< In OQT Uw French Uu term n»trflg» It t«ehnic&l]7 aMd to Ihit ooetezt: taa«.f. firittoa. i. 15'J.
* Sw the long ttatomoDl u to th« croelUea prtctised uooDg Uic DominicsD
(frkn: Florta Uistoriarum, tii. IGl. I * Tfa« grc*( qasm-1 b«ttreea the monks of Canterbury and the two anb- biihopi Baldwin »nd Hubert, of which a long ftooount iw ginn bj Dr Stubba in Ui« Introdociion to th« Epiiitoliui CaotuariutSM, ia a cluneal example. But b«re the quwtioo, if rttgarded froui Uio point of vi«w of Riijjliiih ti^mparal l«w. ■«■ tfaia — Whother the archbiaho]i was or waa not the 'flov«rri4fn' of the olhgdral tnonntfry.
* Sm tb« writ De apoilata eapUndc, Bag. Brvr. Orig. 71 b. A good •torjr of lp« ia told io Litena Cantoarieasra, iJ. p. uiTiii.
438 2%€ Soru and Ccmdiiicm of Mm, [bk* n.
••■d*-
tbftt, though the 'Nuvereign' might releMe Um DMnk firvm bii t^*! obedieooe, ncoe but the pope could rvitore him to the ««tU of dvil right*'. Rnlen about nioh m poiot had not bean twrj tMrfiiwn. for difl|wumtif)tut from monaatie vovb had beao m- oommon. Uf coarw in a manner the monk c»dw b«dc le kgd IHe if he became the aorereign of a religiotm houaa, attU man if, EH well ho might, hi> became a bixhop ; but it may ba moch doubted whether thv Uwj'eni of the thirteenth oeutur^ «oqU hare Boon in this the now birth of a natural peraon. Tbajr bid not drawn any alwr liM betwovn * Ofttamt ' aod * jurwtie* pcwoM, and the munk who vaa olootcd to an obliacy baoama tliarabf pvmma m^mag^ the human repraatmtaiivo of a imtitntion. Only hy virtu« of papal bull and ro^ eonkl on abbot makt* a valid will, for 'by the common law an abbot can not have pnj|Nrt^ or executors'.' We are not mv that an abbot could have inbehtod ftwu a IfiMfimn Tb« daal per»onaJity of a btafaop aeauia to bava baan nora rtadiljr ad* mittad, atill, aa we shall remark below, there had ba«a nadi oontroveny a» to whether a biihop bad anything to l*«Tt br his will. It i« not easily that lawyen oocne to think of a*# man as two pcrp»Dii. nr to talk of 'offieial capncitM' and 'oorporationa sole.'
We can not take leave of the uonka wiiboat Dotieiiif ibal in tnedicTal law moDattictsin ia no Mich unlatcd fhtmammm aa it woukl be in modi^ni law. Of Cfiuree the rrlationflup ihai exiata between abbut and monk ia not just that which <iiiaf between lord and villein, atiU leaa U it that whtdi «• mm bctwt>en husband and wife. But to eompans tbaae tbvw reUUuuahipa togvtbar ia not the merv fetch of an adTooala al a k»e ftir argumenla oor the fancy of a tuo subtJo jnriaL JU a matter of history they well may have a oooui They all may bo off-»boot« of one radjoal ide^ tba( of tb* Oermaiuc mtind. a word which we feebly midar by akip or /froCecfioa. Certain it ia tbat oor ooauBea law of husband and wif(.< curiuuidy reproducea aome featana ef ibe kw of abbot and monk, and we might andenland the ta^al biilMCy of villeinage and the legal bif»tory of ■iiinaaliriin tlie beWi if i w* brottght them iotu oooaexioo with each niber.
* T. B. s Hm. tl t a IHB. ft fl).
• T. % «»-a B4» I. U4.
CH. IT. § 5.] The Clergy. 439
H] § a. The Cl&rgy>
Collectively the clerey are an estate of the realm. With ^*BfA thLS cnnstttutional doctnne we are oot here concemedt nor are i>f th<" we called upon to describe the organization of the clerical body \ ditrk but, taken individuaUy, every ordained clerk has a peculiar hga\ Btatua ; he is subject to special rules of ecclesiastical law and to special rulea of temporal law. We can not say that the clerk is subject only to ecclesiastical, while the lajinaa is subject only to temporal law. Neither half of such a dogma would have been accepted by state or church. Kvery layman. utileHB he were a. Jew, was subject to eccleaiastical law. It regulated many affairs of his life, marriagea, divorces, testa- ments, intestate Buccesaion ; it would try him and punish him for various offences, for adultery, fornication, defamation ; it would constrain him to pay tithes and other similar dues ; in the last resort it could excommunicate hinn and then th& state would come to its aid* Even the Jews, though of course they were not members of the church, were (at leaat so the clergy contended) within the sphere uf ecclesiastical legislation aoU subject to some of the processes of the spiritual courts'. Tn general terms we can say no more than that the ordained clerk was within many rules of ecclesiastical law which did not affect the layman, and that it had a tighter hold over him, since it could suspend him from office, deprive him of benefice and degrade him from his orders. So, on the other hand, the clerk was subject to temporal law. It had some special rules for him, but they were not many.
At the end of Henry III.'s reign, with one great and a few The derk petty exceptions, the clerk was protected by and subject to the poriiUw. same rules of temporal law which guarded and governed the layman. If a clerk was slain, wounded, robbed or assaulted, the wrong-doer would be punished by the temporal law just as though the injured person had been of the laity. The clerk could own chattels, he could hold land by any tenure, he could i23] make contracts ; the temporal law protected his possession and
' Langton'a Constitution h, 1222, o. 51, fi2 (adopting oanoos of the Fourth Lateran Council) in Johnson, Canonti, ii. 120; Gravamina of 1367, Mat. Par. CbroD. Maj. vi, 3tiO-l; Boniface's ConstitutioDB, 1261, e. 7, Johnson, Canona, U. 197.
IW. AU
boil
ShTi
hU propri?tar7 nghtn. it onforreH his rontrortA. witboat tekiBf any note of hu peculiar Htatiu. ICren when he hat] to MMrt poMMtoiy or propriftary righu which belonged to him ac Um rMtor or p0r«ona of a church, he hod to do thin in tbe hjr courta, umally by the vary aame actions that were oumpateol u> biymfn, but cornGtimoa by an action spociaJly artapUtd la the needs of paraooa'. Wo ooant it no real excrptiaa thai a clerk who hjul attained to the mibdiaoonata could not many, for iht' validity of any marriage was a matter fer erdiwiaatical U« ; and on the other band, though the cainoas forbad the clergy U> engage in trade, wo arc not awaiv that (he lay ooorta ftUuDplBd to enforoe thiM nile by holding that their trading eontnute wet* void. Then the derit waa aubject to the tenipotal law. Ail the ordinary civil actionn could be brought against hii could be Auod on a contract, he could be »ued fur a could bo sued an a dimcinor. be could b(> mudiI an one who what did not belong to him, and thin although he was Ikolifisf it it) thu name of hi*t church. Muroovcr. fur any crinM Hhort of felony ho amid be triad and puni)ihe<l in th« way. ^^ Tbero uo ft few mnall exceptioiu. Aj • guiMftI to nwlmriaiitiml eourta may not take oognijMMie of an Twleneeu If a layman u aoaalted, they will be prohibil frtitn inflicting punishment or penance upon the oflaod* - i' viulenoe done to the penon of a clerk m within their aa&i Aa alnsady Baid it IB abo within the oompeleiMe of the t' tribunals. He who haa amaultcd a clerk may bo fined impriaonod fur hui brvach of thu king*« poaoe; he may] oompelM to pay damagoe far the wrnng that be baa do— , may be put to pcnanoo fur hia rin'; indead he U alraadj oommunioate <ato «fKl«»hiii» and. except at tha hour cf oui only be abeolred by the pope or uoe who wiehb authority*. In euch a nae the clorgy do twl eare to bvonnte maxim that no ooe it to be paoUiMl twice
oflfeooft. Bat thi* M a anail mftUn-. In avil deilc enjoys a certain (racdom from armt*. bat thia m
< Bw abOT*. f. SIT. ■ Bvwtoa* N«te Uook. yl. U4. T86| ilMU^l ftalBiM •! lb« hmtm, t 101. ITl:
• «. «, C 17. «a. 4; M Ljmiw^oi, p. *lt WjU.
mHi
IV.
CH. II. § 5.] The Clergy.
no great importance. On the other hand, the lay courts hove invented a speckl machinery for compelling the appearancB of clerks who are sued in pei-aonal actions. They direct the bishop of the diocese to produce such clerks, and will proceed against his barony if he is negligent in this matter. For this purpose the clergy are treated as forming part of his/amiVi'n — as bein^ within his ■miinrf, we might say, — and the episcopal barony is a material pledge for their appearance'. But this again is a small matter, and i^ far from being a privilege of the clergy' ; indeed they vigorously^ but vainly, protest against this treat- ments
It remains for ua to speak of the one great exception, namely, i's»eflt of that which is to be known for centuries as the 'benefit of clergy^'. It comes to thia, that an ordained clerk, who commits any of those grave crimes that are known sb felonieSp can be tried only in an ecclesiastical court, and can be punished only by auch punishtnent as that court, can inHict. But we must descend to particulars, for generalities may be misleading. A clerk is charged with a murder; it ia the sheriflTs duty to arrest him. Probably his bishop will demand hira. If so, ho will bo de- livt^red up ; but the bishop will become bound in a heavy mxtn^ a hundred pounds, to produce him before the justices in e)Te. The bishop can keep him in prison and very possibly will do so, for, should he escape, the hundred pounds will be forfeited. In the middle of the thirteenth century it is matter of complaint among the clergy that owing to this procedure clerks may languish for five or six years in the episcopal gaol without being brought to trial*. At last the justices come, and this clerk is brought before them, or some other clerk, who has not yet been arrested, is indicted or appealed before them. In the end it comes about by one means or another that they have before them a clerk indicted or appealed of felony. And now we may follow the words of the enrolment that will be made : — ' And the said A. B. comes and says that he is a clerk
' Bracton, f. 443 ; Note Book, pi. 143, 276, 407, 676, 802.
* Gravamina of 1257, Mat. Par. Chron. Maj. vi. 354-fi.
* Hale's treatment of this matter in his Pleas of the Crown is fall and good, bnt he sayB little of times so remote aa those with which w« are dealing. See Makower, Const. Hist., 999 ff.
* Orosseteete's protest, Ann. Barton, 424; Mat. Par. ChroD. Uaj. vi. 855-6; Ann. Barton, 417 ; Johnson, Canons, ii. 193 ; Court Baron (Selden Sodetj), 19; Select Pleas of the Crown, pi. 160.
kopor hM
I iM|d
i: bnnl
' aud Uial ho c&u not — or, that be will ool — oiMwcr here. AjA
* the oHwial of the bUbop of X ooiimm and denwoda bun M « ' dark — or, comm aad craw the bufaopH court.' In Bi»elaa*« day tbc clvrk will thereupon be doUvorMl to the bisbop or fail officer and no inquest will be made bj the putiem guilt or innocence'. Bal before the end of Uooty IILV the pruceduru will nut be to simple*. The roll of Um will go on to aaj — * TherelbrD let him be dvUvered ;
* order that it maj be known in what chareele*- {^mtdia) b« ie 14
* be duliverad [or, in oitlcr that the king's peaoe majr be |««- *tarvcd.] Id the tnith uf the matter be inquired of Um eoaaiby* 'And the twelvu jumn and the four neigfabonring tQwwliip4 'my upon their ualh, that be ia guilty, [or, not guilty] and *thereforo as such let him be delivortd' In other wocde the juMticMi pruc<tnl Ui take *an inqncet «« ojieio,' Thia ia nol a trial; the clerk has not mbmitled to it; he haa not pleaded; bat a verdict ia taken. If thii is fovoarabte to tba lowMid^ hi ia acquitted, at leant iit ao fivaa a eacnlarouort can acquit hial but if the juron are againvt him, then be ia delive««d to tbfl biabop*. In the one omm his laodH and gooda, if they been aeixed by ibe myal officer*, are at oooe reatorad to onleai be bae been guilty of flight and baa tbua liw'failad diattela*; in the other cam they will be nrtaioed until be been tried, and their fate will depend on the reralt of bta ti
> maHon. r. ISS b. Rarly naaplM «ai ha ImbJ la Um Ptas* «f Oravti, «.f. pL 4f (ft MUMHMa). 117 (ft wbdMMHi>, IM. IW. 1«0, l«a Moljrta), 197 ftad Koto Book, «.«. |4. MA (• priwl.
< CoU. tad 1ml 164. rifUly obwrvM thai finotoo it 18S h) ind Drilicw (nt. L y. 17). B« KHHlkmmm U M (1V7S| op. a. lint •» ft DwUM nr laet lfa» tgm nOm af Cb» I Hmt 111- «haw Utat Um difti«* km *inmdy tthm flMa tUm, tm
r(4lorftC«ubrideMhiM«jf»«f4ilUo III. f4«i« B«IK Ko^eH knev tnm tfaltlMw raria, Ohraa. MaJ. it. 014. Itei la 1I4T wm aate alwit eHalaMi elwto mhI Ikai lk» tttnff JMfa4 k, tal ■•llhtltalerildftiMfn. ITi ^Hi !>■ wwiiii^ ■! f^i 4o«bt wImUmt U» Maloto of W«tari««v M^ hmy *iiiMfc Tho nvw Uac MoitlDm tlw olvrioftl priTSi*^ kai liilf ite p' aiort b« ftfttvAit ia Itto aiaUv of |iim»'"". —* l^aA BUi«al to mahm mDa efaaae*. TbOTNpM la IfTV Ik^ ifloM 10 iBfffvn tbft yMoodan la lb* tpirnaal
• Thlo aaaoaai to Iwad tkh^ oa iha Amum IoU )«rt aft-- tteM ir Iho W4I0I to hiiiwhto Iho jaj^ii to tdm f«M».
• Y. t> W4 U«. L |L f7.
• HftK P. C. a. WH Tfa
CH. n. § 5.] The Clergy. 443
For tried he has not yet been. He will be tried in the bishop's court. 18] Of what went on in the bishop's court we unfortunately TrUbi the know very little ; but we have reason to believe that before tb^dli^. the end of the century its procednre in these cases was already bflnoming little better than a &roe. In criminal cases the canon law had adopted the worid-old |nx>ce88 of cmnpurgation, and here in England the ecclesiastical oourts had aevei reformed away this ancient mode of proo£ The blame for this should net fiUl wholly upon the prelates. Very possibly the lay oourts would have prevented them from introducing in criminal cases any newer or more rational form of trial Had any newer form been introduced, it would have been that 'inquisitorial' proce- dure which historians trace to the decretals of Innocent III.* In the twelfth century we find an archdeao(m who is accused of poisoning his archbishop directed to purge himself with three archdeacons and four deacons'. Lucitu III. told the bishop of Winchester that he was too severe in investigating the charac- ter of compurgators'. Bishop Jocelin of Salisbury cleared him- self of complicity in the murder of Becket with four or five oath-helpers^ Hubert Walter, sitting as archbishop, fiwbad that more compurgators than the canonical twelve should be demanded". Shortly before this we find the bishop of Ely offering to prove with a hundred swearers that he took no part in the arrest of the archbishop of York'. No doubt in theory the ecclesiastical judge was not in all cases strictly bound to send the clerk to ' his purgation.' If there was what was technically kno'A'n as an accusatio, a definite written charge prefeiTed by the person who was injured, the judge might hold that the accusation was fully proved by the accuser's witnesses and might convict the accused'. But the proof required of an accuser by the canon law was rigorous', and, from all we can
it was a Hecond punishment for a single offence; Gravamina of 1257, Mat. Par. Ti. 356.
' Foumier, lies ofScialit^s au moyen Age, 262-281. No doabt this procedure vaa used in the case of minor ofFtfnces ; but we are speaking of felonies.
' Letters of John of Salisbury, No. 122, ed. Oiles, i. 170.
3 c. 9, X. fi, 34. The whole of tit. 31 bears on this matter.
* Sarum Charters, '65. ' Johnson, Canons, ii. 81, 91.
* Hoveden, iii. 250. ' Foumiet, op. rit. 286-256.
* Thus in the case of the archdeacon accused of poisoning the archbishop, the accuser could not make good the charKe ' secundum subtilitatem legnm et canonum ' ; see John of Salisbury's letter cited above.
444
PwiHlk-
vhritB.
lU SorU and Qmdkhwt rf JUm. [bs. U
htmm
i
(boo >
'1
hror, Che cximmoo pnctic« iu EngUod neemt tA hare been I allow the clerk to purge hinuvlf. ArchbUhop Peckhftin at the \% •tancQ of E(]ward I. vnpicly onlereil that this should liot li done loo rmdily'; in the middle of thu fourteenth oootai; Arehbinhop UHp nude % not veiy eanu-At ofTort for the end'; but the wbolo prooednre ww falhn^ into coal Alnwljr in ourtAia bftd OMe» the Uy coart« wen furbiiJdii biAhop* to achnil the ucuMd clerk* to their pw>gfttioo'f ftooording to the old theory, were forbidding that tb«ae eierka ihould ba tried at alL So «uiy m ISS8 v« find Ih biHhup of Excl^T in Iroubk* fur having Mint to pucgatioo > r<ubdencon who ha<l been oullawr^l on a charge of murder, aarf though the clerk han purges! himaelf, he is oovpellod to the realm*. In Edward L'h day the king't jaatiean floaUj a oauonical purgation with the scorn that it dewrred'*
If he fiulod in his purgation th« cleric wm eanvietod art puuished At least in tbvory ihura wen many pnniibBwati i the bishop's disposal. The chief limit to his power wm hI \ the elementary rale that the church would never pteooaBOi p jadgtnent of blood. Ho could dqprade the dark froa his onl«l and. as an aiJditionnl ptinixhtnent, relegate htm to a or keep him in prison for life. A whipping night be inl and Beoket, it seems, had recoune even to the bnuiding One of the minor qucetions in the quarrel beiwaen Th( and Henry was whether an eodesiastioal ooari coold convidpsd clerk or compel him lo abjure the realm*, li UL told tho bishop of London that clerks oonnct^d of or other great Crimea were to be firat degraded anH - ' imprisoned in moaasteriss*. In 1123 a church Stepbea LangtMi seems to ha>e ooodenuied two of the that doae imprisonment which waa known as immi
> Mbmmm, Gftam. U. MT; Btei. WmL L ft. S.
• nwwUnatns a< 1161, Jobasoa, Cmm*. U. 4U.
> Amn'i AW. B7te7. Ptee. Pari. M j ■oBs of milBii P. a U. Ma
• loL Gt tS H*a. UL B. 17 d; Mmftf BnMpi. t U4 fc.
• BoUi of Put L 14& U li ^Ja^*4 tktf t«o ftdnlbiT. Uwofh llNgr hna psipil Ih—iilii i la
COSpSf^llOn WOT MMBN.
• HMktrt «r tlwhiia, UslHkk far BUsry si iHtal. 10.
' nu St^phsa, Xatari»K Ui. «-«.
• Biitol if BMhiM, MBMfteli. ML ««T. tm
• a. H X. 4. n.
II. t
;h. II.
5.]
The Clei^y.
445
I
cnlphts had been guilty of fanatical blasphemy*. In 1261 tbe
nstitutiona of Archbiahop Boniface required that every bishop should keep a proper prison, and declared that every clerk con- victed of a capital crime should be kept in gaol for the rent of his life*. Thi^ then was the puiii.sbroent due bo felouious clerka; we feai' that but few of them sufiFercd it.
The privilege was not confined to clerks in orders, for it was wiiat shared with them by the monks, and there seems no reason for wen doubting that nunH were entitled to the same privilege, though, ^'t),^ to their credit be it said, we have in our period found no cases P""'«8*' which prove this". On the other hand, it had not iw yet become the privilege of every one who could read or pretend to read a verse in the bible. The justices insist that ordination must be proved by the bishop's letters. It is still regarded rather as the privilege of the church than of the accused clerk ; if his bishop does not claim him he will be kept in prison, perhaps he ivill be compelled, as a layman would be; compelled, to stand kia trial*. We are not able, however, to indulge the hope that the bishop allowed the criminal law to take its course unless ■he had some reas<m for Iwlieving that the clerk was innocent*. The plea rolls seem to prove that his official sits day after day the court of tbe justices in eyre and as more matter of cotuse 'demands' every clerk who is accused ; and in every ejTe many clerks will be accused of the worst crimes and their neighbours will swear that they are guilty. By marrying a second time, or by marrying a widow, the clerk, who thus became tijnmua, forfeited his immunities: — this rule, promul- gated by the council of Lyons under Gregory X., was at once Ireoeivecl in England and a retrospective force was attributed to it by a statute of Kdward I.* ■ Uftilluid, The DeACOD and tbi levnu, L. Q. B., U. 153. IC-V * JohoBOn, Cuioiia, ii. 'iOlS. I * H&1«, P. C. ii. sas, utfft, 'Nuoii had tb« exempiion from tumpnraJ juria-
diotioD, but Uie priTilegs of vkrgj wu never kllowed them by our law.' Bui nlMirhnri. P. C, ii. 871, ' AlwientI/ nans profcsBcd were admitted to the privOags of elaigjr.* Ha citaa a eaa* from lS4d, Fttz. Abr. Cor»tu, pi. 4(tt, whidi *p«ak» of a woman— fthe ia not expr««aly colled a duo — bains Al>iinad bj and dcllrcrad to tbe ordinary.
* Btlaet Pteaa of th« Cronm, pL ISA. Al a later dau the jodgee would alloir '* tdi dergy ' to a uao who oonld raad, though the ordlnaiy did not claim him ; Hale, V. C. u. S79.
' Tliis dope u expresKed by Dr Slabba, Conit. Hiat. 1 73S.
' c. un. ia yf. I. M ; Ststtiu:' 4 Edvr. 1. Dt BifomiM. For an early oaai of
dhMM
It is probftbie ibM already in Ibe thirtoonfeh oeotaiy s elavfc It-MI durged with high treaaon, nt all evenU with one of Uw wuvl fonna of high treMOO, nch u imaffiiuu^ the king'a dettth «r levying war ogMBsft bina. would in vaiu have relied on Ibe liberliM of the church'. There aeenu eren to hare been aome doubt M to whether counterfeiting the king's aeal «■• not a crime so high as to exceed the limits of the derical kb* munity*. At the other end of the scidfl the cIcHt chsrgvd with a mere tratuffnuio, a misdemeanour we may say. enjoyed no exceptional privil^e but oonld be fined or impriaoo«d liks another man. Henr^- 11. within a very few yean after Bcdnl^ death and while the whole of Christraidom wu ringing with tbo fiune of the new martyr, was abia to inaiat with tbe amMl of a papal legate that fbreat oflbneea wen not within tba benefit of clergy', and before the end of the next centoiy tbe by eooita wore habitually punifihiiig the oJosgy ^ fc^av fc— a grmmanm. Howerer. it fihouM bo nndefitood that tb* lUI flsbevt of the cluneal cUim had been and was that, not manly erery criminal chaige. but every paraonal aotioo, agaaaM a cIm^ was a matter which lay oataid* the eompetaooa of tba taaapanl tribunal. Tliis claim died hard ; it was aawrted near the ead of Heasy IlL'a raign by a coostitatioo of Archfaiahop BooiiMa; BraotoQ bad to treat it with respect, though he Pejectad ti His doctrine even as to the felonies d defb is a cnriotts aad wv may a^ a very undorioal one. The king's court does wl tiy tbe accoHNl clerk : but there is no aoand principle vUifc preventa its doing m. Still the appropriate prniiaftmeet fbr Iks felonious clerk ia dagradolion. and this the lay tribonal caoMl inflicL. The logical reitult of this wooM be tbat tbe kug^ ouurt tthuulJ iry ihr rlrric am), shouM be ba oooricted, hand him over to the ordinary, not for trial, but (or pnnishmeoL Ho*» ever at proMot this sa not thv pntctice*. Probably it ia is oonaaqaenee of sueh raaaoning ac this that a fow yean later ths king's justices will not deliver up a clerk until thoy bar* Cm
'btaft«y' MS T. a M.] 14w. S* ^ MOi Vhte. r CI. t^t^m at ifcii^ Idraas. Th«s anuk bi loaM mktkks kua.
Lyoas. ThHSBUukbs » Bahk K a a »&
■ Mfrton'iMW, Rjrlqr. Mu. rsii Mi Bab af Fed. L «•; fl^^ F.afr, tai-f . llTMfcm. (. 4IS b. aUow* Uu rtirOim i» lUi aMS. • DiMlo^ i. 4ia « WhHh L Ml, Ml k, Mf. UU
n. §5.] The Clergy. 447
taken an ' inquest of office' as to his guilt. Thereby thoy do eir best to lessen the harm that in Hone by an invidious and miacbierous immunity. The criminal will pui^e himself in the court Christian, but a jury of his neighbours will have sworn that he is guilty. Further we must remember that all along the ju9licf9 insibt that, though the clwk ia not tried by a eccular tribunal, none the less he can be and ought to be accneed before it, and that he can be outlawed if he does not appear when he has been accused. In this way the criminal law has some hold over the clerk, though for centuries yet to come the benefit of clergy will breed crime and impede the course of reasonable and impartial justice'.
i
Here we might prudently leave ' the benefit of clorcy/ for *"» fon- speak of ita earlier history is to meddle with the quarrel oi n«- tveen Henry II. and Becket. Protesting however that it is
roit our part to criticize men or mntiveti ur pulicieb, wc are none the less bound to state, and if possible to answer, certain purely legal questions. These are in the main three: — (1) What was the -xcheme for the trejiiment of criminouB clerks that Henry proposed in the most famous of the Coustitutions of Clarendon i (2) What was the relation of that scheme to the practice of his ancestors? (3) What was its relation to the law of the catholio church as understood in the year 1164 f
(1) To the first question our answer will be brief. We roust admit that historians hare read the celebrated clause* in
ftuwt
flOMl i
■ h» MflUda the trantffreuioMn (tre«p«M anil misdnQcoiioar Rre bat itowlj fereitliatcd from e&oh oth«r) of clerkR, the liutory at thu matter may bo thu : — tn 117C Henry n. oonoedes that no ol«rk nhftl) be dravn ioto the ihj eoart ia hnj erimioal caiue or for any offenoe, except offences ■ffainst toxmt bw ; I>i«*to, i. ilO. Bnoton, t. iOl b, nyi clut tuerj day olariu an flOMl in Uif Uy ootuti both on contrMtt aud for trespssiea. In 1237 the datm ezemptiua in all persooal mtions ; Ana. Baiton. 251. In I'ifi? rtpeat the protest ; Mat. Par. vi. 8^7. lu 1358 Gnm^tmU r«pMU it, and bout Ihia time Bobert da U&riMO anerta ii in large hmna; Ann. Burt. 434, I'iG. In ViAl it U aaavrtad bj the Comttilutidim of Abp. Bonifaee: JohmoD, Caoout, ii. 185. It covers contract anJ (luafti-ri'iutract, dolict and <|uasi-deJici. In 1269 ihe Pope, «'ba baa rtaMOiu for not ()Dariftllin|^ with Hoiiry IIL, «iU nut eooAnu Uw constitatioQB, but imploies the king to Rim way : Boll of Drban IT. Fo«d«a L i2i. Tbc conflict ta dov D«arl,v over; bat even in 1279 a dark it ■tiU, tbongh vainlv, proteftmg tbat an action for auaolt and wounding can not b* broof^t a^aioHt bitn in tbo king's oourt; Hale, P. 0. iL 8S5. Maltland, OUMm Iaw in EnRland. E, H. K u. 647 : >Iakower. Cooal. Hiit 407 fl. " Maitlaod. Beor; II. and the CriniiuuUB Clerks. E. R. B. vii. 334. * Ooul. dar. o. a : * Cleriei reitati et aoouaali de iinaounE|ne re, auiamoaitl
TarimiH wnys; but for oar own pvt wo cannot tlmibt ilut it HMfy n.-i mouw thi)> : — A ckrk wlio is su^iHWUt] of ft crime is lo b« brought before the temporal court and accuaed ibem; unlfl* b» will admit the tmth of the charges ho must in fnnnal l«nm pleail his innucence ; thia done, ho will be Mmt to tha socJan' Mtical court for trial ; if found guilty ho ii to be depoaod fron hifl oidoTB and brought back to the tempoml oomt; royal offiecn will have been proHiut at his trial and will aee that b* doea not make his escape ; when tht'V have brongfat fatm back to the temporal court, he will thL>u — pechapa wlUiouS anj further trial, but thia ia not dear — bo seoleooed to the lay* mnn's punishment, to daatb or mutiUtion. Heafj doaa Dol claim a right to trj- or to pronounce judgment upoa th» criminous clerk ; on tho contrary, ho ndmitu that the trial take place in the ecelcnastical court ; bul he doaa ilMial three principles : (i) that the accumtion moat ba nade in lh» Uy oourt, which will thna obtain eeiain of tfca oaaaa and bt enabled to watch ita further progreas; (ii) that ro^'al offioerian to be preaent at the trial ; (iii) that the clerk— «r lalhaf Ut layman, for audi he will really be — who haa bean dtyuaaj^a from hi» oiden for a crime, cwi bu pniiiibad lur that crime bf^l the temporal power*. ^^
To thu adMsffla Beoket objected in tba narna af ilM ebimk't law. and it is oertain that be objected, not merriy to the tint two of theae thre*' rulea, but abn to tha third, and thia cm lb* ground tlmt it vruuld punish a man twice over for mm ofcwtj and thu« infringe the maiim, A*ac emim Dfu* iudieai kit ic/i/urum*.
1
s IflaUtl* nab TtiiMBt io cnriam ipaia*. f |»omait i rUiMittr eariM MfU quDd lbU«n lit iifnpiliii^iiw. « ta Hri» «oAt THihttiir qaod tUdnn ilt i iiynn^MiJaii t Ha miImb iMOlMMdiriM mi tHmijIiiis foa latiBM av M •iiriaw oiMriilBa v«l iijihim tewtt, bob 4aM te
* Tb« <«<mllollan WW U»» luidanteoj kf BaaMr, Am drtltao. 1. an->i I!«M«, rwifJllir^ainlilitili, M- S| *■ Oil Court. HkL 40>. Vt Btobhi. OodM. BM. L Ml. i^fi ttel Hawy thai *cMal arteladia AoaU W triid la Ihi acAua aMtta or 8MiyB«ra><MllBabBvaaawa mUt mlh^i yAvwm m Ihto la Iha tahwa *dhwJ fcj tfw Oliwa
> Malahab foff Uh tUrtoij of BMkal, a. M. tt. Hit H. Ml «lL polsl la ll» «aBttv*«nor mmam Unar iMirtil If »iiin'i MoanHMta >l>aD llHt ba toafainJ oa Uili aiaaBMt TMa ■ iMtmvnUtkm of tfa>
CH. n. § 5.J I7te Clergy. 449
s] (2) We torn to our second question. Did this sdieme ^^^ fairly represent the practice of Henry L's day ? We note that and put it does not profess to represent the practice of Stephen's day. "^'^^ For legal purposes Stephen's reign is to be ignored, not because he was an usurper, but because it was a time of war and of * unlaw.' Sixty years later this doctrine still prevails ; a litigant can not rely on what happened in Stephen'? rdgn, for it was not a time of peace*. Still, though the son of the Empress is but applying a general doctrine to a particular case, his pr^rnant assertion that the constitutions express his grand- &the^B customs seems an admission that those customs had in some particulars gone out of use under his immediate predecessor.
So sparse is the evidence directly bearing on this question ^^^^^^ that we gladly catch at any admission made by eitiier of the Dotoan> parties to the quarrel, and we may not un&irly u^ that in this case judgment should go by de&ult Heniy did assert repeatedly and emphatically with the concurrence of his barons and with the approval of many bishops that he was but restoring the old customs. Becket and his Mends, so &r as ve can see, would not meet this allegation*. When one of the mart3rr's biographers reminds us that Christ said, not * I am the custom,' but ' I am the truth,' we can not but infer that on the question of fact Henry was substantially in the right. The archbishop and his partizans are fond of speaking of ' the so-called customs/ as 'pravities' and 'abuses;' but they will not meet the king on his own ground*.
This premised, we look for direct evidence to the reigns of Earli«r the Norman kings. First we read how the Conqueror ordained The Con. that no bishop or archdeacon should administer the episcopal 2il^nc«.
crimboae clerks ahall be treated like criminous Iftymen. The bmoaa Nemo bii m idiptum may be ultimately traced to some words of the prophet NahDin (i. 9) which in our Bibles appear as 'Affliction shall not ziae op the aeoond time.' Gratian has much to say of this maxim in D, 3 de poen. For the distinotion that was gradually drawn between deposition and degradation, see Hinsohias, Kirchenrecht, v. 51.
' Bracton's Note Book, pi. 261 : ' non fait seisitns in tempore illo nisi tantum in tempore Stephani Regis quod fuit werrioam.'
' See Pauli, Qeschicbte von England, iii. 44 ; Beater, Oesohiohte Alexanders des dritten, i. 369-370.
' The strongest denial that the so-called onstoms were onstoms, is that whioh comes from Fitz Stephen, Materials, iii. 47: 'Sed scriptae naaqoun priQi fuerant, neo omnino fuerant in regno hae oonsaetadines.'
P. H. I. 39
450 77i« Sorts ttnd Conditunu of Men, [bk.
~1
tami in th* huiidNd eourt, nor brio^ to the judgmool of aaeuUr mon any causo rc-Utinf; to the rule of aoaU, Such ommm iW biBbops UT U> dvddo, uoL aooonUng to haodivd Wv. b«t aoooitiing to the cuioru mad the vpueopd Uws. Tho Mcnlar power is to aid the church aguiut thoao whom th* hm t^* exoooiiDiuiicafced Tho condaot of the oniwl u a ^noBUj •cdflnMtieiJ pruocM ia declared to ba tho biihop'a boataaM*. This tolls us little that is to our poinU William aMuioaa ikat all rovn know what cmuMt ut ^Mritttal. what Mcalar. TW ouljr maltor on which ho spoaka d«fiatt«ly is iba wtlMl, aad here the two powcn will ounperat^ hormaaioualjr ; the will preside at the oerenooy. but doubUeaa the onkr that a mao to the fire or to the water will, at leaat in recy naay oaaos, be the order of the hondrcd court. Of any inununity olerfcs from nocular juriadictiaa or tempoml pmufthaaent thefw ia no word.
The author of the LegiM Henrici ta already borTawi0f fiueign canoniata and we caa not tell bow iar be ia atetiof oustuins that actually prevail in England. Ha says plainly enough that no aoonaation. be it for grave crime, be it br Ugbt ofleDce. is to be brought afcaiivit any ocdained okrk aare bcfa* his binhup*. Thia cert&iuly i* at vananot with oo* part «f Henry IL's claim, for Henry in^iatad thai (be Ant atap ia a oriminal canae should be taken in the kiog's eeuit; but it ioa nut touch the greater queatioa of doablu pantahmeot.
fordMiSld ^ '^ ^^"^ ^^'*'°^ general statements to recorded oaaaa We dfcteiM. can find veiy few. Host of them may be oalted ' state ihaK* and it is not to state trials that we can fcrost tor imparlsst appUoatiooa of medieval bw; but Domesday Book aaeaa l» tell of a clerk who was in peril of death or nvtilMiaii, fcr ha body was in the king's mercy*. I^anfrano had on dilBevHy advising tho Conqoerar that he might ^^^^^Ht' has Odo to ifflprisoommt aad djaharimn on ft rlam of aDd treaarm, though Odo plesdcH an immnnilj bin sscwlsr
1 Bdasid. n p. StT: MMs. Iitaol Oisftin. TkM «m ««
hi UMs *nM UM tai Ibis asiiasan I^Mm b smJ te s tfa* ovtat. IwHcteM ikfC
■ L« Baa. Pri& (7. 1 » : * !>• iUkk tsl sa ^iS«risaallalWi«|ttan«i(«isl.««fmynd»tii ■«■«! IseripsHsslkiM. MtkisU t* m\mm9iim'
* D. B.iLT: *QsldMBdM«MO0Mate ^SMwMq.,..
CH. n. § 5.] The Clergy. 451
jii8tice\ The king, so the great lawyer thought, might dis- tinguish between the Earl of Kent and the Bishop of Bayenz though these two persons happened to be one man. But the M] case is not decisive, for the punishment did iu>t touch life or member, and veiy probably Lan&anc oould have shown to the satis&ction of all canonists that th^ mrlike Odo had for- feited every clerical privilege by his scandalously military life'. Of the trial of Bishop William of Durham for a treacherous rebellion against Rufus a long and lively report has come down to us*. The bishop repeatedly and in strong, clear terms asserted his exemption from temporal justice : — he should be tried according to the sacred canons in a canonically ccmstituted court. It will not satisfy him that among his judges there are his own metropolitan and the archbishop of Canterbury and many bishops, for they are not clad in their episcopal vestments, they are mixed up with the lay nobles and are sitting under the king's presidency. lan&anc baffles and defeats him ; judg- ment is pronounced upon him and pronounced by a layman. Hugh of Beaumont The bishop appealed to Rome, but never prosecuted his appeal Here the sentence merely was that the bishop's fief was forfeited, and the severest canonist oould not deny that a purely feudal cause was within the competence of the king's court, nor perhaps could he have refuted Lanfranc's opinion that if, after the judgment of forfeiture, the bishop would not surrender his fief, he might lawfully be arrested*. Still less can be made of King Stephen's proceedings against Bishop Roger of Salisbury, his nephews and his son. The king took advantage of an affray between the men of the bishops and the men of Earl Alan ; he impleaded the bishops because their men had broken his peace, and by way of satisfaction demanded a surrender of their castles. This they refused. He then imprisoned them, maltreated them in gaol and went so far as to put a rope round the chancellor's neck ; he thus
' Freeman, Nonn. Conq. vt. 684.
■ Thnfl in Leg. Hen. 67, § 9 : ' Cum olerioo qni axorem habeat et firmun teneftt laicorum et rebua extrinsecis seoalftriter deditas est, eecnlariter osl diaceptandam.'
* Simeon of Dorham, i. 170. Freeman, William Bafna, i. 89, tells the story at length.
^ The biahop reliea leaa on the mere fact of hia being a bishop than on this ooapled with the fact that he has been and ia diapoaaeaaed. 'Spoliatna epiaooptu ante omnia debet restitai' ia the harden of his plea.
29—9
452 77^ Sorts and C<md%tums of Men, [bk. n.
tiamaurj
obUuDod iho dudnd fi9ttro«M. An occlwiwrtiMl omnMil ImU by his brother, tho legate, cited him ; tb« Immimity uf d«ifa mu strongly amorted ; the king's proceedings wftrs cmadenused. aod it is cvou said thut hit did paoance for them ; aba at oat b- time or another ho appealed tu Kotne ; but he kept the raiflia However, befbrs tJiia Stephen had made a raoaeoloaa noo : be had twom that justice and power oier penons and over all clerks and their pnaeMiuus sfconU to tho bUhopfl ; and by this oath be must, so wo think, be lakes to havH adniittLvl whatever claims of immunity could be fairly made in tho uamu of canon law*. Then coaceming the tnat- mvnt of rriminoits clerks in his reign we have a valnable which Juhii of Salisbury, writii^ in the Dame ol Th(H>lial(I. n'purUMJ to tho Pope. Oabert, an irnhdnannn, accused of having poimmed Archbt»hop Williun of Yurk. chaigo wu preferred by a clerk who tkad been in th« «ernev the dead prolate. It was made in tho pnoaeocu of King 8tepb«« and the l^ops at»d barons of England. The aceuaer was re«ly lo prove his OMa b^y (he hot iron or tht> boiling w»ter, by battAe* or by any other prooH Osbert relied un his doricai pririlage and refused to be judgod by laymen. Ptcdgco were given ea both Aides for the further prc«i*cution of the suit; ikmj wm given to the king, for tho king insisted that, baoaoaa of the atrocity of the cnint< and becaoae it was in hia pc names ifaol the AccuMtion bad b(.i<n made, the eaae waa within hia jm» diction. Wo and our brethren, says ThaohaM. pwlast^d. Ko* Stephen is dead and we have had the uimasl diflfenlly m getting Osbert out of King flenry's hands. W* Oidand hiai to pui|;e himaelf ; but he has appealed to yira*.
From Ruh iaoUted instances aa thoae it wookl be ia^naiU» to extract any de6nite results ftrr the hisUwy of taw ; bat, wbfla they are not tncon>asU>nl with H^nr^'i all^atioo abo«l lb* custonw of bis grandfathi-'r, they seem tu sbuw ibat tbe canonical trial, which Hmiy was wilHng to grant, had im«
Ihl^iil. n I WlU.)U*b.f.at: 0«va«OfeAi.L Iftl
• Siooaii CWHf 0/ StvpbMi aissaiM of ih* Milwt 0«u Bitvm, U. Ml: ' iMkrimfasraa ilaliiiiiiiii •< mm manm, tasliilsni •! wliilBli^ «l
1
• ua« «f Mm of Biiataiy H. OIM »•• Iti-
CH. n. § 5.]
The Qergy.
453
always been granted, even by Stephen'. As to the law that ,«e; prevailed in England before the Conquest little is known and little ouuld be profitably said in this context, for the Con- qaoror's ordinance must be treated as the beginning of a new era'. However, when King Alfred ordains that the man-slaying priest is to be unhallowed by his biabop and then delivered up from ibe church, unless his lord will compound for the wergild, I he is laying down one of the main principles for which Henry ^H contended'. If we would pursue the question behind the ^^ >'onnan Conquest, it is much rather the law of France than the law of England that should be studied. At least in this matter the Conqueror was an innovator, and the terms which he made with those who were to be the rulera of the English church were terms made by one who was not an Englishman with those who were not Englishmen. The early history of clerical privileges on the ctmtincut of Europe ia a long and a dark tale and one that we caii not pretend to tell Henry II.'s scheme was not unlike that which Justinian had sanctioned*. In Henry's day this resemblance was perceived by the learned and was much in hia favour : — he was offering the clergy what the Uges, the almost sacred leges, gave them'. But the practice which bod prevailed in Oaul was connected rather with the TheodosiAn Code than with Justinian's legislation, and under the Merovingian and Kariovingian kings the Prankish clergy I had not been able to obtain such liberal terms as Henry was ^H willing to concede at Clarendon*. During the age which saw
* AjiiHlm lud aonu diffleulty in preveotiag Henry I. from enforoing bj pecBniaiy Ooe* tlie eanona against marriod prli»M. Eadsur, Hist. Nor. 17»-A-6.
' Bed Stobba, Const. Hist. { S7; Schmld, Qloaur, a. ?. QtMlickti Uakowtr, Cansl. Hist 390.
' AUired, 91. Sm Belunid'f nol«. The LatiD rernon U importaal : 'Si qoia prestiytar homiOBio ooeidal, capiatar, et lotum undo sibj manaioaeni enicrat, at raordinet torn «pi«oopus, rt tunc sb eoclMta raddalor.' Bcor; ivMlinK lliia in Ihe twelfth oeDtor; tni«ht well uy tlwt bo wm falfilUag its spirit, iX not it* IfltMr.
* Nov. »S: Not. 13S. SI ( I ; RinsoliiiiB, Kirdunraobt. iv. 7U4-7. ■ Burnm CauMw (Matorials, iv. a02) : ' Kpltmupi tliMbuil it««unduiii ItgtM
tf<uU cIciriwH oaaootoratofl ouriae tra<leDdo>, et post poenam spiritnalem corpomlil«r punieiidoK.'
* Laningi Krobttnreolit, i. 80i, ii. M6: Binsehias, op. cU. iv. 649-44; Kiaal. GariohMtand des Clerus; Branoor, D. E. U. ii. 811-930. The atoir it alabnrati bsoaaaa it mnsi distiDgaisb between (1) bishops, (S) priasU and
(8) Iba i&Cmor otoig;.
^
the Pseado* Isidore and hia fellows at their worii, the agv vluck leads Dp to the poDtificat« of Gregory VII., the clerieal cUiin* wen; advancing. Wu think it very pOMibltt t)u( I^nfrABC woald have demanded and the Conqueror conceded Ui« gencnl prindple thai the trial of the aootued clerk intut takv plaa b- beforo the npiritual forotn; but we may well doubt wbatlMr more than thin would hare been conceded or even dwnaiwlwi whether kb much na (hia could always be obtained. Of wbl happfowd during Stephen '■ troubled reign we know too Itttlr, but the clerical claims wore vtill adTaneing, wen uUag aa aocuntt« ahapc in tfao DKntmm Oratiam, and it is not iiiilik«ly that Stephen wa> furccd to allow that only before a nptritoal court can a clerk be acouaed. thuugh from this mk h* Might hope to maintAtn norae exoeptions'. • MtBf (3) Thin leads oa bo our third quertioo: Waa BednM
.hw. compollod by the law of the church, as it waa underatood in Ihe year 1164, to reject tlenry's constitution f We nmat £»- tinguiah. Thcro were two paKiculars in the plan, to whieb a canonist bred in the school of Gratian waa cntitlul and boa&d to refuse his assent*. A deric in onjera ought not to bs aoensed of crime before Uie temporal judge, and th« orimkm of rayal officers to the chnroh'a court can be r^uded as an inaoll to the ohureh's joMioe. We cttt not ny that then were matten of detail ; Henry thoagfat then of grmv* anoe; bat they become ia<ngnilicant when ani beaids the question of double punishment. Now aa reganhi this vital point. Bcoket propounded a doctrine which, lo &r as ve an aware, had neither been tolerated by the stale nor by the church. He assorted that the stale must not the eriminouB clerk for that crime for wbi^ bo has afasa^r saflsrsd dcfimdation. In 1164 a good daal bad lately hmm written about this matter by the most renowned ""t^**-" of the sga We do not My that ther* wsa no mom km dsabt; there were ofaseore pssssges in the Omrttrnm which eoQl«<Bt ; bat we can say that two of the must £unoua of the canon law had cciiaiderad and orermlod the Ofioiea df
I
* Aww«^ to VUliun ot NvwtMUfh. I. IM. U «w tttet had b*Hi pOTfMratad hy <l«k» 4a>ias Bmwf*
mU iIm» a
Aala^
■ Thapvp*! T.74. Bavaa
Mietoni lodbiapoa to ^f
CH. tl. § 5.]
7Vi€ Clergy,
455
^ ^
St Thomas, while wo can name no writer who had majntained it. What is more, that opinion, though owing to his martjT- dum it was suffered to do iiuiueosui-able muchief in England by fostering crime and crippling justice, was never L-ousistently Q maintained by the canoni^tH; had it been maintained, no deposed or degraded clerk would ever have been handed over to the lay power as a heretic or a forger of {u&pitl bulls. As a general principle of law, Becket'tt theory about double punish* ment was condemned by Innocent lU. ; the decree which condemns it ia to this day part of the statute law of the catholic church ^
I
* Aa to tliiR mitter of double piiiiitihmeiit, Hcnry'ii cnnoniata based bb cue on two piOMJigM of the PaeDdo-Isidore whioh appear &ii oc. IS, 31, C, 11, qa. I. TImm way In effect that in certain oasea an offending clerk after beinR ilesradad b nvteff tmdtndHt, Dooh thit taean that be i« U> be deliv«red to tius lay eonrt forftutber ininishmeat? Hent^'e partjr Kaid Yea; Bwket's No, UarqUMtioo OQ^I lo be, nut what these wonls tneant for thu Ps«uilo Isidore, stiU leu what |1h7 OKaat for Arcadios and Huoorino, from wboni he atols them, bot what they meant for tho bout eedeuaatical lawreis of tlie middle of the twelfth etintury. In UM five great oanoniste have latvl; had or are jtut baring th^ir aa;, namalj, Gratian, Faneapalta, Holaud (now AkxaDdcr U.I.), HuOniu and Stepbanua "rotlMOBaaia. We can hardly bring ourselree lo doabl that Unitian (ant tha dleta on ec. S6. 90. 47. e. qu.) would bare agreed with Uenry'a oontdDtion. And tbfl mmu moat be nid of Paucapalea (Surama, od. Sobtdte, p. 78) aud Boland (f^uuima, ed. Thaiter, p. 2A), Then Uafiniis distiiuitly tmy» that the olerk ia to bo deifraili'd, 'et dimitt^tnr post boo iudici SMDndum It^es publicau ponieiuluii* (Samma. ed. Sotnlle, p. 374). Btapbaniu conniden th« opinion tbat Beeket adopt* and rcjKta U. Some lay that the degrodad clerk is not to b« aoenaad kafon the f^fm'fi*' judge, sinoe tbus ho will be tried twice for one offenoa. Olbm aay that tbera ia no oocasiou for a further aoouaation, bnt tbat be oan b« pontabed by tbe lecular jod^ witboat a aeouad trial. But the better opinion ia, Hya Stcpben, that the aecnlar judge abouM try bim ; tbe Aathentioaoi ( = NoT. 138. 21 8 I) mijiporta this doctrine (Samma, ad. Sohulta, p. Sl'i). An awHiynoua aolbnr of tbia period (Summa fioUndi, ad. Thaner, p. 393) boa no doobt tbat tbe oanon Uw aaootiona it. Sometbin; may depend on the date of the deoretal of Alexander III. which Htanda t» o. 4, X. 2, 1. In UUir timea tbe eanooiata admitted that there were \-anous mmm in which tbe degraded elerk waa to be deJtvered to the Iv po«tT for fuitlier panishmeot. S«e the gloaa on c. 16, C. 11, qo. 1 ; alao Founiier. Offloialit^t. 67-«. In 1333 Stephen LanctoD handed orar to tbe lay power a deacon whom be bad degraded for liirnint! Jew and tbe lay power burnt him ; aee L. Q. R. ii. \^&. Innoovut tH. (a 7, X. 5, 30) ordained that the forger* of papal lettrra ahould be handed over, and fbrther dadarad (o. 37, X. b, 40) that thia prooedor* waa tanetionad by the doabtful IHfTng— lo tba Deeratum. If anoe it b« allowad thai tbare ia here no breach of that fandatDdotal maxim whioh r»qairoa that a man be not puniabod twice for OBS offanov, than Uura ramaina no more than a quwtion about the relative gravity o( offenees :— in, for eiample, tbe forgery of a deerotal a worae crime than a mordcr? Laatly. ainoe Baokot waa willicg to add impriaanmant for liiJa
Ufey
456 The SorU and Condition» of Men, [bk. ix.
Curiouiiljr eDoagh Uut pomt in B«u/a tebeBM wbifib ia the eycii of th« oftaonist mait have aoeiiMd Um Uart ildhHftla»
wfu HaooRmfblly ilefi'ndwL As we havo soon, hii raooeaaort mainUiuod lh« rul« that clttrlu cau ba haled beibra Um king*! juatices and aeooaod of capital orimaa. On ihe oUmt ImwI, tJN not uiiciinonicA] principle which woald have Imwf^ht back Um digraded clurk lu hoar a i«ot«iic« in the ro/al eoort abaadoDML Tht* raault wai lamootabla.
One amall matt«r ronaint to be noticed. It bat oidii^ been luvnimifl hy Knf^lixh writ4<ni th&t the clei^ vara wQlinf to admit m ccrljuii inciuttre uf nxnpnx:ily, that Ibajr waM willing that their own livee aboald \» protected ooly bjr eoclnuoKtica] Iaw ntul cccliwufitirAl tribunals niu) that tlui b pro%'ed by the &to uf the archbiahup'ii munldvra. Nov it ia true that a cleric wan forbidden ,by the law of the church to go before a lay court and tHM>k a Jud^^cnt »f bliKid ; Imt to mj thin is uuu thing, lu say that the lay mardcivr of a clark it iKit to bt: puDtshcd by the lay prinoe is quite anotbtr IhiQg, and «t are not persuaded that any one ever mid it except wbon be wm in a logical stiait Aa we read the chroaidea, Hamy vaa blamed by his contemporariea for not having farooj^l Iba murdeien to justice and put them to dealb, t^mq^ ii «aa admittf^d by some that he was in a very awkward posstiflo : — he would be blamed if he let them escape, he wuold be UaoMd if he punished them, for this would be casting upon then tba burden nf a orimc nf which in common opinion he *****nplf «aa not guiltleas. Ho thought it best that they shoald go lo iW pope*. Afterwards he decUred that he had been uiMfala to
lo (Uvndstfam, protiM Uui both pvaMnMbi ou •port. It b pUs itel tiM tKtimitkt for wMoli kt
koa note list bmomI ammmty, far In Isfl— J It k hjboUi fuUm lo ItM uuMBi>wi^ thai bD Bschars lbs law fl< tb* cburek. Wi tUn not ipMk imBitMilty wi hsvt ItBVt dosbli AboBl the truth o( thi*
» wm. K«w1i. L in: *ttvi ul ■idmfasl prodin* «■« teataM aa nals ssitwsMwIoifa. tsnil anli tamm ««l «WD ia «(• piMiank, qoo4 ahu— alat —ilalo aoa otrobifiw iwqsl—JMM Hmntmt. I4«bM ^nnsl. Mslcrisli, fv. IM, «sy« HmM Umaj kMw ttek ha f— wUh tht ahaiah, mil fca peahani th» MaiiMMi ^ la liilalfciB wah*), a^yttmt
lllwUiHha. A^MitaaClte
4
CH. II. § 5.]
Thfd^rgif.
467
arrest them^ It would seem indeed that for a very few yean some English ecclesiastics were driven by the stress of Becket's |k44i>] logic to say that they would be content if the murderers of clerks were handed over to the uiild judgments of the church; or perhaps the true story is that this assertion was put into their mouths as a redxtctio ad absurdum of their demands by those who, though clerks and bishops, were the kiug'd clerks. At any ratt; very soon after the martyrdom Archbishop Richard, the marl,^T'8 successor, wrote to three of the martyr's most deadly foes, who were by this time three prelates of the English church and the three principal justices of King Henry's court, he wrote to Richard of Ilchcster, John of Oxford and Geoffrey Ridel, and told them tliat the doctrine which would deal thus tenderly with lay offenderH was a damnable opinion emd utterly al variance with canon law'. Repudiating the line of argument favoured by his sainted predecessor, ho assured his three sufiragans that a layman might be first excom- municated by the church and then hanged by the state without being punished twice for one offence*. Henry could now make terms; he had something to sell. In 1176 a papal legate concedtKl that he might punish clerks for breaches of the forest law, and in return the king granted that the lives of clerks ahouM be protected as well as, or even better than, the lives of laymen*.
(p. 1G3) thai tbej fioagbt the Pope wb«D it bad beooma dew thitt thty noic UU into tha haodH either of Uod or of moa.
' Oeat* fiuuici, i. 8i ; Horodvo, U. &$ : * niAlefiotores iUoa, qui . . . arahl- BfliaoopUBi oeeidflrnat habere non pot«rat.'
■ Ha aama to hava raterrad to oo. 39, 47, C. 38, qu. a ; o. 3, C 16, qo. A ; oa 19. aO. C. U. qo. 1.
■ TiiTBt, AD. 1176 (Eog. UUt. Hoc.], p. tri: 'la wcUna Ant-loniiii damnoaa oomibaa at omnioo dumuanila c«nBii«tiido iuvaluit ... Si Jtidavus aut tikiooram viUaaliitaa oociditur staliia aupplicio morUa oooisor addieitor. Bi ijuiii vero laoar* dotcm live olerioum mitioriB aal tuaiom statua oooidant, sola uooDimaatoationa ooDtenta, aot (at vena* lo(]aarj coDtempla, oocleaia materialis opem (;ladii non rtHiuirit.' This, tb« archtuahop argoex, ii diroot)j> oontrarjr to manjr oaaoua. Ha adda*. *Nm dicatur quod aliquia bia puatatur propter hoe ia idipaam, tkae ■niiD itCTBtam aat quod ab uoo inoipitar et ab altera oouommatai.' A ttaatar reply to B«cket'i l*lk ordooblo paniahinent could not be given.
* Dioeto, i. 410: 'Conccdo etiao) quod interf«lore« elflrioonim, qui aoa •dwler val praamaditati iuturfecariul, ooovfoti vel MaCeaai donun laalitiario nuo, ptacaefiie ppiMupo vel Has offioiali, |>raet«r euaaoalam laieomm Tiodiatani, nam et inoruui de barvdilatu qaa« mm oonliogit perpotttani itutiaeatit cz- handationein.' Tbii taeou to tbow that ao late aa 1171} tha ordioorj aectaDM
m maoalajer did not alirays involve disbanaiui.
I
458 The Sorts and Conditions of Men, [bk. O.
Aliens.
U.W.
When our oommoD Uw ubuqb from tbo middle tkgm both iui tetts of nationality and ite treairoont of olicnB are bvdljr mnA a» we might have expected them to be.
1. A« rcgardi the dofinition of the tvo gi«*t damm of men which have to bo distinguiBhod from each other, tfau main mle i« ver}' nimplo. The place o{ birth is olUimportoaU A child bom within any turritory thai ia subject to the king of England is a notund-born KubjiXTt of the ktog of Eaglaad. and i« DO alien in Rnf;land. On the other hand, with aDaw «in«p- tions, every child burn elsewhere is an alien, no matter tbo nationality of ita parenta.
The full extent of the finit half of thia rule wm Mttt«d m 1G08 by the famous decision in Calvin's case :~« child bom m Scotland after the moment when King Jamca the Sixth King James the First Is no alien in England*. Tb« was one which pleased the king and displeased tmaf of his BubjectH ; but oo other judgment could havn been gtTMB. tnUw many prmedenU derived fmni times when our kings had ]mrgt tarrituriea on the continent uf Kuropo had boen disngaidcd.
Tbe other half of the rule takes us haefc to tba nuddJe <f the fuurtetmth century. In 1343 a groat debate has «|««^ op among men of tlte law and othen as to th« naticonl chaiactw of the children bom to Kogliih panota in lonigB paita TW king seems to fear that this may touch aven tba meosHMB la the throne; the prelates and bnroiMrMMBre him; then aster has been any doubt that the king's ehiMnn wbanvnr boa U9 capable of inheriting from their ancestors Bat •■ n^goris other children they hesitate. It is agreed in parfiamoot thai children ' born in the king's senioe.* no matter the pUoo of their birth, can inherit; bat time is short, this dif&ctth nquires further disoossioa, and so it is also i^oid sutnte shall be made upon the present oocaseun'. 1S50 the debate is reaumed Ones man tbef* is a protest that as to the king's children then is not and hi been any doubt at all For the not, it is ordained by
I
* CWHS^IMM.?
•MflMsil
GB. u. § 6.] Aliens. 459
Ml] that 'children bom without the ligeance of the king, whose &therB and mothers at the time of their birth be and shall be at die fiuth and ligeance of the king of England, shall have and enjoy the same benefits and advantages to have and bear inheritance within the same ligeance as [certain children in whose &vour this rule was being retrospectively applied], so always that the mothers of such children do pass ^e sea l^ the licence and wills of their husbands^' Certain children already bom, were then declared capable of inheriting. The infer- ence which we shonld draw from the proceedings of 1S48 and 1350 is that the parliament thought that it was defining a somewhat debatable point in the common law, not that it was iotrodacing a new ml& Hiere is very littiie in the earlier Year Books that bears on this point: just enough, it may be, to safest that the usual forms of pleading threw difficnlties in the way of any one bom 'ont of the king's ligeance,' and that ' the king's ligeance ' was regarded as a geographical tract'.
2. An alien can not bold land in England. If the person DtaUttiM to whom land would descoad according to the oomm(»i rales of «u«l inheritance is an alien, it misses him and passes to some remoter Irinamnn of the dead man. If, on the other hand, an alien obtains land by gift, sale, lease or the like, the transaction is not a nullity, but the king can seize the land and keep it for himself. Late in the middle ages we hear of a narrow excep- tion : — an alien merchant may hire a house for the purposes of his trade* Also it is said that an alien may have goods and chattels; he may make a will of them, and, should he die intestate, they will be administered for the benefit of his kinsfolk. But it is very noticeable that according to Littleton an alien can bring no action whether real or personal, and when his great commentator explains this to mean that no alien can bring a real action, that no alien enemy can bring a personal action, but that an alien whose sovereign is in league with our own may bring personal actions, we can not but feel that this is a bold treatment of a carefully worded text*.
> Holla of Parliament, ii. 231 ; Statute 25 Edw. III. de natU ultra mare.
" Fitz. Abr. Aifll. pi. 8 (5 Edw. II.) ; T. B. 6 Edw. HI. t. 32 (Pawh. pi. 47) ; T. B. 8 Edw. III. f. 51 (Trin. pi. 38) ; Fitz. Abr. Briefe, pi. 677 {Mioh. 18 Edw. m.) ; compare Y. B. (ed. Pike), Mich. 13 Edw. HI. pp. 76-8.
■ So far as we are aware tbis appears first in T. B. S3 Hen. VI. t. 33 {Hil. pi. fi). For the extent of tbe exception in Coke's day tee Co. Lit. 3 b.
* Lit. iec. 198 ; Co. Lit. 129 b.
460 The Soii^ and Condition of Men. [bk. n.
Uon
NusnUw- S, NothiDf^ 8hc«t of * tUlate oui give (o an ftUeo all tb«^ righu uf u finiuml born subject; bat name of iheae omi b» eoofotred b; th« king's letters pntent niftking th« aliso a 'destuvn.' A deoiigen thtui made can hold land, and ho an aeqoiro land by gift, lale or tbc like, bnt h« can not inhenk and a child of hi» bom before the act of deoixation can not inht'rit frittn him'.
Now tliurc is room for aerioua duubt whether thtaa tvXm can be traced fiu* beyond the end of the thirteenth oentuiy. Very ancient law may regard every otmnf^r u an eo«aiy ; but it will lay far more atraai upon purity of blood than ao place of birth; it will be tribal rather than lerriioiial law. At a later time the friendly Htranger will have no stnoi kgal rights, no rights given him by the fulk-law, bul will Uva nadv the pmtectioD, the mund, of the ruler or uane other grail man. There is much iu the treatment received by Jeva and foreign nicrchonlB in the thirteenth century which anggeala Uut doctrine. But fcudaliflm ie oppoeed to tribaltim tad evcB lo nationalism : wo becume a lord's sobjeota by doing honag* lo him. and this dono, the nationality of our aneeaton and IW place of oar birth are inmgnificant The kw of foodal iuaiiact attempts for a while to swallow up all other law. la Kt^lud. however, a yet mightitir force than fendalann oune tuto play. A foreigner at the head of an army recniited from many Uade oonqnered England, became king of the Rnglirt, ondowad Ua followers with English landa. For a long time aftrr this then could W little law against aliens, there coald hardly ba aacb a thing an Eiigliiih nationality. Even had the king eUaed • right to seize the lands of aliims, he would noi haw c««RMd it Again, the territory within which. aooardiQg lo laMr ka«, snbjccte would bo burn to the king of Kttglaad. «m iMge. under Henry II. it beoame vait It coinprabendad Irekod ; at limes (to aay the least) it oooipreheodad Scodaod ; It <nfcifcwl to the Pyreneee. Then again, the law «ir«n of BnMfesa e dsgr acknowledged that a man might be a sabjoct •( Ike king and hold land in Fraxice and yet be a snbyect of tbe king and hold land in England. It was prepared lo case of a war butweon llie two kings : the amphihsows orost fight in penon for his Uege lord, but he must akw maA
) GfcLfi.ss,uta.
I
<] his due contingent of knighte to the opposite army'. In geuemlioQ after generation a Robert Bruce holds land on both tides of the Scottish border ; no one cares to remember on '%hich side of it he was bom*. Siniou dc Moutfort obtained the Leicester inheritance; where he was bom historians can l<not tell ns ; it matters not. He obtained the Ijeicester inherit- ice though his elder brother Almaric was living. Almaric adhering to the French king, the enemy of our king, and that might be a good reason for passing him by ; but iUmaric must solemnly resign his claim before Simon's can be enter- tained'.
It is, we believe, in the loss of Normandy that our law of^r*'"'' aliens finds its starting point. In the first place. John seized di^fcliag the lands of those of his noblen who adhered to Philip, and preferred to be French rather than English. This was a forfcitarc for treason. At the same time we see traces of that curious dislike of perpetual disherison which meets us in other quarters. Some of these lands, the terras Narmannoram, are iven to new tenants in fee simple, but subject to a proviso lat they may be taken away again if ever the Normans come Ibock to their allegiance'. In the second place, a permanent re- lation of waifarc is established between England and France. It endures from the beginning of John's reign until 1259 when Henry resigned his claim to Normandy. True that during this long half-century there was very little fighting and there were ly truces; but all along the English theory was that Henry ras by right Duke of Normandy and Count of Anjou, that the lldng of France was deforcing him of his inheritance, and that the day would come when the rebellious, or the invaded, prorinces would obey their lawful lord. Thus a man who is living in obedience to the king of Franco ia an enemy. If, says Iracton, such an one cliunis land against you, you may except unst him ; your exception huwever ia not ' peremptory,' it is 'dilatory'; it may lose its force when our king enjoys his own
■ BnetOD, r. 437 b. He mentioaa m exunplM the Bkrl Ifanhal wid ll(Iii9«nuD?] de FieiiDM.
' Muknf , Livm of the Braeea in Diet. NaL Diofpr,
■ Iniuli of TewkeebniT. Ill ; Uet. Pu. CbroD. U»j. iU. 394.
* Notebook, pi. 7&0. The lung give put of the UDda of Ralph of Tenker- I vUlc lo Be>M!t uid hU heirs ■ doneo earn reddidcrit heredibuB praodioU Badolfl ■;p*r roluntelvm nuKm vel pi-r pscnm,' There mtv tunny utbcr csamplee.
462 The ScrU and Condition of Men. [bk. IL
TlMklag
NgMfii. Whftt h« my i» fully borae out by lecutJed ( fn>m the esriy yean of Hoar)- 111 A clatrouit of Uad w nui by the nmpl« 'You are as alien.' but by tb« Gir nUUirato ' Yoa are within the power of tbe king of FmDM and t«tid«mt ia Fnuice, and it baa bean pmvidad by Um ooaaeU of our lonl iht' king that nu Kubjrct of tlw kipg U WraiiM M to W answered in England until Etif^tisbnienareaiiawerad in F^saovV Tbtjo Uattbew Paria IvUa us bow in 1S44 Saint Ltmia^ orjpnf that ' no nmn mar aerre two maatera,' inautad tbat all pwfai living in France muat make choice between faun and Haoiy. bow Henr>' retorted by seising the £ngU<(h lands of the fVioeb- men, eapacially of the Normann, withuut giriog tbvm any chance of choosing an Engliah uationality, and how Looia tinauri thix retort aM a breach of tmoa'.
Blnckfltone t« at no loaa for reaaon* why an alien sbovid not bold land in Eo^ftod, but wh<>a he b«« to cxpiaiD why tb* king abotdd mhio tbe Und which nliuua aa|uirei, w» feel that be ii> in difficulties. He fuggesia that thin brfeitare ' ia iatanM by way of puniahmeot for the alieo't pnmmptioa m atlimplMg to acquire any landed property*.' The tratb aaam to be thai in the ooane of the thirteenth century our kings aeqirnvd a habit of aeizing tbe huida of Normana and o4ber FtvoAtum. The Normana are traiton; the Frenchmen nn iw— iea JU thifl will be otherwise if a permanent peace ■ ever aalablidtod. But that permanent peace never oduea, and it h alwmyv difficult to obtiiio a n»iof»tioo of laoda which tbe king hm •eiaed. Fnuice i« tbe one fivetgn oountr}- that baa to ba «■!• aidcred in thii context; Ocmans and Italiana oom* ban aa mcfcbanta^ but they have no anoettnl elaiiM to lUf* «ad 4» not want English landa, while aa to 8oi<lawl. ovtaf to lh» Engliah king*R claim to an overkndahip or to aocDaolhar raMDO. BaUiolaand Bnioa boU bikd cm both akfaa of the boKte ai«ii a long war breaka ont between tbe two oountriaa. T» «a il ■nrtni that the king'* claim to seiM tbe landa of alteoa ia an
■ Itartaa. t MS. «ll b. It7 kk «M b. B* i* bM baffMi tf •«•* thmm b« yiBi. Bk pknm •MMS t* MMO, not M aaih 'vIh aa *«toa Vofaaadr. Aajda, «•. ara
■ VMM BMk, fL lUk tN«.
CH. n. § 6.] Aliens. 468
4«] exaggerated generalizatioQ of his claim to aeixe the lands of his French enemies. Such an exaggerated generalization of a royal right will not seem strange to those who hare studied the growth of the king's prerogatiTe6^
And BO too Bracton's 'dilatory exception' becomes P^^^^P!^'' emptory : ' Yon are an alien and your king is at war with oar daim to king' becomes *Tou are an alien.* An English nati<»i iBi^^ gradually forming iteel£ Already there is a cry of ' England for the English.' The king's foreign favouiitos are detested; glad enough would Englishmen be if he would bat seize their lands impartially and indiscriminately, and never endow another alien, be he Norman or Foitevin or Savoyard, with another inch of land. A trace of this feeling we may see when Bracton says that while the state of war endures the king cannot enable the alien to bring an action*. Probably in Edward L's day the law is, not merely that an alien enemy can not sue, but that an alien can not acquire land. A curious story oanw to us which is w<nthy of repetition. A tenant in chief of the crown died leaving two co-heiresses; King Henry granted the wardship and marriage of these two young ladies to Elyas de Babayn ; Elyas took one of them to wife and sent the other to be manied beyond the seas so that he might obtain the whole inheritanoa In 1290 her son, though bom abroad, claimed bis mother's share ; and claimed it successfully. The court defeated the scheme of the fraudulent guardian, but declared that its judg- ment was to form no precedent in favour of other aliens'. From Edward's day also we have letters of denization or of natumlization : the two would hardly as yet be distinguished. Though Elyas Daubeny was bom beyond the seas, the king holds him for a pure Englishman and wills that he shall be
1 See the Kpocrypbal Htatate, Praerogativa Regit, c. 14 (Statutes, i. p. 336). Here we seem to see the kiog's claim growing. First w* have an assertion of bis right to the lands of the MormanB, then we are told that this eztenda also to lands of certain persona bom beyond the sea, and we have Tarioos readings of the clause which defines this class of persons. One version says, 'those whose ancestors were in the faith of the King of France in the reign of King John.' Another, ' those who were not in the king's foith.' In this oontezt ■ foreigner ' and > subject of the King of France' are for practical pnrpoaes synonTmoas terms. In France also the droit ifaubaine bat slowly attains its foil stature ; Viollet, Histoire dn droit civil, p. 865.
» Bracton, f. 427 b.
> BoUs of Parliament, i. 44.
>4||1 7%e SorU and Gmditiong of Men, [bk.
n»i
held is mtk by nil m«o aod that ho umj mte in all ooort* ^J DolwithtiUuxliog tuay ' cxceptioa ' of alieiugQ*,
Th<} taw of Henry lll.'i reigii hftt to d«ftt m ■ mftUar iHct with two and only two groftt olaMOs of wSmoib. TW Ant^ ctmtiutt) uf Fnmchmcn who have clatnu tn EDglinh Uodi. Sooh claims nrr io Mtae OttMt ftncesttml. and thoBS, as «« ha** wco, call not be heard whflo there ia war or an abiding cmm» for war between Franco and England. In other oaaoi tbt olaiouuitfl are rocipiente of royal favotira ; they are the Ida^i half'brotfaen. the quoen'a onclos or the attendants of tlMH esalted personi; the king givet them lands aad« exrapA aft a n^vnlutiooary moment, thny hold their lands salety; mnm vt thttm wen; bam in provincoa which de iurt (aO BagUshaM* think) belong to the king; all of ihvm by doing liotiuig* Ut ifas king bocomt- hiii mrti, and thin niiutt be nataraliiatxai BBD^ghu The other greai class ooousto of alien merchants ; tbejr <fta oat come here to settle; they do not waul land; tbey •uald be well content we-re they permitted to lodge where they pleased.
Here ootnmon law has little to do with ibaae fan%n merehaots. Their biudnen takes them into the cfaaftsiri towna. The taw under which they lire is a meth of pririlcgw and of privileges that are hardly connvtent They tbomsslns will have charters derived from the king; but ihpy will bt living in boroughii which have charters derived from the king, and finit and foremost among the righti for which the long ia the right of oonfining the activity of ibrcign within narrow booiida The coaik* goes en wHli vaiylig forCones from oenlary to century. On the whole the khlg. tW prelates and baroiu support the nwrehants; they m Uufy lend mooey, they lower prices, they will pay fiir bi but often a weak king ronst give way and yield to the complaints of the burgbenL Already the Qreat Ofcartar pv^ vides that merchants may freely entor and dwell in aod kttss the realm ; but the mum Great Charter iwnflnnB all the liberties and caatoms of Loodoo and tlte oUHr bamagfc%
* Balh ol ParUuDUt I IM fonm tmti: Cotw. Co. LiL IS », dM tkmm tolanMlliiH«Hwttoii. • Iks king M^rMki io frtsrfw wirti* rnxi* Am^lm i ■ |[i lii •■• Ttav Mo ea« wtD aow-a-doT* ks mUU \j Ookm't imJTikm ti La. iiMit.' TlM wort arickMnjr w oai vfca li dam, H opfomi to mm wba ia as
■CH-U. §6.]
Aliens.
465
OOmiDOD
thus takoR away with one hand xvhat it gives with tho other'. The burghers have a very strong opinion that their liberties and customs are infringed if a foreign merchant dwells within their walla for more than forty days, if he hires a house, if he &il8 to take up his abode with some repousible burgher, if he sells in secret, if he sells to foreignenj, if he sells in detail. In Henry IIL's day the Htruggle is but beginning. It reaches the first of it-s many climaxes in IMO:^ when Edward I. grant?* the great Curia Mercatoria*. It will interest rather the economist than the lawyer, and rather the student of the fourteenth and fifteenth centuries than the student of earlier times'.
We may perhaps regard Coke's doctrine that the alien Tbe kllen friend is protected by ' personal actionis ' us ancient common law. In Edward I.'s day we even find that an Italian merchant ***■ lent in England, who us a Ghibelline had been ejected from house in Florence by victorious Guelfs, hoped to recover damages for this wrong in the courts of the king of England ; be failed, because ' it is not the custom of England that any one should answer in England for a treeposa committed in a foreign conntry in time of war or in any other manner*.' The Carta Meroatoria of Edward L, tho validity of which did not pass unquestioned, and statutes of Edward III. }>ecurcd to aliens the benefit of a jury composed wholly or in part of aliens*. In 1454 it is said that a foreign merchant may hire a house and defend his possession of it by an action of trespass'. If we suppose this to have been ancient common law, still it must have been law which had but little chance of asserting itself; the burghei-s have steadily fought against it and very a)mmonly have been successful^ Littleton's bold aMertiou that au alien can bring nu action real or penxmal may be less open to exception than his commentator sup- posed*, for in Littleton's day we hear that the proper court
* Chvter of ISld. e. IS, 41. ■ llDniBnte aUdhaUae, rot i. pi. ii. pp. 806-a. ' Hm ntarj la told %i Ungtb by Bduot, EngUaehs tUndelapoUtik, i
879-488.
* V\mo. Abbreir. p. 801. ' Cute Mcrofttori*, c S ; Liber Rubeai, ui. 1068 ; Btat. 37 Edw. UL itat. 3.
, -IH Bdw. III. c. 18.
T. B. S3 H«n. VI. f. 23 (HU. pi. S).
Incteed Xhtj b«d Utclj obuiasd two sutiit«ii decUriiifc that ali«n iuen)b«nt« ratul dwfll with EngUih bo«t« ud not elaewhere ; '< Ilea. IV. c. 9 ; 4 Hoo, V. e. S. " Sm tboTc. p. 450.
30
466 Hw Sorts and Condiiiom of Men, [bk. luj
for Aliens who hnre come here under tb« king'ti »fii eandnet' in the Court of Chancery ; ' they uv not bound to sne Meoidia^ to the law of the land, nor to nbido the triml by tw«lva mm and other ftolcmnititi* of the law of the land, bnt nhall Me in the Chancer}' nnd the ni«tter shall be d«t«naiiHd by Uiv law of nature '.' Thii« in a doctrine characteristic of th« ftfteqtuh rontuiy. Bttt all along it it m meo priviUged bj the kin^ rather than an men mibject to ordinar}' ta«*. thai tb« foreipi m«rcbant« ji^t a hearing. They can wldom make Umr war to the InngH juMticeti becaiute the courts of tb« town* in which they live claim an eioloaive oqgntianoe of aeliaiia fatoagkc against the boigMNV, and when tba foraignera do gH to ikm royat conrtii then* is a oootost betwaen pririlc|p) aad prirUai^. Probably tho king can baninh them at any time; his loyal iaigaota in tho borooghtt wonkl not be sorry if ba did, hr thasa aliaiui ara alwaya taking the bread oat of Iba ■oMbe ef honest folk. Then, at leaat in tho thirtcealfa osAftory. the ooiamon belief is that they are all iiHiir*'r9 and thaivlbie liTiag ia mortal Mn. We are told that in 1240 Henry Til, banriied Ike BO<allcd Canrsini; but that they only Uy hid for a time, the king conniving at their preeance. A little while aftetwaiA they are acquiring splendid palaooa in London ; no one dana attack them, for they call thouiHelren the Pope's mefchaota; now and again the king will irapriaon a lew, to the deligbt of their Jewish rivals; but be is half-bearaed. And so tbei* is little ooounoo taw for theee people".
Ought we to reokon merchanla of all kinds, Kngli^ and Jbfdgtt. as forming ooo of the soria or oonditioui of men kaosm to the law ? Hardly, thoagb as the historian of oar has diown, they nearly become for political purposia ana of mNIw of the realm'. Still they do not beoome thk
I
> V. B. U Bd«. Xn. 1 fl (ftsoh. pL «). Thk u tte III I I mm wt mm asiTlsr who *bn>k« balk.'
• Mai. ft. ir. 91 t. U$. 9m D^ OtMtit, a*. Cmn^. Tb» bmn lUriffcd ttom Okbaci tn Tnam. tram Cmarm la nii^inl. tnm * tBoOf «f GaniaL Ptrtt i{wika of ' CftiuiUi pnmpm
alnadj^ tht origlB «4 Um aamm wm Mikamrm. Md thai kl
C— !■!■ m* vialnlail lo Ibniis ■•■«. K^ Ik ««H
■wnins. PMii wmU htMy lw«« tmmA to yjmiito n h^ s |ihs m |M. ■!#
'4«Mi MiiaaNs. nl mtumim, M unlal.'
• fHahte, CoDit Him. | IM,
CH. ir. § 6.]
Aliens.
b-*M] private law ' merchanl»liip,' if we may make that word, seeiuft ^H too iudefioite aud also seems to have too few legal coDScqueacos ^™ to permit of our caltiDg it a status. We might illustrate this from modem law. Until lately no one but *a trader' could be made b&ukiiipt; still we should hardly say that in 18G0 ' tradership ' was a status. There was, so far as we are aware, but this one rule which marked off the ' trader ' fix>m the ' non- trader,' and a man became and ceased to be a trader without any solemnity by a process that we may call indefinite, though a court of law might have had to decide whether at a given moment that process had been accoinplished.
Before the end of the thirteenth century ' the law merchant * TheUw was already conceived aja a body of rule:^ which nlood apart from the common law'. But it seems to have been rather a special law for mercantile transactions than a special law for merclianta. It would we think have been found chiefly tu consist of what would now be called rules of evidence, rule^i about the proof to be given of sales and other contracts, rules as to the legal value of the tally and the God's penny ; for example, the law merchant took one view of the effect of an ' earaeat,' the common law another. Tbete special mercantile rulen were con- ceived as being specially known to merchants; in the courts of fain and markets the atisembled merchants declare the law ; in Edward U.'s day twelve merchants ai-e summoned from each of four cities to testify before the king's bench about a doubtful point in the ' lex mercatoria.' Also these rules are not conceived to be purely English law ; they are, we may say, a ius Pentium known to merchants throughout Christendom, and could we now recover them we might 6nd Kome which had their origin on the coasts of the Mediterranean. But this b Dot the place for their dbtcussion, for we take the law merchant ui be not so much the law for a claas of men as the law for a daas of tnnsaotioos.
I S^Mt Pl«u b MAOorUt CourU (8«ld. 8oe.), i. I8S.
30—2
468 The Sorts and Conditumd of Men, [bk, tL
§ 7. Tike JmmK
The Jew cftmo to EngUnd in tho wok* of ikm Jfv*^ Conqueror. Thnt no IxnutlitM had ever dwelt in this
before the ycur 1066 w« d«n> not Mty ; Vut if lo, they hftv*' no Lmoiw of thfir prcnenoe thftl are of any importanos to «a*«^ They weru broiif^ht hither from Normandy, brooyhi hither aa tho king* depewbuiU and (the word will haidly be too itraig) the king'a verfr. Id the fim hftlf of tho twoUUt oantof^ their condition won thus deacribed by the author of the L$^ Edwardi in a paasagv which auggeato that anong the rapUia to which the Norman bftnns Mpirad wa« the privilegs of keeping JewM of thifir own ; — * It in to be known that all Um Jews whereaoevor they bo in the rcKlm an? uoder the li<gc wnrdihip and protection of tho king ; nor may any of tlMm without the king's licence mibject hininclf to any rich Baa, fcr the Jew* and all that they have axv the king'n. and tbould My one detain theui or their chattels, the king may demand %btm ■a his own*.' Thin gives ns ooe of the two main ideas thai w law in later times has about the Jew : — be with atl that be hss beloogn to the kin;;. Brnrton pitA tht« saaM tbongbt in tkmf words: — 'The Jew can have nothing that is bis vn, 9m whaterer he scqnires. be aoqnirea, not lor himtiel£ hot for lbs king ; for the Jews live not fbr themaelves bat far otbet^ tad so they aoqtiiro not for themselves bat for othem*.* TW atb« main idea in one which will not seem almnge to as aAcr «bal we have said of villeinage. This nenrility in a relative in relation to all men, save the king, the Jvw is frvn. require some special treatment^ for if be is to ba bsr* and do any good, be must be allowed to do things tbat ice forbidden to Christians, notably to tnke interest on mnmiy hot And courts of justioe must pay some npad to his
■ nuwvelsMa of PstlWulliiiM 9t lb* Aml^««tA tliilialMl lilSinc (ram ih* cAw 'rf the Jtwiah CIuotWb <1(«S^ 4ectnaMita. WbUc«n44>i«B, ate. W» ttuD M*h» m l*f7iiiu'* DoBBttw, ToTvy'a AiiirlU JoiUla. tlaioa** ol tht i9w, nA Um i^ mU ptiMtd la Oola^ kasUidi Ktimfn sno^ 1^ aoil Imfumml mmmm ti •Ua JsodImi, Ths JW«« ot lagiifa Waf^amL
> u*bwMaaa,iiftiBhiiaiitni ifciiiii riiiiiiin.1.
* Ur« M». CoaT. «. W. • Bfaitaa, I. islk.
tf* as sU ]
CH. II. § 7.]
7%e Jews.
469
IMI for example, they must suffer him to swear upon the roll of
the law instead of the gospels; but in general, if his royal
master'^ interests are not concerned, he is to be dealt with
as though he were a Gentile. A third principle is accepted —
the JewH themselves would desire its acceptance — namely, that
■ when the interests of neither the king nor any other Christian
Hare concerned, the Jewtt may arrange their own affairs and
H Reltle their own disputes in their own way and by their own
Hebrew law'.
PFor about a centurj- nnd a half they were an important Ti»« element in hnglish history-. In spite of the kings exactions of the and of occasional outbursts of popular fury, they throve. They "*^
I
were wealthy ; they bore an enormous weight of taxation'. We may say that at times they ' financed' the kingdom ; there were few great noblea who had not at one time or another borrowed money from the Israelite, and paid the two pence per pound per week that was chargeil by way of usury. What the great folk did, the smaller folk did also. This money-lending business required some governmental regulation. In the first place, the king had a deep interest in it, for whatever was owed to a Jew was potentially owed to the king, and he would naturally desire to have ready at hand written evidence that he could use against his debtors. In the second place, this matter could hardly be left to the oitlinary Eoglish tribunals. For one thing, they would do but scant justice to the Jew, and therefore but scant justice to the king, who stood behind the Jew. Fur another thing, it is highly probable that the iJewifJi 'gage' was among Englishmen a novel and an alien institution, since it broke through the old law by giving rights in land to a creditor who did not take possession. In I194t therefore an edict was issued about these Jewish loans*. In every town in which the Jews lived, an office, as wo should say, was establij^hcd for the registration of their deeds. All loans and paymeuts of loans were to be made under the eye of
' Th«re is a good de&l of endanoe which teada to ibow that io th« (Int batt of the twelfth ovottuy the Jew's lagal poBition wu not so bad aa it afterward* became. The dootriD*, not withool tapporters in England, whieh tcaebM thai the dJaabOitivs of th« Jew ««i^ dtix, not to the mart tad that lie was a J«w, Itot to the tact, real or preaomed, thai be waa a usaror and tlierefore living in mortal ain, ■mdu to oi grooodlcM. Our law did not regard tinirr a* an; OfleDM In a Jew; on the oootrary, it enforoed his usurioa* oontneta (or liim.
■ OtOM. Pablicatione. u 195. * Hovedcn. iii. SGC.
rfdMbb
470 The SorU and Oondiiion$ of Men, [bk. n.
eert4m olBoen, «oino of them Chnstimiw, tora* of thi'm J«v«, and a copy or * port ' of every de«d wu to bv dapottlvd in an tp 'ark' or chest under ciffieUl citalody. A few ymn later a department of the roy»] exchequer— the exoheqoer cf the JewB — was organiied for tho snperrutoD of ihia bluiDi«l^ At ha bead ware a few * Jnetieee of the Jewei' We hear fcr a while that oome of these joatioea are tbemaelvea J«wk and all aJoDg JowH filli<d tfubordinato oSoas in the court; and thi* waa oeoeseary. for many uf thr documcnu that caroo befere it ware written in the Ucbrvw language. ThiM exchequer of tho Jews was, like the groat ezchotiuer, both a financial bunaa and a jndicinl tribunal. It managed all the king's tnuuawtiocw — and they were nuuy — with tho Jews, aaw lo the atae>inti of tallages, reliefe, eaeheata and forfeitores, and also aelsd judicially, not merely as between king and Jew, but aim m between king and Qentilc when, as often happened, the kiag hod for aome oauae or another * leiwd into hix hand ' the dtbCs due to on« of hiH Jowh by Christian debUtm. Also it beanl aad ifetermined all manner of dispnfaea between Jew and Qui^ian Soeb dispntea, it is true, generally related to feus of Booagr. bat the ooort seems to have aimed at aad aoqmred • oa»- petcnoe, and an exclninve oompetenoc. in all oauvs wbt^hrr eiril or chmuuil in which a Jew waa implioaiad, unloM it wu some merely civil caoae between two Hebtwwt whiali eoald be left to a purely Jewish tnbunaL For thia riaaiin wv am read nry little of the Jewa in the reoonk of any otJMr ooail and until such roUa of the Jcwiah exchequer aa exist ham bean publiabed, we shall be more ignorant than we ovglM to be*.
The system could not work well ; it iippieiiil both Jc«
.._j«IUm
to^mk '"^'l Englinhmva D«Mipiaed awl dtnUked the ooce rhnawi poapia would always have been in a aoetety of medieval
> OfOi^ PabUMtfeu. L IM.
■ Tlw mrliMi atul roll wai prisliid is Oak*l f-l Hmrj in. A b*t ot ihf oUmt rolU U flvv la Owaileailly «m« la wUtk itmt an oawmntA warn nili aad iDDM an prisM la tk» FImMocwi Attwililin mi t»
Book. Kiln to ihw aw gt^ea ta faMkaHoa*. ui. <■ X
Mu ««• lMar4 by ib» uniufclii ot Uh tvyal
i:iU««nit7 or Otiof4 dalawi plaa Msmu iav a
ihf dvte «o«rt iHUplM lOQAImkad hiM« Urn mi QmtB»t
whote U» iiiiiiiiiliaii el ihi Mihisia mm» to h
;H.n.§7.]
The Jews.
47^1
perhaps they would have been accused of crucifying chitdren and occaBionally maKsacred ; but they would not have been «o IM] persistently hated as they were, had they not been made tha engines of royal indigence. From the middle of the thirteenth century onwards the king was compelled to rob them of their
■priv'ileges, to forbid them to hold land, to forbid them even to tatce interest'. This last prohibition could nut be carried into effect; there waa little or nothing that the Jewa could profit- ably do if they were cut off from lending money. Their expulsion in 1290 looka like the only possible solution of a difficult problem.
I A few more words may be said about their legal condition for it was curious and may serve to illustrate some general principles of our medieval law. The Jew's relation to the king is very much like the ReUtiou of villein's relation to hia lord. In stiictness of law whatever the thekfag." ^Jew has belongij to the king; he 'acquires for the king' as ^flhe villein 'acquirer for his lord.' But, just as the lord rartly seizes his villein's chattels save fur certain reasons, so the king nipely seizee the Jew's chattels save for certain reasons ; until the seizure has been made, the villein or the Jew is treated as an owner and can behave as such. Again, as the loi-d is
Pvroni to be content with the customarj' services, huriots, znerchets and so forth of bis villeins and to tallagt; them only at regular intervals, so the king, unless he is in some
ItmuHual strait, will treat his Jews by customary' rules; for example he will nut exact from the heir by way of relief more than one-third of the inheritance*. The king respects the course and practice of his Scaccarium ludaeorum, the custom cf his Jewry, much as the lord respects the custom of the tcanor. Again, the king does justice upon and between his Jews, as the lord doe^ justice upon and between his villeins. The maxim that what is the Jew's is the king's is not infringed when the king after a judicial hearing decid(.>s that for a certain offence a certain Jew must pay a certain sum, and just so the lord keeps in the background his right to seize all the ^goods of every villein while his court is condemning this or
»
• Edict of 1371 fofbiddiue tbam to hold Umd. Poed. i. 199: probJbiUott of nsaiy. SUtute* of tba BmIid, L SSI. Sm kIjo the ordinuce printed by Otms in PdbUtttionft, i. 319,
* OroH, pQblioatioDi, i. IWt, 236.
472 77ie Sorts and Coruliiiotis of Men. [UL UJ
'mnOUf.
Uiat villom to a fine, a Ibrieitaro or an amaneciMnft. thtt king can gtmot pnnI«gog to his Jowa — Hauj IL ga»« them A chATtcr nod John a magnificent charter — witfaoot emancipating them or fundomrntally changing their legal ooa- dition*. Lastly the lord when hin own intertfU are boI al stake w content that hii villeins should wttle their own diflpula in their own wny iincItT the HujuTvinoa of ha atoirard, aod so the king is contoni that, tw U^cweeo Jem, Jewiab lav Bball bo administered by Jewish judgea.
The Ahal(>g>' may nor. bn perfect It ia bot too powib>»' that in hin d«'jUingM wiib hix Jom the king's rapacity wwm checked by few eonsideratiooi that were not prudrntial. and that the couim and practice of hia Jvwry eitraeuod fron Umoi the utmost that a far<inghted aelAshoess ooatd allow ttaalf to drnuuid. Thp villein was a Christian ; tbe cnsttim of tho manor hivl nucicnt roots and was cloaely akifi to tiie oomtmai lav. Thf rvUiion between king and Jew was new, al toaal is England, and it was in many rcapoeta unique; tbo Jew longed to a despicable race nd profeiaed a deleatabla criid- For all this, the analogy holdn good al the meal importaal point: the Jew, thoogb he is the king's serf, is a free nan in rvlation to all other pemona. Wc call him a serf. Wc hars no direct authority for so dMng. for we have seen no text in which he is called mtvum; but Braetoo baa gnoe veiy this word when he said that what the Jew aaqnirea hs for the king. Not only can the king mortgig* or Jewry, his Ittdaitmwn, as a whole', but tiieee ia one knowv case in which an individtuU Jew was fint given by the Idng to his son and afterwards enfranchised ; dommmvs tAer$ati waa the phrase used ; hereafter in considaration of an booaiwy rent of a pair uf gilt vpun be is to he frao frtim all lallagt^ aidn. loans and demands'.
The Jew's frvedoin in relatiott to all olkcn
4
• k«t. Owl Job. y. 91. Tbi t^ttw ct Smij XL naaM ie l> Omttm fnstad hj Biafaarl m« fmimm, i. »L
• la UW a«ai7 m. wnrta^tJ bit i««nr u> bii f. IM: MftL Pw. OhfOtt. lU^ V. «M. JLlUntfite MO Xd«ud. «bo KMJfnrf it br l«a ymm Is ivo W. W-9.
• twtj, p. m (U Bm. HL). U TnaiM tkt J«v Mm is dtatlanly stllsl «wvw,- TlsOrt. SkMn 4b *bM cHL pL IM
IWs
CH. ii.§7.]
The Jews.
473
I
master seems to have been amply protected by the exchequer, tim J^w So fer as we can see he found there a favourable audience, i^ [lai He could sue and be sued, accuse and be accused, and the u%^^ rules of procedure, which in the main were the ordinary English rules, were not unduly favourable to his Christian adventary. He ' made hla law * upon the books of &[osea ; he was not required to do battle; he might put himself u[X)ii II jurj' one half of which would consist of men of his own race and creed. Ho enjoyed a splendid monopoly ; he might frankly bargain for intoreat on his loans and charge about forty-three per cent, per annum*. Unless we are mistaken, no law pre- vented him from holding lands', though it is not until late in the day thai he appears as a landholder on a large scale, and when this happens it is a scandal that cries aloud for removal He had a house, sometimes a Rne house, in the town. His f:boioe of a dwelling place seems to have been confined to those towns which had ' arks,' or as wc might say ' loan registries * ; he would hai-dly have wished to live elsewhere; but there were boroughs which had obtained royal charters enabling them to exclude him'. Many lands were gaged to him, but, though we do not fully understand the nature of these gages. it seems to us that the Hebrew creditor seldom took, or at all events kept, possession of the land, and that his gage was cot conceived as giving him any place in the scale of lords and tenants. However, late in Henrj* Ill's reign it became apparent that the Jews were holding lauds in fee and that they had militar}' tenants below them ; they were claiming the wardships and marriages of infent heirs, and were even dainng to present Christian clerks to Christian bishops for induction into Christian churches*. This was not to be borne. In 1271 the edict went forth that they were no longer to hold fn*e tenement, though they might keep their own hones'. Some galling restrictions had already been laid upon them at the instance of the church ; they were to fast in l^eut ; they were to wear distinctive badges upon their garments ; they were not
■ Grow, FublicstioDS, J. 307.
* Bnotoo. r. 13. In feoflmenU mide bj ocrtain ooQTents it U eommoit to And ft irtipulfttioii tlmt the IukI is not to be iK>ld or gi^ lo Jews.
* OroM, PubliMtluQfi, i. 190.
* 0«sta Abbfttam, i. 401 ; Liber de Antiquif I^ettiboB, 394.
* Fted. 1.160.
474 Thf Sorts and Conditions of Xftn. [BR.
to ko«p ChrUtiAH «ttrruiU or biive lot^rcoune witli Chritlia» womoB; they were not to enter tfao chnrchut; tbej were t» oequire no more achooU or tytrngogam Uuui tluj ahmdj
Am betvrocJi Juw and Jew, if thi; king's intereaU were in o« ^< wiM ooncexned, Jewiih tribnnalfl adminiaterod tbe Jewi«h Uw (if» ludaioa). QiiestioUH of inheritance, for eiuunple. rlo do! ooow before tht^ urdiuary En}[liNh tribunaU, and come bat nmly and incidentally bcfort: the exchequer uf the Ji>wa. Whoa Hebrew dealt with Hebrew the docuracint, tb« altstar {ImI, Jtomcw, Fr. estorrfl) which recorded the treiuMtaoo wia writt«D in the Hebruw language and the partta« to it. UMteed of affixing their seals (eomo Jews had sealsX eigned their aaiiMi'. Often such a doooment was «xecnt«d in tbe ptasenee of efieal witneasei and was sanctioned by an oath upon the W«. The predee nature of the tribunals which did jostioo betw— Jews we can not here diivruMi; it is a ntatler for (Koee who en learned in Hebrew antiquitiea; but to all appf«raDOD tlMy not mere boards of arbitrators but courts with coendve WbeUier they aspired to execute their decrees by phyMoal we do not know; but apparently, like our own unftleeiaotinel courts, they ooukl wield the weapon of eimwrniiiucatioB. ead this spiritual sword may have been snfiioteat for tbe ocds^ plistunent of nil their purpows*. To Uenliloa ai ail eveole il eeemed that the Jews hod 'priesu' and *biaho|is' {p\mkjtm% taotrdotmf ^pisoopi) who did jostioe nnoBg thei& Onr IIh appointment of tbeee ofBoece the Uog ewreiesd a eeotiel. Ml xxity unlike ttiat which he exercised over the eppoinfteBt ef English bithope*. The Jt-w^ of each town, or of eeeb ^fiiefcfHi and sgain all the Jews of England, eocurtituted a eoosiiiMHi with which he oould deal as a iiingle wbule. He cuuld impooe a las or a penalty upon it. and leave it i') settle m between i>i various members the final inmdenne of the impoaL
I AsaOMlJaa ol ShMBraA at • iMit ' taHi k«a paMMwd ky M. Dl PiiMlsrttn— ■ volU. As to lbs war Mil M p. asi. rim$.p,ta^0mm WMnwIai of s sial tsMalsl to ashartw t4 ItoCBMiH;
• IM ihs Toltttot ef itetoMk. W^ «. 10*. SM. Itt. S7«, > tLmtj XXL y«niii ifca * wmiw of ib* k« * i
ttoMHaaaiatioam' ickkua iboM who viU ao( paj *itr
fentfsa* to iha Loadoa mbmimx i To««7, p. IfT ; Jioito. faMtoattoas. i.
• In IKT Bmn Ul. flifow* 'UriMp' E^ sal 4«lsn4 IkSC f fatttw tba J«wi ml|fat ri>ct thito aw metf^ttrt: lliiBa.ftsslkl.Sll.
.. ri. § 7.]
The Jews.
475
Uw.
CO
^c be
trc^ recor
Kact vei tar.
Whether the sojourn uf the Jews ia England left any J"^^^ permanent marks upon the body of our law is a question that u.i Eugiiah we dare not debate, though we may raise it We can hanily ^uppoM) that from the Lex ludaica, the Hebrew law which the lews administered among themselves, anything passed into the "code of the contemptuous Chn'stiau. But that the iuter- itionaJ Lex ludaismi^ peiishcd in 1290 without leaving any icmorial of itself is by no means so certain. We should not be sarpriaed to Icam that the practice of preserving in the treasury one ' part ' (the pes or ' foot *) of every indenture which recorded a fine levied iu the royal court, was suggested by the iticc of depositing in an official ark one copy of everj' bond Eiven to a Jew. Both practices can be traced to the same sar, the year 1194'. Agalu, very early in Edward L'b day we hear that ' according to the os^e and statutes of the king's Jewry, his Jews ought to have one moiety of the lands, rents and chattels of then- Christiau debtors uutil they shall have received their debts'.' A few years afterwards, and just before the banishment of the Jews, a famous Htatute gave a Christian creditor a very similar remedy, the well-known writ of et^^t, which therefore may be a lasting monument of the Hebrew money-lender*. But at any rate we ought to remember th*? Jew when we make uur estimate uf the thirteenth ccntuf}*. LondoftTicrs arc borrowing large sums, and the enormous rate of interest that they contract to pay, if it shows the badness of the security that is offered for the loan — the Jew holds his all ^at the king's will and usury does not run against infants ; the ^■Kurity therefore is very bad — shows also the intensity of the ^Bemand for money. 3iany an aocicnt tic between men, — the ^Be uf kinship, the tie of homage — is being dissolved or trans- muted by the touch of Jewish gold ; land is being brought to mfirket and feudal rights are being capitalized.
r> T, B. 83-a Ed«r. I. p. SW : • Ut; de Jynry^.*
' In onr c}u^t«r on 0«TiCTship and PoMesNon we shjiU tnioc th« praaer- vMtion of tbo ptitetjlnium to UiU point. 8<w vol. ii. p. 97-
• aiAdox, Exuheqaer, i. 347 froiu a toll ot 8-4 Bdv. L ; StetotM of the Bulm, i. 331.
* atat. Wftit. U. IS Edw. L o. IS.
476 The Sorts atid Condttioyis of Mm. [bk.
8. ChttJaws and Convicted Felon*.
DCK KM
« wotr^H
Oatkvrr. Wc must now fj^anoo brirHy mt. certaio cImot of tuva w for thi'ir oRbnoes or iheir eoiitumaey «r« deprived of tuciM thosa rights which their 'lawful* neighbour! eqjoj. thum ftc reckon ontlmWB, oonviot«d fbloos iwd txcotmiHiiiiiBl— Thf history of outUmj can be belt«r told ia wnimuw with tho criminal law thna in ihc proaent ooat«xl Outlawry is the last wMpon of aodeDt law, but one that it matt oftco oae. Aa haa been well said, it ia the sentenoe of death pn^ nuunccd by a oommunitj which has no poUcr eooatafatea or profiBasioDa] hangmen'. To punme the outlaw and ki>oek Um 00 the head am though he were a wild bout ix the right duty of every law-abiding man. 'Let hira bear th« wotr head':' this phrase is in use oron in the thirteenth ocntorf. Bnt aa the power of the state and the number of ita increaae, ontlawty Ioeo8 eome of il« gravity ; instead of being a substantive punishment, it becomee mere* criminal proccsa,' a means of compelling accnsed peraoos to ■tand thcNV ttiaL Jott in ItmcU'DH day it is undergoing a ftutlnr dtgndati«& In one place he says that reoourao can be had to outlawry only when there i« an aeeoaation of ooe U thorn Crimea whxk are puiuihed by loss of life or member. Thk, no doubtk is the old doctrine, and his whole expo«tioo of tba eSsefes af outlawry is in harmony with it. At a bter time he has gitaad his text: — there may. he says, be outlawry even «be« the offenoe ia do felony but a mete li'ffwsyiimsi'u, pnirided that tl be a breach of the king'a peace* This is importaoL la rmum of time our law is going to know two kinds of ootlawry; with allusiou to the analogous process of «icommaniaati«« wv mighl call thvm the greater and the leaa. A man outlawed <■ a charge of felony ia as one attainted of tlMt Mooy ; vlnle if ootlawed fur a misdemeanour or in a dril action (for ia iW oouMof the fourteenth century the prooemof ootUwiy
' Bnuuwr. D. H. U. L ITB.
* hneUm. C tttti: IMotI PkM of kW OBn,vLI7: T. B. t*-! p.M7.
» Bwnna. L tSTk n* |--rir 'Psste iMm i «^ ftmt
fMBtiliM turn hxnuM * la s sufgfaMl ftsM. Bm llola 9mk. fL M, «k lS67i Co.LU.19Sk
CH, II. § 8.] Outlaws mul Convictefl Fdons. 477
^.460] rapidly through mtixiy of the personal actioDH) he is in no Kuch cWl plight. But this distinction belongs to the future. The learning of outlawr}' an it ia in Bmcton ift still the learning of
E outlawry for felony. The outlaw's life is insecure. lu Bracton's day he ought not CoimBUw| to be Hlaiii uule&i he ik re»ititing capture or fleeing from it ; but muUhw. it is every one's duty to capture hiui. And out in OlouccHter- shire and Herefordshire on the Welsh march custom allows that he may be killed at any time'. If knowing his condition we harbour him, thin is n capital crime*. He is a ' lawles-a man' and a ' friendlese man'.' Of everj- proprietary, poseessoiy, contractual right he irt deprived ; the king is entitled to lay waste his land and it then escheats to his lord ; he forfeits hts chattelti to the king ; every contract, every bond of homage or fealty in which he ia engaged is dissolved. If the king inlaws him, he comeB back int^) the world like a new-boru babe, <(aasi modo genitns, capable indeed of acquiring new rights, but unable to assert any of those that he had before his outlawry. An annihilation of the outlawry would have a different opera- tion, but the inlawed outlaw is not the old person restored to legal life; he is a new peraon*. The law of forfeiture luid escheat for felony is taking an extremely severe form. It is held that the conviction or the outlawry 'relates back ' to Che moment at which the crime was perpetrated, so that acts done by the felon in the interim are avoided*. It is held that the felon's blood is corrupt and that a child boru to him after the felony ia incapable of inheriting, not merely from him, but from any one else". Though we speak but briefly of outlawrry, we
* Braotoo. f. ISSb. The printed book hu Hertford itutead of Uertford. The ciUtioo [rom tb« Digest ihoiild be. Dlj;. w) leijeni CorneHun dn Sioarliii et Taoefieis (<8. 8) 8 | 6, 'Trau«lugftj« licet ubicunqac inveoli ru«riut tjUMi liosles InlerflBeM.' kn to killing an ontUw, iiee BriUon, i. 51. Sn Utc u 1838 it «u Ufoed ihftt ft plet of the dead tnaa'A oatUwry wan a Mufflcivnt annrcr to au iodiotnwDt for slsjins Itim : 3 Lib. Asb. pi. 3. f . 3 ; T. B. 3 Rdw. [II. f. fi (Hil. pL IT): ftnd it woutd even sewn that tlic saine auertioD was iiuhIo in 1953; ?7 Lib. An. p. 41. 1. 187.
* Broctoa. f. 138 b. ' Bntctoo. f. 18$, 138 b. ' Bmcton. I 189 b.
* Etracton, f. 80 b. citing D\g. do donatiouibnA (31). ."i) 15 : * Poet eontruiom eapitale eriiucn dnnationeit imUe nun valenl ex oonstitutioDe divonun Sereri at AatoainI, *i oondemnatio aecota rit.* See aUo Fleta, p. 43.
* Braeton, f. 180 : * oum eil praeenitaa talis ex tMtieolo et MDgoiae felooia.' Plata, p. 48.
478 The Sort* and Oonditumt qf Meti. [i
AT* flpedung of ao nrity; the number of men outlawed at Hi' ef«i7 eyre U very lar;ge ; ten men an oaUawed fiv ooa who m hsngod.
§ 9. Eaawnmuniccttes.
CloHoIy alliotl t4i oiiilawiy in excommunication ; it i* in lact an eccifwtaitifal ontlawiy', and, like tempond ouUawij, tbongli onoe it was tbe lav'ii last and roost terrible weapea agftiaM tW obitiaate offender, it is now regarded at a nonaal pnoaw Ibr oompelling the appuanuice in court of thoM who are accusvd. Indeed a« regards tbe Uuty, dnoe tbe spiritUAl ooorfes ean toi direct a seismv of body. lands or goods, those ooorti iiiif. if mere citationn (ail to produce an «ppe«nuioo. at ODoe haraj reooarae to their last weapon. Tben, as ordainad by WillinM tbe OonquHrar, the lay power Dome* to Uietr aid*. If Uw: vJccommnnicaU) doea not seek absohition within forty day* (lhis| period weinfl to bo fixed already in the tirvldh cvntary*). tbe ordinnry will HJ^ptify this to the king; a writ for the anvM of thu ufTttnder will be inmed, and ho will be kept in pnaoo natfl he makes his stibmiasion*.
The exeomniiiikicfite is, mys Bincton, a spiritttal leper; haj can do no valid nrt in tbe biw ; he eaa oot me ; hot ha caa be MOod. for he mtwt not tnkp ndvantogv by his own wrong-doing; one may not pmy with him, talk with him, rat with kun*' Tho clergy from time to time complain that this preeapt is not well obeerrod and that tho king is backward in the amsl of excommunicatoi*. In ipite of tho oondemnatMa which hsd fiUlon on the Co&Mtitationa of Clarendon, our kij^ smoi W have stedfwtly omcrted the Conqnuror^s principle that their teuiuitB in chief, at all evenU their miniitetv, bailiffs, wenr not to be exoomnmnicated withoat roynl Edwaid I. compelled Arehfauhop Ptodcham to vithdmv a gMMtal sentence proaoaoced against tboae ministets who
> JUMr. vtfi. «1 Tb* uee«««ataato k 'H*!*! mllsv.* •MnaM.f1iiilii.p.aST; Li«. B«». Ceat 1, !••
• U«. Bd». Ooiit C
«Bnaloa,f.4Mb,4ni li|. Bnt. Orif. 1 tfc •BMIaa, t 4M k: ' Kiwaiasluilii «te IsliiMilliii as^ mbm
timaa.' KoteB«oh,|iLtSti Drlltea,L SB: ULMalN.
• GnnMlaAo(tW7,Mi4.rtr. 0)nn. IU}.ti.lMi ioliaw^ gsawM. It m.
CH. II. § 9.]
Excomm-unicateg.
479
h4esj rcmifis in their duty ofcapturiug excommunicates* and in 1293 the Archbishop of York made fine with four thousand marks for having excommunicated the Bi»hop of Durham ; he had failed to take the distinction between what was done by hia sufiragan bishop and what wa!j done by a palatine oa^l^ A practice of the lay courts yet more objectionable to the clergy wan that of directing u bishop to absolve an excommunicate.
kThey did not treat the spiritual courts as inferior courts, they did not entertain appeals or evoke causes ; but still they had to protect their own jurisdiction. A suit would be instituted in the bishop's court abont some matter, which, according to the thinking of the king's justices, did not He within its sphere ; to those justices the defendant would come for a writ of pro- hibition ; meanwhile he would be excommtmicated, and then the plaiutitf and the eoclesiaatical judges, when called before
^^ the royal court, would refuse to answer one who was outside ^Hthe pale of the church. In such a case it is not an unheard of
' thing that the lay court whould command the bishop to pro- nounce an absolution* ; but much the same end may be attained if the lay court simply ignores a sentence which in ita opinion has been obtained in fraud of its rights*. On the whole, however, before the end of Henr)' III.'s reign the two sets of courts are working together harmonioualy. There is always a brisk border warfare Himmering betwot^n them, in which, as is natural, the tribnnal which has the direct command of phyhicnl force is apt to gain the victory; but this is no longer a world- shaking conflict between church and state, it is rather a struggle botweou two professional classes, each of which likes pcvwer and business and has no dislike for feea and perquisites. In the eyes of the secular lawyers the baronies of the bishojis are a pledge that the censures of the church will not be used so as to deprive the king of his rights^ Even an appeal to Rome
> JobDMU, Canous, U. 358 ; Bolls of r&rlinment, i. 3M,
* BoUs of Parliuiient, i. 103. Tii lt»4 Aralibinliop OtoSnj ol Tork wm in I'tnubl** for liftvin^ contemned tha kittft by exoommuDicatiag one of hit
siiiiiit«n : RoUa of tbe King's Court {Pipn Roll 8oc.) vol. i. p. xiil.
* Note Dook, pL 670. See Ann. Burton. 256. 413 ; MaI. Pot. Chron. U«i. vt SM; Articoli Cleri. d. 7 (Statutes i. ITS).
* BnotOQ. r. i08, 430 b. 437 : Co. Lit. 184 a.
* BnMiton, f, 437: 'Kan(|Q4m capi«tur aliquiii ad mondatntn ladlcnm ddle- gatomu vel arehidiaoonorain t»1 altcriua iodicu inferioru. quia rti in iplMopi* oOMtioium habet propter baroniam.'
480 2A* Sorts ««/ Condili^ns <if J/rti. [bk.
ifl duly rMpecftctI by tlw Uy power— more Umui duly iwpwtod, iom« EogUfth churchmGD tnmy have thought, for tberebj lh« wealthy excommunicat« U often euaUed to paeipune to aa indcBnitc. (late the evil day wheii ho intul go to priaoo or imbinil htnifielf'. [XieoBMo- Wo havo compared exoommanicatioa Ui outlawry ; but, uk I dffl l«ut in thJM world, the ooni*e<{ucooca of the temporaJ w«ff« kg more Mvere than ibono of the spiritual ban. Hw caeooi* munioUe forfeitod none of thoec* righu which were MDetaeoed by lay tribonalii. He became incapable of Biwiilii^ Uw» by McXion ; but the ' excoption of exoommuniealioo * wae only a dO^ tor)', not a peromptoiy, plea, and the plaintiff might go on with hi!4 action «o eoon as he bad made Ww peace with the churdi'. Deapitti thvir arloplion of the bold phnwe 'Thtf nTfnmmnnirmhr con do DO act in law,' our secular jndgea menu to have tboog^l that they had given mfiicient aid to the t^Hritnal poww wImm tht'jr had shut their earn to the Jummta ror of the chardi'a outlaw'. They stopped ihort of declaring that he ooaM noi aoqnir« rights or dispoee of hi* property, bat tbote. who kiww* in^ of his condittou hod dealiDgi with him, were guilty if an offence which the ooeleaiaiitioa] oourta might panieh if tfae| pleaned.
§ 10. LfperSf Lunatics ami Idiou.
Tbtitfiv. This wtnild not be the place in which to ipatk length of the legal disability of thaw who are mentol or bodily HJneaie ; but a fbw words shonU ba Mid ef lepen and of idiota. Braetoa eompares the exoiNBaiaiiiaBla la the leper, and the leper ia excommunicate in a very nail mam. Ho is ptit outxidc the community of mankind; tlie plaoe hr him is the laxar house*. Not only is he inaapabla of mta^ aad of making gifU or contracls. but he is woo mrtpnHt at m* heriting. He still irmains the owner of what waa bis his ' ■^regation.' hot he eau not iubarit*.
•BnBlaa.tlMb; B«. Bivt. Orfc L 6>.
• Brsstot. f. 4M b; Ul MS. 901.
• Unman, t«Mb| 'ftunniin saim wami tsMrtW
• Tht OsBit BsMo (Bd4. Bos.), fu IM. ■ Bnetoa, t If. 411 1 MmI ClwH Ftes, pL IJT; Xsis
for fMBlhd sad staUsr rnesk kw, s» Tlalki. maabs *i
GH. u. § 10.] Lept^rSt LujicUicii atid Idioijs,
481
■ 4M] AiDoug the insane our law draw» a marked distinction; itTb«idtoL Beparates the lunatic from the idiot or bom foul'. About the latter there is a curious story to be told. In Edward I.'s day the king claims u wardship of the lands of all natural fools, no mattor of whom such lands umy be huldcu. He is morally bi»und to maintoiu the idiots out of the income of their estates, but still iho right is a profitable right analogous to the lord's wardship of an infant tenant. But there is reason to believe that this is a new right, or that at any rate there has been a struggle for it between the lords and the king. If idiocy be treated as similar to in&ncy, this analogy is iu favour of the lords; at all events if the idiot be a military tenant, feudal priooiples would give the custody of hih land not to the king, but to the lord, while of socage land some kinsman of the fool might naturally claim a wardship. Edward I. was told that by the law of Scotland the lord had the wardship of an idiot's land^ But in England a different rule had been established, and this, as we think, by some statute or ordinance made in the last days of Henry III. If wo have rightly read an obscure tale. Robert Walerand, a minister, justice and favourite of the king, procured this oniinance foreseeing that he must leave an idiot as his heir and desirous that his land should fall rather into the king's hand than into the hands of his lords'. The king's right is distinctly stated in the document known as Praerogaiiva Regis, which we believe to come from the early years of Edward I. The t^amc document seems tu be the oldest that gives us any clear information about a wardship of Tlw lunatics. The king is to pmvide that the lunatic and his family are properly maintained out of the income of his estate. and the residue is to be handed over to him upon his restora- UoD to sanity, or, should he die withuut having recovered his wits, is to be admiuisteitd by the urdiuary for the good of his wui; but the king is to take nothing to his own use*. Once more we see prerogatival rights growing, while feudal claims fall into the backgntund ; and in the case of lunacy we see a guardianship, a mund, which is not profitable to the guardian, and this at present is a novel and a noteworthy thing*.
1 lUukstuoe, CoDiu. i. 802.
* MMBonnda de pAtLiauif-ulo, HA Edw. I. (BolU Ser.), p. 338. f> Uullnnd. I'rurogEtivft lUn'w, K. H. 11. vi. 369.
* dMio^Tm lt<«u. 0. 11, 13 (StAtatM, i. 3%). " Sm ■bar*, p. 823.
31
lunatic.
482 The Sort* atid QmditWM qf Men. [bk.
§ II. yy&men.
povtim of
ta
mtc
Wt) hnvc bcrn rapidly Himinvihing the number of ' nnraMl penftiUK,* of frtH) and lawful mtu. W'v hmvv yal to ap—k of hftir the itdmbiiaiitn of EngUod. No toxfr-writer. no sUlalci,! over mokes tay genemi it&teinenl as to the position of vocmb*. This is treiktod «• obvvmH, and wv belii^ve that it can \k lieftasd with wimo acrumcy by one brief phrai*c : — privat« law with km eioqitions pats women oo a par with »eo; pabbc law gins a woman no rights and exaris from bar bo dntiea, «n thai of paying tnx«s and pttrforming Huoh serriosK as can be perlbrmed by deputy.
A very different doctrine is soggestad by una aueieot ral& A woman can never be oatlawad, lor a woman b nerer io law. We may well suppcm> this to come from a veiy rookoie Uma. But in Bmcton'fl day it means nothing, for a wocmb, Uio«gk she can not be outbiwcd, can bo * waived,' dodared a *waiC and ' waiver' seems to have all the efleela of outlawry'. Womsft aro DOW ' in ' all private law* and an Um aquali (rf bmb. TW law of inheritanco, it is tnie. shows a pnfiernM fcr ^aUa ovw fi'malcs; but not a very strong preference, lor a daagfater wiQ i^xclude a brother of the dead uaa^aod t^ law of waidaUp tuid marriage, though it makes aoma dHfereaoe b<<w»eii ih« roah; and tliu fiMnala ward, is almont equally seven Cor kotk But the womno can hold land, even by military tenim. oaa own dtattela, make a wilt, make a cuulract. can soe and W sued. She sues and is vaed in penon without the inl of a guardian ; ahc can plead with her own vuica if she indeed— «od this is a stfoog eoae — a marriod wooiaa will ttmes appear aa her hiuAaiid'a attomeT". A widow v3l vtkm be the gnanlian of her own chiklnm ; a lady will oAaa be the goardiao of the obildron of her teoanta
> BrutoB. t S; *Ki atsisal tailni i « dtlwldt Ml oaodiHe qaaai aiawiJiiiaw ' ThU tnmm nuay CTMsplM, whfla BnMoa t^tm aoaa.
< DrwtoB, t. l»b: BHlKtt.1. H. TbbAoMtrisBto (lul k vomui ou Bol !■ in haatfjrfji. tat inpUad Uul n«7 vtasaa ii lb* maim— < ol
S.n.§ll.]
Women.
483
The other half of our proposition, that which excludes Wodnenli lee] women from all public fuuctious, was subject to few if any real exceptinng. In the thirteenth century the question whether a woman could inherit the crown of England must have been extremely doubtful, for the Empress had never been queen of England. QueenB-conHort and qneens^dowager had acted as regents during the absence of their husbands or sons and presided in court and council'. The line between office and property can not always be exactly marked ; it has been difficult to prevent the shrievalties from becoming hereditary ; if a woman may be a comitissa, why not a vice-comitigsa^ ? Ornamental offices, hereditary grand serjeauties, women are allowetl to cairy to their husbands and to transmit to their heim. 80 also, when the constitution of the House of Lords takes shape, the husbands of peei-esses are summoned to sit there as 'tenants by the curtesy*,' but peeresses are not sum- moned. ' The nearest approach to such a summons,' says Dr Stubbs, 'is thai of four abbesses, who in 1306 were cited to a great conncil held to grant an aid on the knighting of the prince of Wales*.'
In the nineteenth century our courts have more than once vromtn tn considered the question whether women did suit to the local moots, more especially to the county court, and have come lo what we think the right conclusion*. Undoubtedly a woman might owe suit to the hundred or the county*, or rather (fur this we think to bti the truer phrase) the land that she held might owe suit. Also it is certain that some sheriffs in the latter part of Henry III.'m reign had insisted on the pen^nal attendance of women, not indeed at the county courts, but at
■ Already in D. B. 1. 9S8 b we read of pleu * oocain nfina Ma(hUd«.' 3 For •avsral yean ondei Henry III. EU, oooDtflM of Stlialiui;, wu aberiff of WflfadtiN; ne Uit of sbtfUI* in Slat Bap. of Depnty-Eeeiier, Rut in Hi'm cmae tiura was a daini to an bareditary ahiwvalty ; Nou Book, pi. 12S6. The wif« of Kanolf aUnvill, Rheriff of Yorkifaire, is called Brrta Vktccmititta in a cfaancr: Iloond. Geoffrey ie MandeTille, 385. ' llargnvc*! noto to Co. Lit. 29 a.
* 8tubb«. Conat. Hut. i Ul. IIoIIr of ParUameal, iv. :nO (&.11. U2S] : tlui Mrl of Norfolk had issua Margaret bis beir, ' lo whom no plaoa in IWieneni nO'ghl appnrteroo, hj oauM abo vnu a woman.'
* ChttrttOH T. Lingi, L. II. 4 C. P. S74; DtTttford-Hoi» V. SandhurU, W
Q. D. D. n.
* Rot Hand. ti. 61 1 *I>onuiia J. la E. tenet W. , . . st facit Kctam aJ eomi- Mtnm M boodraduiiL' Ona example among many.
31—2
484 The &yrU and Oonditunu of Men, [bk.
tho«e pIf*Dar7 meetingB of the hundred rourto ihat mn w the ttumfTt lurna. Bai it i» oquftlljr oertoui \hmi tU*' exaction wu regarded m an abnae uid forbiddeo*. W« oaa 1^' not doubt, thouffh thr evidence on tbii point is mlber Ucii than fxprem, that womt^n did the suit due frnm tbeir Uad by deputy. Again, we never find women u jurora* when, an not onfrequently happened* some expeetaat alleged thnt there was a plot to supplant him by tb« |i duction of a supposititiouB child, in which caee a jory matrons wm employed*. To say that wonoa onoU oot jiiron is in Ihix period almost uquivmlont to aayini; thai thi could not give evideooe, but their uamee eomeUtaee among the witneesee of oharten*. In all aotiooa i had to produce a suit {ineta) of pemns who in thecay wctr prepared to toatify oo hk behalf; we eaa not find thai h» ever brought women. One of the aotieiu in which aneh 'niitors' were of importance was the actiou Ibr rWiding whethor a person was free or rillein. and hete firitua n>- pressly tells ns that a womaDs tuatimooy was nol rseaiveiL, * for the blood of a man shall not bo tried by women ' ; word uf women, we arc clvcwhcre told, can not be admiUed aa; proof. ' because of their frailty*.' In the feplwaiitinal eonta the nilc seems to have been that a womaa'a BBOipufgafcOH
1 Ths PmMoiM or 1S£0. «. 10 (MUt i. l). m; UmI tU mA, 'MB \ai. *•!] kllqni mIIkImI {mt. rw. riril mi mvOmm' 9mi mat tfw tarn «a\mt vpfloUJlj ismnoMd. Th* rwdinc at Ik* Oda ^Om froa Ihsl of lb* Pfttont noil. Th* Suiato of UuVimam^^ 1. 10 (MM. L flk ivpHUi tkb wiUi ■ vxmU T«n«UoD ) tbt panem* wlw wmA mt* atlwrf mm lk» pr«JjttM, MfU, baraai, 'DM »l((|iu viri nlieion mn BttlMvva.' TW ^mtt^m ha» bMo imiMd wIwUmt to Uiia Uit |i>*w#> mmh^m to invvniaJ hy iti^mm la tBj mm ira iboald b*** UNvorad Mm la Hm supUti, i«l a mmpmnmm tt lb* nricNw lnt« wmm* to maka IhU fUa ; la «w im^ii of iW fkwvMiw Ihara u tw rtri. Tb* tMVi nMyiap^ «w sttta and at a wak^tmitm. TW wholt ilMina bi« Ibi air of dmlinc wilb • meimm ak«H, hr tte Ian h ■■ te hsld ss Is lbs Ubh of th« kloi^'i uMHion. IV ivCmaM to a ^i^sl mh^^w
BMBs tfab, tbu Uh p«Kw «maptod b«B 4ois« Nft to Ife tan «^ «w 1^
Itoihsn lo get to It lor lbs yavyaM of 4ili
faaadnd ooait, «r ol sanvii^ lb* ■nriiaminw mUA lb*
krtac sgslaslllMSL
• Bntloa. f. M: Kato Boob, yL IM.
• Osrt UffVMlx. p. «•: ftfvaHBMdria' wd bte wtCa, wIimm « vUov** gift.
' BriOixi, L M7 1 *dt iiMBi hsso <• Ihsbbm ■• pMl to Ui. atw W^l |v liOTii'; FlM».tll-V; Pita.abr. rfib«srf.fL IT (II Ida. L)s land AMtM Dolb (Ssmto Soa.). p. IT*.
CH. n. § 1 1,J Women. 485
ought to be women*, just aa a man's compurgators ought to be
men, but apparently in the kipg'a court a woman bad to find
p.M8i male oath-helpera". In one respect a woman's capacity of suing
was curtail&i by her inability to fight. A rule older than, but
sanctioned by, the Great Charter prevented her from bringing
an appeal of felony uutess the crime of which she cociiplaiued
was violence to her person or the alaughtcr of her husband*.
In these excepted cases the accused mtiat Bubmib to trial by
jury ; at an earlier time one or other of the parties would have
been sent to the ordeal*. lu the thirteenth century this
limitation of the right to make criminal charges was already
becoming of little importance, eince the procedure by way of
appeal (that is, of private accusation) waa giving place to the
iudictment.
On the whole we may aay that, though it has no formulated Summary.
theory about the position of women, a sure instinct has already
guided the law to a general rule which will endure until our
own time. Aa regards private rights women are on the same
level as men, though postponed in the canons of inheritauce;
but public functions they have noue. In the camp, at the
^uucil board, on the bench, in the jury box there is no place
for them".
We have been speaking of women who are sole, who are M»iried
women, spinsters or widows. Women who have husbands are in a
different position. This, however, can be best discussed as part
of family law, and under that title we shall also say what has
to be said of infants. But here it may be well to observe that
the main idea which governs the law of husband and wife is
not that of an ' unity of person,' but that of the guardianship,
the mund, the profitable guardianship, which the husband has
over the wife and over her property.
' RoUs of ParUament. i. 146-7.
' Note Book, pi. 7 : 'Lex de maBculiB si femiua defendat.' » Glanvill. lib. xiv. o. 1, 3. 6 ; Select Pleas of tbe Crown, i. pi. 82; Charter of 1215, c. 54; Bracton, f. 148. It ia often aaid that the woman mast allege that her hasbaud was slain ' within her arma.' Thia seems to be only a pictureatjuo ' common form.'
* Ulanv. xiv. 3.
* In tbe Tcrsion of Glanvill's treatise given by MS. Camb. Univ. Mm. i. 27, f. 31 b, it is remarked that women can never essoin themselves as being on the king's service, 'quia non possunt neo debent neo solent esse in servitio domini R«gis in ezercitu nee in aliis servitiis r^aUbas.'
486 l^e Sort$ and Conditions of Men, [bx.
•I Ummt
§ 12. Corporations and CfturchesK
Erery tsystem of Ikw that tuu attained a cvrtoin cbgf** matiinljr leenn oompelled by tba ergr-inewiring uf bamnu oflfuini to create penoot who on Mi nMO. «r (for thiA may be a truer stotenwot) to ivoogniso that toeh penons bave como and in* coming into oxwiBnoa^ and t* »gulat« their righlo and dutiu. In the hiMorjr of Europe wo have to wmtoh oa tho "no bond tbe erolutko gnmpH (in luu-timlnr, rrli^ntit* group* and gruapa of baigaiaM| which m our oycii uxiu to duplay all or many of tho iaticR of oorponUiDOB. ood on the other bond tho pUy thought oiuund Lb»t idea of on mitiwrntcu which woa slowly diaeovercd in bho Roman Uw booho.
We have beoome no familiar with the idea of *a aggregate of many * that we have oeoud tu wonder ol t| When we ore told by ttatule that tbe word 'penao' u include 'body politic' that leeiiie to «• a rtrj aatwml rule*;' ^vverthelew, this idea was gndooUy fiuhiooed, and wfasD we attempt to analyse it we find that it is on ehudc beeuM it IB, if WD may ao aay. a wery cuntenilon idaa» a blook iam of legal thought Little onoogh in oommon have ifae dirsn oorpomtiona known to Kngliidi law: for enuunpW, the noscicml ComminioDcn for KnjfJand ; tbe Deoa oad Ely ; thv Chancellor, UiUbtn and SobolAn of tbe Vi of Oxft»d ; the Mayor, Aldermen ood Bnimwss of Ifao of Cambridge; the Uovmior and Oompaay of tbe Badt Bogbad ; tbe Great N<irthcm Railway Ceapooy ; Styleic Nob* and Company (limited^ Ataoag 'ootoral penons' tbe low Cor a long time pott hia been able to ugle o«t ooe dmm m fr< being Dwnial or typiool and to trant iHhtt fliMMa ■• ump* tionol ; aitd to this we may odd tbot ia eovne of ttme eoae of the I'xci'pUunal claaeos diaippeor; the noble oIlMa diaopptsa the unfree cUu disappeais. Far otherwise ie it with ill«
1 A MpaalHl praol of Dr OMrin'i «fwl b«4. Dw MbaAnafct, BmUo. ISIO-U. bm iiiiilm I m^ vfaUh la dw *M ■lllkB Un l^ dito rUlMmma Pmwm. Im
" tntarrnUUofl AM 1SM» (n*CSTiaaM)Milll«:
CH. n. § 12,] Corporations and Churches. 487
* artificial persons ' or ' group-persona ' ; we can hardly call one corporation more normat than another and modem legislation ifl constantly supplying us with new kindu. Thua we are not likely to find the essence of a crjrporafcion in any one rule of law. If, for extitnplc, an English lawj^er would make all turn on the common seal, he would be setting up a merely English nile as a necetiwary niaxim of jurisprudence ; nor only so, for he would be begging an important question about the early history of corpomtions in Enghmd. Some again aaay feel inclined to say that a corjwration must have its origin in a special act of the State, for example, in England a royal charier;, but they again will be iu danger of begging a ques- tion about ancient history, while they will have difficulty in squaring thoir opinion with the motlem hiatory of joint-stock companies. Modem legislation enables a small group of private men to engender a corpomtion by rogiBtmtion, and to urge that this is the effect of ' statute ' and not of * common law ' is to insist upon a distinction which we hai-dly dare carry beyond the four seas. Or, to come to a more vital pointy ahall wc demand that au individual corporator shall not be Habjo for the dt^bts of the corporation ? ' Si cpld univerHitati de- bctur singulis non debetur; nee quod debet universitas ainguli debent" — is not this the very core of the matter? Once more modem legislation bids us pause: — there is no reason why a statute should not say that a judgment obtained against a corporation can be enforced against all the lands and all the goods of every single corporator, and this although the cor- poration still exists: — in ordering that this be so, the legis- lature does not contradict itself. Nor again is it only from modern statute, that we receive this warning; our ancient ri] common law gives us the same warning in unmistakable terms. If we insist that common law can not hold the singvli liable for the debt of the universitas^ we shall find little to say about corporations in any century earlier than the fifteenth.
Hitherto the lesson that we have been taking to ourselves Bc^inningt is that we are not to deny the presence of the idea of apOTAtsneH. corporation merely because it is not producing all of what we
> Dig. 3. 4, 7.
^ Id the first half of this century oar pu-liament tried many ezperinMots of this kind. See for example the Act for the BegistratioQ of Joint-Stook Companies, 7 & 8 Vic. c. 110, sec. 25, 66.
488 TU SorU and OondUu>n$ of Men, [bk.
cotwider ita tiatuml cffiiotA The wmraing in oqoally that in remote time* we may aomewhat caiiHj duKorcr ooqxmr tionM that never existed. The hwtory of the cutier |mt td our uwn century proveN that large commerdAl eoteipriw may be eonducted and much done in the wny of suboidinatc govrm- ment by aj^gregates of men that are not inoorpontcd. TW law uf tenancy in common and joint teaaoey, Um Uv of partiienihip, theoe have been found equal to many heavy and novel demands. And when we torn to a fiu^-off pMt w« wmy be in great danger of too readily nering a oorporodoa in aoow group of landholders, which, if modem diatinctiona an to b* applied at all. would be better olaaeed ai a grotip of jocot tcnanti than oa a oorporation.
The core of the matter OMini to be that lor men w !■§ numrruun pur^HMMW some otganizetl gniup nf men' U treated a* an unit which baa righU and diUioa other than tbe rigfala and dutiM of all or any of its membew. Wbot i> tma of thae whok need not be tme of tbe sum of its parto> and what ■■ tnie of tbe mira of (he porta need not be tnie of the vImAo. The corporation, for example, can own land and its Uad wiH not be owned by tbe lum of the corpormton ; and, oo Um vUmt bond, if alt the oorporatora are oo-owacn of a tbingr tken that thmg ii nut owned by the oorpofolion. Tkie being ei^ lowyen from the thirteenth century onwards hove been wont lo attribate to the corporation a ' pemonality * that u 'fictitiaai' or 'artificial.' Now 'piuson* and * peraanality ' ivea to ■{^iropnato wordi. and, if they were not at oar diopiHal, ehoald be driven to coin othen of a aimilar import'. eorpocote tiuit baa become a nubject of rigfata and dntiML Uw other hand, the adjectives which are often used to qnaliQf thi* pcnoDality are open to aerioiM objeetiaa. ainne tbey aaoi to iqwok to m of lome trick or axploift patfimod by Iawtib «ad lo Mggort a wide de|iBrtan of legal theory frun faol oad eoinmoa opinion. It nay at loaM be plonsbly that the anbject uf iboM rigfatu and dutiw wbit^ v« to the eorporatiou is oo figment but the organiaed groap «f man. thoogh thie group i« tioated oe pore aniL UnkoM ofl iodal and political organisation deeenee to be eaUed MilJiM.
■ Wi BHlKt lor ft who* ihAi nalMfpr frwt ol
la * Bndi u till OwBia ntfklmt^Mt, M\ II iiyiiiHililf
CH. U. § 12.] Corporations mid Churches. 489
a contract between a municipal corporatioa and a joinUstock company is not a relationship between two fictions ; it is a relationship between two groups, but between two groups eiftch of which is so oi^anized that for the purpose of the matter in hand, and for many other purposes, it can be treated as an indivisible unit and compared to a man.
Oae of the difficulties that beset us at this point ia that The we are tempted or compelled to seek the aid of those in- ^^orph^*^ adequate aiialogies that are supplied to na by the objects which J'^JJi^^ we see and handle- First we picture to oureelves a body made ti"""- up of men a« a man's body is made up of members. Then we ^nd ourselves rejecting some of the mferences which this similitude, this crude anthropomoqihism', might suggest. For instance, we have to admit that every 'member' may be injured while the whole 'body' suffers no injury. And then perhaps we say in our haste that the corporation which has rights and duties can be no better than fiction or artifice. But all that is proved by the colkpse of such analogical reasoning is that social organization differs fi-om, if it also resembles, that or^uization which the biologiet studies ; and this should haitlly need proof.
Were we to digrees to modem timee, we might be able ib the per- to shaw that the theory whieh Hpeaka of the corpoiutiou's gpjijio^? personality as fictitious, a theory which English lawyers bor- rowed from medieval canonists, has never suited our English law very well. It should at all events be known that on the continent of Europe this doctrine no longer enjoys an undis- puted orthodoxy either among the students of the Roman universitas' or among the students of medieval and modem corporations. But here we are dealing with a time when in our own country the need for any idea of a corporation, whether as persona ficta or as 'group-person,' has hardly become evident. \y Now if for a moment we take our stand in £>jward IV.'s The oat- reign, when the middle ages are neanng their end, we can the end o< say that the idea of a corporation is already in the minds of jg^,, our lawyers ; it may trouble them, — this is shown by their
1 For some anthropomorphic vagaries of the middle agoB, see Qierke, D. O. R. iii. 549.
5 Gierke, D. G. B. iii. 132.
JTw Sorts and CoyxtiUion* of Mm, [nc. tt.
diacawons about it« iMtat»— but itill it is than^ Ftnt wfl Dotiee that lb«jr tSrtvUy have « tenn for ic, luoielj, eorporadon, for which corps corporal and wrpa potitik orv oqaiTalentK. Then umlcr thtA Itfmi BowraJ ualitiea which have little in cutnmoii havo be«D bruugfat: in [ktrticutAr, abbot aad conveut, dean aiid ebuiHtT, mayor and ooamomllgr. With lacb ' iiicurpt.»r&ted boditw ' they contrast ■ggliigltM of MaD that are not incorporated, cowiiahips, parishes, gilds'. TiMy dcinniid that ineorporafe«diies8 shall have aoiiw dsfiait* and atithorii«tivf< commeneenient ; the ooiptvatioD dosa oot grow by naluru ; it muHt be madu, by the act of parliameiii. ur of the king, or of iho pope", though prescription nkay be eqoi«»- lent to royal charter. The rule that the oorponitiao caa do au act savti by a wriUog under its eomnioii eeol iktay Mimt with severity ; it Is on anomaly, a coooeaton to prartial n^ cessicies, that tbe oommands of the oaqxMmtiaa about pet^ affiiini can ootoe to iUi servants through leoi fonaal The corpomtion is invisible, incorporeal, immortal; jl be asMuilted, or beaten or imprisooed; it can not treason ; a doubt has oooanred as to wkother it oon eooamift a T^* tre^MSB* but this doubt (though it will give treobla ■» an the year 1H42') has been rejected by piaclioe, if not by any atnttiateiit theory'. We even find it eaid tiMft tbe oorporatioQ is but a name'. On the other Ittnd, it is a
1 SMth* YMrHoofciof MwsnllV.to
JUol qf St Rtntft Olnhm) i. itm^wr m^ C ifH ^ HmwUK^mt
npoflwl. T. B. ai Edw. IV. f. 7, IS. t7, ST.
■ y. B. 10 Edw. IV. r. 31 (pMob. pi. T): sa imhiiM|wil>l fOI or U n«n. VII. r «7 (TMii. pL 7) I •twBmmm (SA Ml si <M|a di a'wl nolo cuTponoioo.*
> Y. B. H IlM. TZa L 9 (Miob. pL fl): A«a wJ oaoUDooalt; m Inaorpoiatrf bjr lb* li^; tbt ■bbot utd eoomt bj both Uac sad po^
' Y. H. 4 Uml Tn. t. « (PvMb. pL 1) ] 4 Bm. TIL t lY (IBtk. |l Di 7 Bm. VIL (. tt (HO. pL S) ) 7 Km. VO. t U (Tiia. pL a|.
' Uk. Am. ana. tS, E. 100, pL n.
* JAmmI ▼. Mmmgmlktktrt CuaJ Cri^iwj. 4 Mualw ^ Om^* Ibpoita, at.
' 4hf. 0/ r«rA r. ilmfvr He. 9f Bwtt, T. & U U«. IIL L 9 fBL |A. I|: T.B.saM.TX.f:i{Uiih.pl.l»; T.& t«8ia. VL(.ll(Trta.fLl)} X. Ik a Bsa. TL t t \Ukh. pL U).
• T. D.» U«. IV.t. ll<Mkb.pL4)i 'Isi DOSOM. ^M M poil injr win Tin, m ■<» n^ n^rnnir. • a ■•• Ml bnpMiiUa d« Uin sa lack*
r. n. § 12.] Corpotyxdons and Churches,
491
)n'. It U at
;rsoD and yc-t but a name: in
once shnrb, it is persona ficta.
The main iliffictilty that the lawyera have in manipulating Tlie eor- thiit idea is occasioned by the fact that almont every corjHiration uA lu has a ' head,' which head is separately oud expressly dL'signatvd SSJropo- by the formal title of the juristic person. It is reganled a-s >»«p™m. an auumiUy that at Uipon there should be a corporation of canons without a head*; normally there is a head; the ideal peraon is not the Convent of St Albans, ihc Chapter of Lincoln,
I the Commonalty of Norwich, but the Abbot and Convent of ^t Albans, the Dean and Chapter of Lincoln, the Mayor, Bherifls and Commonalty of Norwich. This keeps alive the anthropctmorphic idea. In 14^1 a puzzling^ question arostti as to whether when a dean and chapter brought an uctinn, a Juror might be challenged on the ground that ho was brother to one of the canons. An advocate who urg*» that the juror is 'a stranger to the chapter, for it i» a body uf such a nature that it can have neither brother nor cousin,' none the loss concedes that perndventure it mi^ht have been otherwise had the juror been brother to the denn'. Elsewhere the relation between dean and chapter is compared t« that between husband and ^Bkrife ; * the chapter is covert by the dean as the wife is coverU ^^y her husband*.' From the same year, 1481, we get one of 7S] the most interesting cases in all the Yeax Books' : — The Abbot of Holme sued the Mayor, Sheriflfe and Commonalty of Norwich ^un a bond, and they pleaded that when the bond was made the ^fthen abbot had gftt the then mayor in prison and extorted ^pho bond by duress*. The lawyers very generally admit that the corporation it«elf can not be in prison or suffer duress, and that it would be nu defence to urge that when the bond was made some few of the citizens of Norwich were (as they generally woold be) in gaol. But then in this case ' the head ' of the ition was incarcerated. '1 toll you. Sir,' says counsel
^^sorporat
> T. B. 83 Ueo. VI. t. 9 (Mich. pi. 18} : * Qi nDt per ont aorau uo panoa oorpoKte': Y. B. 21 Edw. TV. f. S'i (Puoh. pi. 28) per Cftteab)'.
> T. B. IS Uen. VX. t. It'. (Triii. pi. 4); T. a 31 Edw. IV. r. aH |Pa«ali. pL iS). CotnpftTo whit U said of tbe C«nooa of Soathwtll in Sution't liofpiuU Catt, 10 Coks'i B«porl0, SO b.
• T. B. n Edw. IV. f. 81 IPuoh. pi. SS), f. CS (Uieh. pi. 88).
• Y. B. 8 Hen. VI. f. 0 (l^iMb. pi. 0) per Bolf.
■ T. B. 81 Edw. IV. f. 7. IS, il7. 67.
■ For the boU of thu tutereitlng caee, wa Otwen, Town Life, U. 801.
498
ITu; SorU and Conditions
Cwcdr-
fWMslL
tw th« ciiy\ ' that every body puHlic is made tip of DAttuml men. And as reguds what hiw bocn nid touchiDj;^ iu Bcvcrability, 1 do not admit that; for they ailuw thai ou flherifib and commonalty make up a nngle body; bure are member8> namely, the mayor u OM member.. -the •b«nft another member.. .the ibin) bt the oomrooiialty...lD tfaia oaat there in an alleged imprieonmeui of one of the distinct memben named in the title of the oorporation. to wit, the major, who in thtf hfnd ftod (as in a body natural) the priitniyl n«Bibv.» and if uue member of the body nataml be nMtmined or hwfin. that if a restraint or battery of the whole body.' Thia idea that » (Njqxinition conifists of bead and membos. that creiy act of iht' corporation tvquirus the oMent of iU bead, that, if for a while it is hcadliaw, it ia capabti* of no act aave that uf electing n new head, ban given trouble in more raotat rimra and i» perhaps capable of giving trouble oven at Ibe preamt flay* ; it is a relic of what we have called anthropomorphiflEB. In Edward IV.'a day we are told* that the Mayor aod Cb«- monalty of Newcastle gave a bond to the person who happaiMd to be mayor, naming him br his pesaooal name. It was beU void, for a man can not be bound to himaelf. So laog aa aock a deoiaiuii for Huch a reason is possible* Ihe modarB idea «f a oovporatiuu i* not secure; at any rate it is faaopared hy aa ioeoiuistcnt and older idea. Still in the Year Bouks ef Edward IV. thai idea ia present, nay, prominent, and maam important rules uf law in which it is implied havv alrcMljr been settled. In particular it ia establisbed that if ibe poration becomes liable u|iou cuntnu't or for tort, thi* not give a remedy against th« pciw>ns, lands or ipioils of lbs corporators; the corporation itself in liable; exeeatm wiB ha dune only on its laud>i and its gooda
We go back but a little way in the Year Boolts and idea that we haw been watching begins tii diipprr Tbt figure of the ideal penran vanishes, or nUhar it seeoM at ItSHB to become a mere mass of natural persona One OMtaam wA
M
> Y. B. 91 Ed*. TV. t W.
* bm QatA DB ContotmUaa^ ^ UO. vhm U It Mid ikU * a tk ■ ■ nnllni drri— tond* to Uw oolbin. tlur canMN tak*. hMMW wl tW i ef hto dMh lb«j M* M taoaaiptiO b«d/.' But la laiS u sMm sm IttUjr M«l upon ft bond c>mu hg ffkm ukl watwii ^nm^ • mmw: Y- & 7 E4«. m. L SS (Tria. jL •&>.
• T. B. XI Bdw. IV. (. 14. L «B, rw ViviMV.
:h. n. § 1 2.] Corporations and Churches.
49S
rve to illustrate this change. So lat« oh 1429 aii action of
^trespass was bniught agaiDsi the Mayor, BailifTii ami Com-
ixnonalty of Ipswich anil uno J. Jabe'. The defendants pleaded
the marvellous plea that Jabo was one of the commonalty and
(therefore wa» named twice over If the defendants arc found
guilty, then (it was m^ed) Jabe will be charged twice over;
l>cside6 he may be found not guilty and the commonalty gtiilty :
that IB to say, he may be found both guilty and not guilty. Wo
^_ do not know how the case was decided ; bnt it was twice dis-
^^cuasod. Incidentally a fundamental question of corporation
law was raised. Suppose that judgment is given against the
commonalty, can the goods of the members be taken in exe-
I cution ? On thu whole the judges think that they can not,
^■but are not very sure. They make an admission of groat
^^ importance to ns, namely, that it is the common course in the
King's Bench that if a community he amerced, the amercement
shall be levied from all the goods of the members of the
community*. The obnoua tendency of this admission they
^^ seek to avoid by saying that there w a great difference between
^Pthe ling and anyone else. As we shall hereafter see thia
^ admission was unavoidable ; the goods of the membera of
municipal communities were constantly treated as liable to
satisfy the king for debts due by the community as a whole.
And a mere doubt about the general principle of corporate
ATT} liability occurring at so late a date as 1429 is remarkable'.
, We have indeed observed before now that the non-liability
^■of individnal corporators for the debts of the cor]>oration can
^V not be regarded ns of the essence of a corpoi-atiutt tStill unlcsh
^r such non-liability had been commou, the mudern idea of a
corporation would hardly have been formed.
I In all this there is nothing to surprise us. Suqmwng it Ondiifcl would have been had the English lawyers of Braetou's day ^tLt™""*^ obtained a firm hold of the notion of an umveraitas. caae they would have bt'en aht-ad of their Italian contempo- raries, who hod Code and Digest to set them thinking. It ^ V. B. S Hen. VI. r. I (Mieli. pi. 8) ; f. U (Mich. pi. M). * The void* uv * ««fa Ictia de touts bienii etc. ' ; it in daftr frum the cout«it Uui IhU mma* 'Bhftll bo ]eT]«d ftom kU the goodn of lh« tuemlMra.'
* In HS7 it in MUd ihit if k mui rocorcn debt or dunagct iftuu't > eotminonftUy ho <b«U only hmre cxcvdUod ogaJost the good* thst Ibcy hAV« ia ooounoD ; Fits. Abr. Kxecutitm, pi. I2d, ciliag an oopriDted Y. B. of Mich. Id
n.
Inth'^tJSr
494 The. SorU and CondUwna of Mm. [ac n.^
Itiu Uw of
iBnelon'f
would be a miBtokc to rappow that what we arc woot to cnnmdcr tho true theory of umtwnUUu Ujr m> ylManXy vhttaa on thr faco of the Romim Uw-bookfl that do one eoald nad them attentively without grasping it The glriat uni did aoi grasp iL Braeton's master A20 had not grasped iL Thty w«i« by DO incADs oertMn about tbe differeoce bKweeo Uw vnivtrnUu and the aoctstaa or partnendup. The canooieta of the thirteenth century were jnai beginoiog to pTDdaim tkoft the univtrnlat is a p^raona and a ptmma JtelA. BraelOM'a contemporary, Pope Innocent IV. (Sinibaldas Fltscasl, has booo osUed the bthcr of the modem theory of oorparatiaD& W« now begin to hear ihu dogma (of which all Enylish lovyva know a vulgar ventton) that the wnwrv^tu omd bo piini^rij neither iu thit; world nor in the next, for that it has nor «b«J nor body. And yet. when tbuse step* had bees token, moay aa elementary question lay open for the cinliann aad nontnirts'
This premiaod. we turn to tbe law of Henry IIL's day, far tho purpose of hearing what it has to say (I) of oorpontians in general, and (2) of tht^ more important kinds into wImIi oorporationff may be divided. But at ooca we diacotor of corporstions in genonU littlo if sud. sad tho law k dividing oorptnmtions into vsrioas kiods, thns proosodiaf tbe abstract to the ooncrete ; imther it is slowly eomiBg lo tiM idea of a corporation by dealing with oocporations (if « «* may call them) of very different kinds.
In the first place we can fixid in our law-books no sack terms as cor^Kira^'on, lody corporaU. body poiUic^ tkopgk <M may read much of eonvnUs, cAojaters, and rflswaawifMa 1^ largest term in general ose is eomonuuHy, ctnmauittijf, m CosuniMS, in Latin eommuniUu at oosssiiuiSL It n « loi8>* vagne word ; in the fouiiosntb century it is ofkai appBal to tb« English naciuu, * the eoamonity ' or * the ooauaaao of tks land * ; it ia applied to tbe Cist«rciaii order" ; it is appbsd Is tba University of Cambcidga, far *in the viU of fcben are two ooramunoi^ one of dorks aad ooe td lay
I
1 8M0i«U,D. O. B. f l^Hr vA BL t>L MSA Iff-OI •eon ooOigbua in «aBia Balnwintk ia^la mjt, *oBtvwBttu Bca m% oipai possst Mfllilli^ tmtanUn, Mm oorpoi MiJiMtem ooa liab«l md hot iftaa.* TW ■■■ dti wiMJ whilhw s eocpqaUoa teaH W ■
• BeL rteL t «». ■ BoC Pivl. 11. 4f .
r. IL § 12.] Corporations and Churches,
495
it can be applied to 'the coinmnnity of merchants who hold the kinjj^V .staple of woolx'*; it waa applied to the 'bachelors' of Kuglaud who in 1259 had joined together to obtain cuu- cessioDS from the king*. But we dare not translate it by corporation, for if on the one baud it is describing cities and borougliM which already are, or at leaat are on their way to become, corporations, it will stand Bt|uaUy well for comities, hundreds and townships, which in the end have failed to acquire a corporate character, and we should be unwilling to ^bappoae that the corporate character once dcBnitely acquired was afWrwards lost. One term there was (so it may seem to us) capable of binding together all the groups of men that were personified, namely, the word univertitas. But it« fate hati been curious and instructive. In our modem languages ^■(he Roman term that most nearly answci'ed lo our corporation ^Btauds for the corporatious of one small class, the learned ^Borporations that were founded in the twelfth and thirteenth ^^snturies and others that in later days were fashiimed after TB] their likeness. These were in the middle ages the corporations by preeminence, and if the universities of Oxford and Cam- bridge cared lo assert that they are' the oldest of Hnglish ^^orporalions something might be said in favour of their claim. ^Vor the rest, the word universitaa is of common use in legal documents; but only in one context, and one which shows how vague a term it could be. The maker of a charter salutes ' All the faithful in Christ/ or ' AU the sons of Holy Church.' ^^nd then requests their attention by Noverit universitm veHra. ^^ow the idea of the Church as the mystical body of Christ I has bad an important influence on the growth of the law of ^Birporationa ; it did much towards fashioning for us the antbro- ^^omorphic picture of the many members in one body. Still in days when the word universitaa was put to ita communeat use in describing a world-wide, divinely created organization, it could be of amall service to lawyers as an accurate word ^jf art.
^H Bracton has a little to say about nniver8itatt9\ it is meagre, Brvtoa it ia vague, it is for the more part borrowed from Azo, but mh'mtw- none the leau it is iDBtructive. In the first place, the cities'*^ And boroughs are the only examples of univernttttes which
> Rot. Pm-I. il. 191.
* Aim. BurtoD, 471 : 'oommimitu baohfllOTlw Anglifte.*
The SorlM and Conditions o/ Men, [uu
occur to him. In the second place*, foUowing tbo IiwMtiti ho admits thut there ans re* unieertUatia which aro 10 W* eoDtriSMd with nt nnffulorum, ThinUy. no definite wTam|ih« of ret universitatis doea he jpve nve those thmt are given hy Uie InstiUiboi, namely, the th«itrum and ttadiitm. The in ferenoe in obvioaH that, though he allowed the pa«nbUitjr «f •Q vmittrsiicu huUling land, bo knew little of tbo English or borough as a lainluwner ; it is not in hia manner to gi Roman axamplea when ht* can give lilngliah, while aa to medieval boroughs having stadia H tfuatra, that ii Fourthly, he knows that if the Engli»>h uniotrgUoMt the oHj or buruugh, haa but little laud and few goods, it haa magaifinaal HberUOw, franchisea, gov«mmont«t powetv and immonttieak and theae are a common frabjcci gf litigation. Fifthly, wbeo be ipeaka of such litigation he fpaaka vaguely, and hardly dia- tingninhoa between the fmioermku and the aggregate of hijwIi, Sixthly, he nowhere makea an act of royal or public powvf neooaaary to the existence of an uniimrtHaM. '"1^. ha not bring any eoclesiastioal bodiee under thii (all within another form of thoQght*.
i
■ Inct. >. 1. $: 'UninniutM nut, i tetibua MIDI, nt ibwtn. ilKdla H dailb fl ri fMi alk mbI KviWioiB,'
■ Bnetoa. I. »: 'CaivcniUlk varo nut, doo magvianm. %wm «■• la Mhftatibu, at tlMatnuB, stodift «t hniaaaofi at •! <|a« out ui aMtaMbai •onninU.' IbhL t UOb: 'Uam vid«« dtbatt [Iweibm la m^m mm Jwririmtl DtnuB iMWuntom fuvril unmi H •Mran. tiral paUlMHitt vit nmcnutaiM u •*mi'^-i. i tirHaliam' itha mmi Mid fPttMM »n tnm tmL 9. 1. 10^ IIM. ( |07fc: *^h HiMffuninnini qnoddun aae iMnuB, bm mMtmn, w$d MiliMt uaherMbUu vel c»tmBttiti(Mii» nl ooMlaa ■! priml v«l (doguUru. tkut Muit lluAttm >l ato4ia *«1 Iom In civluUbtUTtl wtrm.' IbkL f. StAbi 'Hon (««rnliw pntent tva] tantiuo . . . iUm loetlk at Doa oMtb ywik timt tliamkm boifnuiani •( oMms. at okbh saofaai pBHoal •! aaaa aik BBlvmiutk' (thk eoaovniaf •amrUnim,' Id yartlMlir mmmm «C 1144. t. r.«b: 'Itaoi Alio quad jmIbm m» (Hm «• pfMtladl. doobua BiiiinianiH kU^oui KbvtUMa. al ri •tvibw T«l burtMHiboa mi aUqnibw aUb ^aod ■uaMlaa hal^al vri ^li to vOla HS. «Miai«, *al tiat«o . . . d fiataiaiB aSfaibiM la npw no. . .meamUm qw^ fliflw laad^ffTi dib»pt in uli tflwmla.' lbU.C.lMiftMl Ino^ 'BoaitM aUouitw uurtniutia idoat is raa coeMnaaK.* IkU 1 in 1 tf Um kitHt am tba * anJaaniUa ivgni ■! fcaimiatlaiii * auf •Ron ■ la oarU doaltii Bagia,' Vtm ytwrntu «■ I. • la vkWl
'CH. II. § 12.] Corporations aiid Churches.
497
1^ Being unable to find any theory about corporaLionH in ^neral, wc are obliged to descend to the various kinds of lOorporations : bo consider, that is, the maimer in which the law of the thirteenth century treated those various groups of men vhirh scorn to u» to have a more or leus corpctrate existence. ^^They are either eccIc^iaaticaJ or tenipoi-al. ^B For many centories before Bractoii's day there have been ^in England what we may call 'church landfi'.' In some sort or another they have ' belonged ' to ' churches.' But to fashion a satisfactory theory as to the ownership of these lands has been a task beset by practical and intellectual difiiculties. The ^-scheme uf church-property- law which had prevailed in the ^^Roman world before the German deluge had been a system ^HOf centrnlizod and official administration. All the ccclesioHtical ^^property within a difx^se was under the control and at the disposal of a single officer, the bishop of the cimtas. His powers were very large ; his subordinates, the diocesan clergy, ^■received the stipends that he allowtxl them. Such a scheme ^■was adapted only Lu an age that was far advanced in cumnierce and orderly government, and we may doubt whether it served iven as an ideal in England where the thread of eccleeiaatical lition had been broken. It implies an easy transmission wealth and mesaagea from place to place; it was thoroughly nvic and could not be maintained in a world of villages and lanopf inhabited by rude barbarians. If there is to be much Christianity in the laud, not only must there be village churches, but the village church must be a proprietary centre, an economically self-sufficing institution.
tThen. as wc arc beginning to understand, the German has ironght vnth him into the Roman and Christian world the lotiun that, if he builds a church upon hii^ laud, it i.s his hurcli. If in the riays of heathenry ho had built a god-house on hia land, it would have been his god>house, and he would ^Ubavc made pro6t out. of it*. This is the origin of cocleaiastical
^^BMootioa belwMD two kuik of rea uHivrrwiMtt* w horrihijp iiiAn({l«(l Id the ^Haintod text {for luaaUit rod alia). Se« Dracton and Azo, pp. 97, &0, 95.
■ Aj to the vboia i>( tUu niattei, «ee Htuu. GeschictiM dos kircblichea Dcadisulwewnii. Berljo, 1S95. sod the r«vi«w by Hinschlaa of thii iuiportuit book in Zcitechrift d. Sftv.-gtin.. Ocrm. Abt. xvu. 186. AIk wc Dt Btvtz'i briUUnt leeUtre Die Eifteukinlic. Uerlio, ISU5.
* Slou, UvoefiKUlwetcD, i. 69. Soma iBfonnation about this inau^r cooiM loalaad.
39
No Uw R« yrt for cor- [Hii-otiAna iu KvueraL
Tbp
omi«d cbiircli.
J&i
498 Tiie Soru and Conditions of Metu [bk. n.
pfttroDige; Tb« right which from tha twelfth fi«nttu7 oawudi ftppenn m % mere right of patroDAge, tn adneatio or •dvovvDD. is in (irigin nti uwnrrehip of the Hoil npoo which the cfanicli tUndti and tn owD«nhip of an/ Undii or goodi tbu hav* hmu eet ftpart for the niuteiwnce of n print who oflfera Mcriftot M the Hhrinc. By dlow cl^|r«M, which »rc now being tnetd this ch arch -founder and his hoin have to be taught that Um^ can not do jiiMt what they like with their own ; aDd. Car eiample, that thoy can not huvo their rhurch worknJ tot tfarai by ordained slaves. The bishop will nut coosecmte the altar imleea a laffldent prorision of woridly goods is ssoued lor the priest. The owner or patron, whichever we eaU kinir miMS hand over the church and an appurtenant glebo bo ibe poesi by way of ' Imui,* In mcMlcm England it is in this contest and this context only thst wo still know, though only in tumm, U» ' laiid*loan ' of the old Prmakish world : the panoo atOl has a ' beoefioe/ a hmn/ioinm. It in long before th«! foanda^a nmnet' ship is whittled down to patronagu. Wu may be kirly son that tho famoos ceorl who throve to the^'rigbt fay 'haviag' five hides of bis own land, 'church and kitchen, bclI-boose loid barbgeal,' was ooooetvod W* ' have ' the charcfa in dq vcty diffitfflnt sense Gtom that in which ho ' bad ' tbe bell-boose aad the kitchen'. In Domesday Book the viUsgv cfanrch is apt to appMir as an owned thing if also as aa owaii^ ponoo : ' TVeie are here a ehnreh and seven serfs and one uiU ' : ' Thssw ast here a chapel and thive serb and oiu! miU'; 'TlMfs ■ mm diapel which rendcn eight shillings": 'Culling ibe has ft church of St Mor^' of 26 acres, Itiwhian the a ohurob of St Angustin of 11 aarss, Leoflet a fraa had a diurch df St Lsurencs of IS acrrs'.' Even Braetan complain that the layman will talk of giving a ehoteli vfaea W ineau* that be is giving an advowioa*. Heoee the proprirtaiy deaout that ihorv is in the right of patraoage; element of which the *rslq;ioae' take fnll advaaUfs tbey engulf the parish ohnnbee in cbe ptoysilj ef minsien. Uodem ecclweiasiical nIbrBwrs who wwald soch rights as tha patnn idll enjoys may (airiy my that thsy
> 0. & 1. S4 b. u. •D.8. H. tNh. •Bn«oa,tca.
JH. II. §12.] Corpcralioris and Cfiurche$.
499
are consummating the work of a thousand years; but they should not talk of 'restoration'.'
The tiarly hist')ry uf church- property in Bngland has never TtMHint et been written, and we can not aspire to write it. We do"*"™"' not, for example, know how the parish church became an owuiug^ unit with righti> distinct from those of the bishop d his cathedral church on the one hand and from those of founder or patron un the other. But there is a super- r&l element in the ator}'. Great changes take place bebind a mystic vet). At leant fur the purposes of popular thought and speech, Ood and the saints become the subjects of legal rights, if not of legal duties. ' God's property and the church's twelve fold ' : — such were the fint written words of English w. In the old land-books thi^ notion is pot before us in any striking phrases. In the oldest of them the newly oon- erted .^thelbert says, 'To thee Saint Andrew and to thy [4SI] church at Rochester where Justus the Bishop presides do I ^Kgive a portion of my land'.' The saint in the owner; his ^H^hurch at this place or that is mentioned because it is necessary to show of which of his many estates the gift is to form part. If a man will give land to the chief of the Apostles he should give it to St Peter and hia church at Gloucester, or to St Peter and his church nt Westminster ; Justiinian himself had been obliged to establish a rule for the interpretation of testa- ments by which the Saviour or some archangel or martyr was nominated heir and no church or monastery was named*. The Anglo*Saxou charters and Domesday Book seem to suppose ^H«%'en a physical connexion between the laud given to a saint ^Hand the particular church with which it is, or is to be, legally ^Hconnocted ; geography must yield to law ; the acres may be ^^Ivuiol*! &i>m the hallowed spot, nevertheless they 'lie in the |m^ church'.' Just as the earl or thegu may have many nmnors
^^B ' It ia Dot ooDtcadfld tb«t aft regards Averjr parish obareb IbU U Uu hutorj ^H^ ita sdrovwD. Ttio Hijientirche (the o»aod ehuidi) bcgioi to afleot tbe whole ^^ugnMm of law. and the bisfaop'ti power orer cliurohM that perhaiw bad nerer lw»a omwd DOW beglna to look ptoprielar;; the; art 'hU' ehnn^wa. 80 too kilit{> Mssrt a p*tronM^ over amrieat oatbcdraLi, and the smpsror mnj eren «iah to trtat tlie oburch o( Roofl as 'his' chnroh.
* E«iiiblii. Cod. I)t(>l. No. I ; Stubba aud HaddaD. iil 63.
• Ood. 1. S (da 0a EcclMiii), 9$. Xh« form cam* down fnm tb» pAgto eiaMJeal law ; > I>eo8 b«redea iuitUuere ood poseumoi pra«tar eoa qnofl BMiatQa- eoiuiilto coustitntlQDibiuvfl pri&cipma iostitnere oaooeaamn est, ikuiti lorem
nm ' t4e. Ulp. Il«>g. ssii. S 0. U, U. pp. &*t—6. Bm t.9. Kemble, Cod. DipL No. MTi Me wUI« list
32—3
500
The Starts and Conditions of Mm, [bk.
•nd a pieee of Und romote firon th« muturul otrntro nttjr ' tu in * or * be of one of thruw m&non, «o the «unt srill hnvo muiy churches c«ob with liind bcloiifpng in it. Gnwluallj (if wv nMy ao apcftk) the saint retiree behind hw churfhoe; tbc cbureh TnUuT than tho wiint w thoti^'bt of ne the huMtr of lands aod chattels. When it cotnt's to jirccise legal thinking; the «unt is an inipnw'tinAliJr jwrrson. for if we ascribu rightful w may oUk) hnve to ascHbf wmitgftti pai!tsr<«jtin to him. and fraoi this W(! fthrink, though DomfMcln^' Bf>ok ditimgeotnif ebai^ivi Si Paul with an * invasion ' of laud that in not his own*. Bn how is the church conceived i Jn the first instance reiy grossly as a structure of wtKxl and Ntone. Ijuui belongs a church, ia an appurtenance of u church, JuhI as uth«r belongs to (»* is appurtenant to some hall or dweUing-boost; But. at the saint retires, the idea of the church ii fepiritttattad ; it becoouA a person and, we may say, an ideal, jurutif: penoo. ••ini'* All this while there arc human beings who arc dirtetiag vtniort. the affaini of the saint and thi' church, rwstviog, diatrib«kiag; enjoying the pruduce of the land. They are tba «UBt** ad- ministrators ; they are the reetores of hU chuneh. Sone af them, notably the binhopa, since their powers of adminiikmtiaM are very large, may bo spoken of as landholders ; bat fltill ibe land which the bishop has as bishop is hardly his om ; wbtfi he demands it, he demands it not vi i«« tmwm-, bat «! im sccfano* «ua«.
Very often in Domesilay Book the saint ia the Undiiaii; Saint Paul holdn land. Saint Comtanitne holihi land, the Cowt uf Murlnin hold^ land of Saint Pctnic*. Leofrtaa beM under ' the glorious king Edmund'.' Oftao a ptttaeBkr «► cUtia, or an titAtiiia, holdii land. Sonirtimwi tbv \mud deaeribed as thnt of the Munt, but tb« church b aaid to it* ; sometimes thiit relation in rarened. the Und is the Imad
:^
tat Und *i Mawhim . . . Ufo* into Ciirt« sifsan m CsotvMoltyris* a L U 91 b : ' ia mmImIs CvmOoBm fawrt «M hMft a* dtaoiAa ... to mm^mm * CwitftaioildMltida^' tbU.tlOb: *HM»liHmaMt fa 1 1 1 ill ill ft.
■ D. B. IL 1>: 'AliMB Wwrtnnhm tmM TuntiSM Ssaetu P»Blu kmdu' Wc mlstii ecMByon tlito la iboM ftl Oxiord Mid CutindipB »U«b Ml bo« MagfcWt tmt «-• %ad tbf UU; bsl tbm it 1m* of leaariou •Mvfvitika ia tba sas «b lisa la Uw 04lMr.
•I>,B.i.lU. • D.au.«l«K
• D. & L tOtt *Tsna S. SMlaai A> «Ml4« K^ KflfftkB.*
CH. U. § 12.] Corporations and Churches.
501
9-tn] the church but the saint holds it'. Often, again, the land is spoken of as that of the ruler of the church ; this is trequently the caae when a bi^hup is amcenied : — the Land ia the land of the Bishop of Exet-er oud the Bishop of Exeter holds it. Still this ia no invariable rule ; the church of Worcester, an episcopal church, has laudj^ and St Mary of Worceeter holda them'; and it la not the Bi»hop of Rome, but the Roman church of St Peter the Apostle u-ho holdt^ land in Somerset*. Sometimes the abbey holdv land, sometimes the abbot ; sometimes again a distiucliun ia dniwu betM-een abbey and abbot ; the demosne manors are held by the church itself, but the manors given to Itnightu are held of the abbot*. There are cases (not very many) iu which gi-oups of canons are said to hold land.i\ to hold theui in common*.
Wo have said that the 'church' becomes a person. If, Thechorch however, we ask how the ' church ' is to be conceived, we obtain very various answers from canonists, divines and philosophers. Materialism and mysticism are closely allied. At one moment a theorist will maintain that between the death of a pansh and the induction of his successor the possession of the being held and retained by the walls of the church'; at the next moment we hear of the body or the bride of the Bedeemer. With the mure exalted of such doctrines the lawyer has little concern ; but he should notice that the eccUna parti- cularis which stands on a certain spot is ounoeived as a part and member of the ecclesia universalis, for this theory leaves a strong mark on that notion of a corp>jralion. an univernias, which the canonist propagates. He is by the law of his being a centraiizer, and perhaps will not shrink from the conclusion that, if analysis be carried to its logical limit, the dominium
> D. B. i. 166: 'Tom mcqImIm iv hmdn: S. P«lnu de Bkda l«naU
■ D. B. L 194 b. ■ 0. B.i.91.
* D. b. i. 103b: *Tvm Koolmu de Tftvwtooh . . . Ipw mmIcsU teoet MiddthoM . . . GoiofriduH t«n«t Ac nhhtte LtdcJtonc . . . Ifiet ftea(il««M letM Adnliv . • ■ Rodulfua tonet de abLifttv Tonioberit.*
* D. B. t. 136: 'Oiuioniu LunJonkuM tttMot.' Hi. liO: ■ Caoouici dt OsMMfanI tmoaV lb. 157: -CAnonid 8. FtiddsrMM tcoent.' lb. 317 b: 'Cuumloi lU HaoIod* t«MnL'
* D. B. L 17 : * Cauonici de CicMiro Mient eommaniter.' ' Oioke, II. O. Tl. iii. IW; ' parictw |iow»Miijoem retiuoAnt.' Unil. 'i58:
'bona ipw •oat luet inelosi luntxj, ad ititUr vMantu benditati*. qua* vioem >iw« obUii«i>'
50S The Sorts and Condiii<ms of J/rn. [lUL a
per—
of all church -property is in the pope. At any rale the will at the ecefssia partimdaru, the episcopal or parochial churcb, ii not to bo found wholly within it. It Uvea n life that is not its own ; the life of a ' member' '. TbtcbnrJi Heaowhilt) the lvgi«LH, exploring Code and Digest, wm Z^^ slowly discovering lh« uniwrnlcu and endeavouring to mark it off from the partnership and the group of co-proprioton. Tha canonists seised thia new leaniiug and rarriud it furtlMr. The greater churches had about them a certain oollegiatoMM; there waa a group eomposed of bishop nnd mnoas, nr abbot aad moaka. Here then waa an idea that thf-y wanted. Tbs toeUtia if) an uMvernta§, and the ttnistrnku is ■ |ig— <a That they should go on to sdd (aa Innocent IV. did) that n is pertona Jietn wan not unnstuml. Thi^ organised gmnp was distinct from the 'church'; itJi will might not be the chnrch't wiU. To this we most add that the canonist'^* law ai^Mred to deal not only with wropf; and crimt<, reparatioa and ptiniahawt, bat also with siii and damuaLiun. lu his eyaa a pcnsao «W can not tiin and can not be damned can only be /wrsona Jkta. Bo the imsiwrtAu is not the organised groop, hoi a feifMrf rabftmum for rigbta. Thif theory will easily lead to a dankl that a corporation can commit oithf^r crime or wrong, and laaooent vent this length ; but bulb praolioe and UMOcy rajeoied his doctrine*. The reUtionalup betweoD the gnnp and the feigned subatratum could never be fully eiplainad. The leading idea, however, was that the group was nol. bat only i^'iiaaatcd. and at times (if we may ao apaak) bus- repreaented, the oorpontion. How litUe of eorponlaaMi, of collegiAt«ncfl8, there is in the canonical idea of a porpotati— is shown by the ease with which this aania idea i to a case in which there is no plurality, no grofqx Our phraaa 'corporation sole ' nnly appoan lata in tho day and to be exclusively Eogltah; but tho caTioniaia bad ooow wy near to it <n their traatmeni of the enaea in wUeft an
«
1 Aj to kU thii iM OiMin, D. O. a Bi I L
• Oliriu. D. O. B. Ui. aa. 401. »1. WI17 tlw k* m)M» eonmil tofW »iti oHsmk. onut Alvfty* hm • ihMiM *hm o>M IfMch ut aontnci or wmnit f&l pmmmiiam bw taa attrilivliri n • sotyomlM ih> phifi 1»* hMO aafa. U. k««n«r, bums il<<m «•• k» W tamStmi Is sa wmlmlm, iInhi «m aan««taMS fai Um ihiaiy ihi Au 'Anna* WW ealy wwa 4wt» sr aa ialsHsaiMl Ante uhI aM a ■—>■■ «f ate Mr oTCbrirt.
[cH. n. § 12.] Carporatiotis and Churches,
303
[had bot one cleric connected with it ; the dignittu or the sedes or the like could be personified'. Sere, as in the case of a j * corporation aggregate,' there ia 'fictitious' personality. So the canonist's coq>oration is rather a personified institution than an unified gronp of men. B With the evolution of these ideas the English tempoml Tiu- courts of the thirtecuth century were not concenied. ThecMi^ canonical theoj-y uf the persuna Jicta wan to bear fruit, some ^[2,^^ good, some bad, in the Engli^th common law uf later days ; but ■ the internal affairH of the ecclesiafttical groups could seldom or ^ never be brought befaru the lay tribunalM, and at the time of which wc speak municipal growth had hardly reached that stage at which there would be a crying need for some theory or another of a town's personality. As yet we hear nothing in the seculai- courts of corporations whether aggregate or sole,
tand though we hear much of ' churches * the lawyers at West- jninster have uo oocoaiou to analyze the idea that they are employing. \ From iheir point of view we may look at the churches, and Tb^ first at the parish church. When the rector dies or resigns hi:* church. post there is no breach in the ownership or even in the poHsestuon. It is common to find a rector pleading ' I found my church seised of that land.' The theory is well stated in a judgment of 1307 : — A church is always under age and is to be treated as an m} infant, and it is not according to law that infants lihould bo rdisinherited by the negligence of their guardians or be barred of an action in case they would complain of things wrongfully done by their guardians while ihey are under nge*. Here wo
> OierkB, D. ti. B. iii. 371, u;b tbst this psrHaification of the *ttU» or [dignitaa did not introdtwe a WM»Dd aod iodspendcnt cMegory of jurivtio peraoDS beiiide Uitt oor]M>ratian ; ralber the CAnooiit's idea of ■ corporation mu alreftd; to iniuh the Idea of an inatiUilioD [oot of an orgonlMd bodj of mto] that tb* «or|Kmt« «leoMat In it mi^ht diMppoar aitogttbir vithont ao; MMntial change triwrffming neeaawry. True, h« oonliaaen, the pertooifled digniuu waa not dinotly ffabsanwd oadBr the title of a corporatioo, {this Is jast what tlM happeo in Englandt] bat it was rcfludad as a phenomeaon analogous to a corpoiatloo, and to MOM extent as a variation on the same tbcme. So far as we are aware llic 'oorpormtioD lole' begins to appear en ntmine only in the later Year Books. * riacit. Abbrev. 804 (Norff.). Y. B. 31-3 Edw. I. p. 33: 'lo tf^m «( dedeias age.' Comp. Bract, t 23Ab : < Et oum eooksia fangaUU' vice tniDoria, Aoquihtor per reotorem et rethut per etmdam, ilsac minor per talorem. Et I'qoanivts raohator rector, non lantn cadit eodetia a leisiDa sua. tie aliquo de jtjuo rector setntos moritot notniae ecdeaiae suae, noo ma^U luam ininor it
504 TV Sorts mid Conditions af Mtn. [bk. IL
have a jurifttie pemon. the church, with % luilaml penm M Hi guaitlijui, aod with the jxitroii and thu ordinary to check that gUArdian in hin adminiatrativo acta, for hmdc things the reclor can not do without tiio cumwHl of patnm and oidinary. Had lhi>i jinnciplc bvi^n hrld but, our lutor law books wotUd hava b«cn relieved of wtmc cumbroiu dispaUtioiw about 'Um kwl of fuo ' that a parson has*. Ai The caw of an abbvy wa« 1mi liroplo in th«ory. though tbn
ErinRh. mnniircbioal ehaiiict«r of nbbatial nile dvprivcd aoma apeco- lativt! qupfitioDB of their importancp. The todlmia or ot6<rfiin auccevfJod the saint as thu subject of proprivbuy right*. Bat* at U«8t in the view of the king's ooartav the abbot'* povor waa alnioat that of an absolute owner. Alrpfwly in Dumeadajr Book w« see that it mattora little whether Kstiv stiyi that the land w held by thu church of Ely. the abbt^y of Kly. or the abbot af Ely. True that when landn are given to un abbey it ia xarv Ui find no mention of ' thi; ronvont' or ' thi* monka'aa well aa of God, the Hunt and the abbuL True aiao thai when the abbey kuds are alienated the feoffment ia ORMUy tud to b« made either by the abbot and coDveatv or by the afafaol with the oonaeot of the oon%-esiL For all thia. the temponl eonto i^fl| are ^t to treat the abbot aa the ooe and only naturml pefswn who hafl Anything to do with the proprietary righU of Ibe
abbey. To the complete ezcluaion uf ooatent cr f^lly rojM'eaenta the abbey before the Uw ; he auca aad ia alone'. A rule of eccleHiaaticftl Uw fothiddnv pivlatai diaaipate the lands of their churches* waa ao br enfcaood the temporal courts that thuy woald give to an abbot an for nM»vering Innds that had been alienated by his without th« cooaeni of the ooaveni. But tlua ac&kai was p to the Buooeaeor, not to the eooveiii. Had the eonrMit ita voice, it wouUI have been told that all ita memben dead in law ; and even the suooeeding abbot oaokl nol gal back the land without a law-aoit ; tJse alieoatiow waa
«0MM float awrlatar.' Thai tt b to BmelaB a nsllir W IW fifaoMh b* wbiNl \yj tiM iaHmBMrtftlily of ita nvtar. m (W oa bflfaalf of tiu eliottli : Uw two yhirniw an afoitalMit.
1 Co. ULaoob.aoia.
* Thi mawlfl trai of aa tadapwiani pvlaij; Iki|ite-I»IH bAntlwUw.
■ bm #.#. w. 1, t. a. X. «. 10 ; two «r ihMs
CH. II. § 12.] Corjjorations and Churches.
505
IT
not void'. And so with obligations: the question commonly
takes the fonn 'when and how can an abbot bind biH uuccettdura?'
rather than ' when and how can au abbot bind his church ur the
LConvent ? ' In short, owing to the legal deadnesH of the monks,
bhe abbey property seems to be admiiiistereil by, and re-
[ preeouted by, (ond we may easily pass thence to possessed by
and owned by) the Heries of successive abbots. In the bauds
of the king's justices even thi8 series is apt to break up into
B aet of diacoQuected links, each of whieh la a man. Each
successive abbot might sue for lands of which the church hiul
been dispossessed during the abbacy of one of his prefJecessors ;
but if n claim for compensation iu respect of some unlawful act,
such as au abstraction of the church's goods, accrued to one abbot,
it died with him and was not competent to his successor. Actio
peraonalis iitoiHtin-' cum persona^ and here the person wronged
is dead, for he was a natural person and could die. To make
Hthe law otherwise, a clause in the statute of 1267 was necessary*,
^BThui*, though even in the legal notion of an abbey there is au
^Rlement that wc may call 'communal/ an element which is
Hf recognized by the onlinary forms of conve^*anct\s anil obliga-
tions. and sanctioned by the nile that alienations of land are
voidable if made without the consent of the convent, still this
^Lelement is by no means prominent, and the abbot's powers of
Hdcaliug with property and of bindiug the abbey (that is bis
^Aucoessors) by contract are limited much rather by the idea
of the church itself as the true subject of rights and duties^
than by any principle that would make him but one among
a number of corporators.
The case of a bishop is not sBsentially unlike that of an 1^
kbbot. True that the lands of the see are very often, from cEurcL.
)omesday Book downwards, spoken of simply as the lands of
le bishop ; the fact that they constituted a barony mode such
iguago the more natural '; none the less they were the lands
his church*. And iu the bishop's case it is at least necessary
■ For th* wriu of entr; *«□« ftsMOnu' aoe Braolon, f. 8S8 i Not* Book, 866, 1737: »ve. Br«v. Ori^. f. S80.
* 8tiU. Hkrlb. o. W. TliU oune of our Iitviag oo ■ tmi ' action for movRbiu, ' Ptftdt. AbbrfiT. 10 (temp. Job.) : ' Dominiu epboopui LondoniviiMs . . .
. . . nnuD Mkaiu . . . at ios main qaod partiiwl td biranlun toAin qakni , dt tpboDfiala inc.'
* Tbe nsail form of • royal charter makes this oleNr ; the gmot ia ' to tiod Mid tbe eburob of 6t Morj aod tbe LUbop of Halubury iu)«I bit suooeMon ; '
Hie Sorts and Conditions of Mtn, [sac. u.
id Astioguish the man (rom tho bishop*. All thv RbbotV Uadt are the abbey tand«, bnt a bishop may hold landii aDd goodi which in no wisu belong to hiN aee ; he will hare ' hesn' a> mil as official ' succcasoim ' and may make a will ; oocmnooally be hai a great private fortanc In reoognixiog the potBobUhy of one ntan having, aa we should say, two capacitiBa, a natural aad a politic or ofiBcial capacity, tho law made an importaat step; there are aigos that it was not easily made* ; but the idaa ef th** church as the true omvt of tho epiwxipal lands uada lUs «t^ the easier, Tor in one of his two capacities the DO owm^r but merely a rvctor or euti04. Again. tb«n communal element lo bo considered. The landu of the they were the lands of the biahop, wcfe also in aone wan the tandji of the cathedral cnnvent or chapter, and Uiii^ tboo^ might bo a group of monks dead lo the law, might also be a group of aeoolar canons, each of whom was a fully coupetaHl legal peivon. To a amall extent the law reoognized tiie interest of this group ; without its consent the bishop oooU make ne alienation of the church's lands that would not be mndable by his sucoc«aor. Still the members of the chapter had oo aoCH if the bishop without thmr consent dianpated the wealth of the see, and this shows us that tho pcraon wronged by aueh disaips- tion was not a community of which the biabop was the hMd. but rather the church, an idtuU perHon, wboae guardian Im waa He might do nothing to tho disherison of his ward witbooi tbe advice of his council, his constitutional adviseni iJBMnu^^ There is, however, within the effrleaiartinsi qtban a weJl , marked movement towards in<lividualisin ; it goes oa fnm - centnr)' to century. The clerical groups begin to divide tkor property. As a first viage wo may notsae ihe panaiMinl allotment of lands to specifie wants of tba gnQp; osa Baser supplies tho monks with food, another with rlnthing. obs in some sort belongs to the eeUairr. another U> tha ■Inww. aaerfart, vestiary. Such arru^ments, lhoa|rh they aaaa m have been regarded as aolanui and pennaaent. were mansn
i
*to God uit lU atiSRih o( ftS. Mscjr mi Uahop of tba miA flhank mJ Us ■iiiniwi * |
> D. B. L t8S I *T«im Bobvll BpiMO^ *i iflDBi MitsmlM . . . Bof auairisa aM «• ^
> W« ihsll niam lo ihU palai la fh* msI
JH. II. § 12.] Corporations and Churchei.
507
of internal economy and, at least as regards the outside world, I bad no legal effect: the abbot still represented all the lands ^bnd all the aSairs of the abbey before the law. But some- ^^imes, even in a monastic wwiety, the proceBS went further ;
otU'H when a biuhop's church was monastic, as for example at
PPanteibitiy, Durham and Worcester, a partition of lands wa« made between the bishop and the monk^, and even the ^temporal law took notice oi puch n jiartition ; the Prior of ^■Canterbury became the legal representative of one section, if we may so 8peak, of the now divided ecclesid of Canterbury'. Even in the caae of an abbey auch partitions were Bometiraes made, and the Prior of Westminster sued the Abbot* When the group was not monastic but secular the process often went much further; prebends were creal:e<l; the bishop held lands I in right of his bishopric, the dean in right of his deanery, the W] prebendary in right of his prebend*. Though for eocleaiastical purpoise^ tht- group might be organic, it as an unit had little ^to do within the sphere of lay justice, and, if we may use the ^Bhihr of a later day, the ' corporation aggregate ' was almost ^resolved into a mere collection of * cor|K>rutions sole.'
Still throughout the middle ages there were groups of Caniniuiftl ecclesiastics which, as we should say, were corporations aggre- S^£ ^■^ic and which, being composed of secnlare, were not subject *'*''"• ^^0 tho monarchical rtile of an abbot. The number and wealth of such bodies, and therefore their importance in the history of our law, might easily be exaggerated, bat still they existed, and took part in litigation ; suits, for example, are said to be brought by and against the canons or the dejui aud canons of a church*. In these cases we seem to see all the elements of a corporation aggregate. In the first place, there is per- sonality; the lands, tho affairs, administered by dean and
M
> Tb« Epislolae CantuuieoaM oonUin a. long mmoohI from tb« twaltlh p«titaT7 of the litigstlon belwMn ih« ArcbbiKbop nod the aonks of Christ Church toacfaing a putlUon o( their torritnry. In thi« euc avea Domeadaj Book chowM a putition ; the Arohbiabop hui land and ' tba mottka of the Aichfalihop' ban other land.
■ Y. D. 40 Edw. III. r. S8 per Finebden: PrTDiic. BeeonU, it. 7«4.
' Barl/ oaaes of prebendaries suing ar« I'laoit. Abbrvr. 63 (Uurart); Nol« Bouk. pi. ill. A« to the dtmion of laud bvtwocD btebnp and ebaptei, ■•• AS Alt. t 116, pi. 8.
* Flacit. Abbrvr. 5S (Hereford), Mtion ogaiast the canons of Bvtfold ; Nolt Book. i>(. 493, 499. 054, OBS, 886, aetioav by aod agaiiul ' tba dean aod ehapter'
a m rani '4.
S08
Tlie Sorts and Coiiditiom of Men, [bk. n.
nlhunvl
caaoDa^ muter and brethren, are the lands, the aSun* nf church or a hospital. In tho woond place, the admt fur iht! time being are a legally orgnnixed body, a body which penlures while its mentbens come and goV ]o ihc thifd plant. this body traniouU busineaB as a body by meanit of meeti^» and Totiiiga and resolution* ; the motive puwer i« aa4 (as t^ it is in the ca«t> of an abbey) the will uf a aii^gfo iMa. Our lunryera, however, learnt from the eorlcriaarifl giwipi fi'wiT valimblti Iobkjim than wo might have expeetcd. Tb«> gri'Upe* which were compact were dwpotaeally nilcd. and thi* gruupti which were not do*fpotically ruhid wcrc not wiy numerous nor vary woiUthy and MtlHora came belbce the eowt* as organicod bodies.
As regatds the intenul economy of the eedeaiaotioal graopk fr' our oommuQ law of the thirteenlh century had Utile lo my. Xoi only was this a matter for ecclcniaatical law, but a deep* seated reverence for a seal wrrcd to adjooni aome diScvIl questions which otherwise mubt have come befimg the kiaf* ooQftii. A natural person is bound by his seal ; he has hin—ff to bUmo if fioiiie one ulae, at all eventa soeae one whom he has lru.4ied, put« hia seal to a bad me'. So with iha dmrdi. V Bivlher Walter, the sacrist of St Kduiunda, gets hold *4 the nmI which u-iually hangd beside the holy bier and Lbsrawidl taal* a bond for forty mmrka Lo Benedict the Jew of Norwidi, Umw* ■ » ' nothing for an enraged abbot tu do but to depoM Ih ether WaltiT*. It would jwem that nornwlly tht* abbot kept tht saal and thus could bind the house. lu 1321 it was said ibat
igvlk»iai»
< BndoD'f batt p>Mif sboat Ihb usiiar [t 174 b) raw m hlhii IT Rbboa. frior. or ottwr •oltaiisto no dmsnd Uad tlM nam* of tlwif thontt on Uw niita ol Ibsir •iMraol m»A ui sbboi wm MiMd in Ut itawiai tU,* TWy 4* sat ooont tnm a iltwii (rou mbhm lo sbhot, or pitor Im priw, aar i BKilkui Iba sUwto or pnon laUniu41«lt H^* vboMMiaU Uwr nlrJ/xr im tUlt^at aiU ekmftm t^ m^ i^ trtr. slihoii<b all ma; dk o«« aim Um MlHr, asA their Mad ; jaat m vilh floefca el tkmgfy Uw Sack : thmf 4ta : sot iom om iobwiI lo uuHlHr by ri^ af rlfbl JiipaaJa lurilabl/. /or Uf rifkl ukmtpt I Hi lyi Im IJU cAwvA rA«rvfc 1« i^rmnuni r sail tkb eaa mot in «buMn^ mbatw th» gtA t* w and III I MBit te Ood and ndh a ahana,aad omly 1b a Masks or aaaaaa.
> Olas«. I. *. U: Uritum. U IM-«.
* Chna. JoevUat da Bwhalanda, pp^ i; 4. tt.
CH. IL§12.] CorporcUions and Chwches,
509
a priory in EogUnrl had no common seal ; the prior's seal served all purposes'. A remarkable attempt was made by Edward I. and his barons to protect the house against the abbot, not so much in the interest of the raonkn, aa in the interest of pious founders, who saw theii- good intentions brought to naught and the fmita of their donations sent ncrosn the nea to the profit of the alien. The common seal, said the Statute of Carlisle (1307), was to remain in the custody of the prior and four discreet inmates of the house and be laid up in safety under the pri^'y seal of the abbot. This statute should be famous, for it was one of the very few illustrationa that Coke conid give of his doctrine that a statute may bo void for unreasonable* ness' ; and certainly it would seem that in 1449 the court took upon itself to call this statut-e void, partly because it was self-contradictory (for how can one use a seal at all if it 'm always kicked up?) but nlso "because if the statute were ob- served every common seal might bo defeated by a mere surmise which could not be the subject of a trial'.' From this we may gather that the statute had little effect. ^P The canonists had by this time much to say about thcTl)«povar manner in which legal acts can be done by or on behalf oftiti!*^ corporations aggregate. They had a theory of duly convened ^■meetiugs, and a theory of the powers of majorities. The most ^Rboticeable point in their doctrine is that the will of the uni- ^^verntaa was expressed, not neceRsarily by the inaiar pars COHvetitM, but by the maior et sanior para. Presumably the ajor wBfl also the saner part, but an opening was given for ))iiK'ntient« to represent to the nilent of the church (for after an ecclesia particnlaris was but a member of the ecete^ttt nivcrsalii) that the resolution of the majority was not the I of the church*. Much of this learning about corporate ts must have been fairly well known to many educated iglishmen, including some of the king's judges, and must have bet-n frequently dixctissed in the chapterhouses, for ^^chaptc-rs were quarrelfiome and the last word abnut their ^■quarrela could be said by Italian lawyers. But the intluence ^^of all this doctrine upon Eugli<4h temporal law waa as yet
< r. B. Mich. 15 Edw. n. {. iM.
■ * t>r Bcnkam'i Caie, 8 Itcp. 116 ft; 2nd Inal, 5^7-8.
* Pitt. Abr. AtmuiUe, pi. 41 (apptraBtlf froto aa unprbbKl T. B.).
• Qierbi. D. O. It. iU. 53S, 898, «7()l
510
The Sorts and
n.
mdireot and flubll« and we have ttol the knowladge that wottU enable us bo tnce it.
It is in no wise ntrange that the Englifth Uiryera of t^u afv |^ iiba had not u yet bnuight the ooolotuuttiaU and the teBponl eorporatioas under one heading ; to different wen tbey. Tlua we tee at onoe when wu have luiked the qaoatioa ' Wkaft toropoml groops of men are there which can have an; eUtn to be corporate r* and hare answered it hy Mjing 'Chatiij oonntice, hundreds, townships, mauoni, cities and borooghik ia a word (since we can coin do better tMin) land vprnmumUm! The church, Iha religious order, the hoqotal, niiite te a defiuiu* [>urpo!^ : Tor the honour of a patron ■aint, tbe of the Holy Land, tbe relief of lepem The ideal a penuani'iit idi'-id will expressed in the rule of S( or in sumc fuundatiuii charter. Bui for what pwyusa 6» towutthipN and borougbe exist 7 Where ia tbe pemaoeok win of a city to be found T Again, the group of monks or oiBeaa is a voluntai^' society; of their own free choice and hgr • definite act men booome membeni of chaptem or ooaveols; but. at least uurmally, the membar of a township cau hardly be said to have ohuwn to bo a member; it may be thai be haa inherited a tenement; it may be that be baa boogbt eos; but even in the latter case the main thing that be bougfcl waa a tenfment, not a place in a community. In tbe ohapten and oonTeata stood ncMer to our mwlgu stock companies than to the medieval borougbe. The is a voluntary «(>c)c*ty and haa a defintto aim expraaaad m to memoimnduro and artidee. But the towndnp or tbe beraegb has ooma into being no one knows wben. and exisla no e*s knows why.
Bracton seems to feel — to feel perbi^is imther tbaa to kM* — that among theoo ooiamunities a line draoM be drnwa, ibsS catios and boruughs display some pheouBMnoo, of organic unity, that in not to be found in tbe that the civic or burghal comtnunity is no but an uniweniioM civium ari bwyammmmK fiat at this pemfe DTI moft far a while break off oar ^Baaatmm. The ^mmmb whether and in what aeaae Ihaae hod erwrnnmiitiaa or aimi of them deeervc to bo called eorponU« units oaa only W approached after we have niaminfri their
.
CH. u. § 13.] The King and The Crown, 511
fauctions, and to this examination we mtist devote another chapter. Only at its end and, it is to be feared, after many digressions, can we return to the person who is not a man. That person, if he exists, is implicated in a aystem of local 8elf>gOTemment,
IS] § 13. The King and The Crown.
The legal position of the king has been fully discussed by^^|"»^ historians of our constitution, and on the provinoe whidi they have made their own we do not intend to treapam. Nor do we think that a chapter on the law of persons is the proper place in which to collect all or nearly all that can be said of the king. Still there is a question concerning him to wbidi we are naturally led by what we have recently said about ' fictitious ' persons : — Is the king merely a natural persiui, or does the law see beside or behind the natural Henry or Edward some non- natural, ideal person, some * corporation sole'*?
In the sixteenth century our lawyers will use mystical Bbttoarth language of the king. At times they will seem bent ontheorimof elaborating a creed of royalty which shall take no shame if set Jwo^SL. beside the Athanasian symbol. The king has a body corporate in a body natural and a body natural in a body corporate. They can dispute as to whether certain attributes which belong }6] to the king belong to him in his natural or in his politic capacity. Some of their grandiose phrases may be due to nothing better than a desire to stand well with the reigning prince; some of their subtle distinctions may be due to that love of mystery which is natural to us all ; nevertheless we must allow that there were real difficulties to be solved, and that the personification of the kingly office in the guise of a corporation sole was in the then state of the law an almost necessary expedient for the solution of those difficulties. Also we might show that if, on the one hand, this lawyerly doctrine was apt to fiatter the vanity of kings, it was, on the other hand, a not very clumsy expression of those limits which had gradually
1 See Gierke, D. G. B. ii. 562-6.
512 The S^rU Ohd Cmiditunu of Men. [bk.
becD ttui U) tbo king's luwful power And that it Mrrcd to monijsc moderu with ancifot law. Bat wc arc now to with aucient times, in particular with tb« thirteenth ontnr^. The luetaphysical king, thv corpomtion ttoto, doac not fti cxiftt ; the ditfictiUien which arc met hy hia croation art mJtf bugintiiug to iiriae. J^™|' In the- first place, let lu notice that a great d«aJ oan h»
of ikakiDf. dnnu wilhont any piTBonificatioii of iho kingly offioe. The more niiioubl (if the btiNinifw that ix perfMrtnod id the kioi^* namiT but without his knowludgv difcm not dpnuind any socik feat of juriitpruiii'Dco as the creation of a new pvnoo. Tba urdinary Uw nf iigency is equal to tho OfXMoo. To thsa we may add that tho giilf between the king nud the grealart of htM ftiibjf.-ctA is by no moans so wide as it will alWswanfa become. A grent preliit« or a palatine oarl will like the kinf have many High placed olficen, stownrdH, chiiueKlkin, tn— iwiis ond the like, who wilt do many act*) in hi* iiann*. judicial aobi nod govemmontiU acts, of which in all prubabiJity be will bestf no word.
Then agftin. the righu of the king are conceiTed ■• from the rights of other men rather in degmw than u At the beginning of Gdwud L'a reign thiji i* rx lawyers in their common saying. 'The king ts As yet the term prtrogaUm ii* honlly uaed exeapt ta oiljcctival manner. It sugfcata to iis that the kiag haa right-s which OR) given to others by the ordinary \nw, but thai wc art* likely t4i find that each particuljir right is intfinafad when it is the kinj^'s; the usual definition (if it a Dio—dsd. *for the king is proro^tive.' Foratample, h« hsa tfco nftofr" of a ftiudal lord to wnn!i(hip» and raarriogM, bat in his e theao rights nrv augmented. If tho whole law were writi down, we diould not be sent to one gnat chapter iif it to the law of the kingship ; rather we should see at the « every propoHttion of private law or pmoedozal law oonit to the effect ihut thiH propoaition must be modified btAita il applied to the king's ease. ' lYerogativity ' ia «xi
tCtTOlS
' Y.B.)0-31 Edw.L p.S7i 'Mwyt a»l«D<y wlsi a>y>teay.f
OM ka I* BojF 17 Ht prvrovsurf't p.«*U H07 it yiMipnft par 1«V M' yiwwJpBkw lb Iw* M aovrt ffaeeoln fy * i |k Itt * tsa caa ae^ lalUs aift tf riihl. aiMisI OS ibt mda ot Mkm Ut^ri saJ Jnka —i Bmmy. te mA wiis ikal If oa« CkU. yon lasy hoU la ths oifcin.' ' Sir, a* mo. Itav 1^ k*« W
tB, II. § 13.] The King and The Croton.
513
Such l» tho general conception ; and, turning Ui particulars, TliekUic we shall usually see that the king's rights can be brought "ord^ under it. He Has hardly a power for which an analogy can nol be found elsewhere. If be holds a court of hia tenants in chief, his barons will do the like ; if bo asks an aid irom them, they Knll ask an aid from their kuightu; if he tallages his demesne land, they can exercise a siaiilar right. It is mth difficulty that they are restrained from declaring war. If he prosecutes criminals, this is because bis peace has been broken, and other lords are often proceeding against oflTendera who hare done them ' »haine and (iamage * by breaking their peace. In pardoning a criminal, the king only waives his righte, and he can not waive the rights of others; he cannot prevent a private prosecut^ir from urging an appeal of felony*.
The kingly power is a mode of dominium ; the ownership iTie of a chattel, the lordship, the tenancy, of lauds, these also are ^^^^^" modes of dontinium. We may argue backwards and forwards between the kingly right and the rights of private landholders. This is the more remarkable in the case of inheritance, for, as is well known, the notion that the kingship is in Bome sort elective is but slowly dying'. For all this, the king is con- ceived to hold his lands by a strict hereditary right, and nsj between his lands and the kingship it would be hard to dis- tinguish. This is the way in which King Edward asserts his title to land in Lincolnshire : — ' Richard ray ancestor was seised thereof in his demesne as uf fee, and from the said Richard, because he died without an heir of his body, the right de- aceodcd to a certain King John as his brother and heir, and firom him to King Henry as bis son and heir, and from the Baid Henry to me as his son and beirV Such a declaratioa may seem strange, for nothing la said of Arthur, and iu
pms&tiTe.' T. B. 88-86 Edw. 1. p. 407 : ' L« rot «it aa m lerre si pretogfttiC qil oe voct vta duI iiur loj '...'Pur tw prerogativet^ na aerrioiDs Rii« oastas da
* BnotoD. f. 1S3 b : ' Non eoim poterit rex gr«tiikm faeere earn iDiahft «t damso kliorom. Pot^rit quidem dare qnoJ auutn cat, boo e»l paoem ■oam,.,. qood aateoi Rlicnum otl d«r« aun (totest per an&ra gratiuD.'
* BraotoQ, f. 107: 'Ad hoo antem oreatDS eat «t ahetofl, ut iitatitUm faoiat aniTermt.'
> P. q. W. 860. Bm alK) Nole Book. pi. 199, «bcre 'tiu Toong kitiR,* Henry ■OQ of Henry II., ia mentioaed in the pedigree; 'eC de ipso Hsorioo [aeoimdo] dMMDdit iua iUiiu edroeacionia Henrieo Begi Blio auo et de ipso Boorioo Bc^i Bieanlo frslri aoo.'
S3
514 Tht Sorts and Qmditiam of Men, [bk.
Tlw ktrif '• rlckumn
b*«XJV-
Edwud I.*ft (Ifty the ordinary Uw nf inbprituice would kv proferrcd Arthur to John. But this brings out aDoCbor posnl We may arj^e froui tbo wbolo kiugdom lo each acre of Uzxi The pniblom which was opened by the death of Rkbaid mm ftl that time au unitolvtid queitiou — primogamUi^ mlaa mcv «M yut new— Glanvill did not know how it ahoold bt tf swered '. John obtained the crown. Thi* was a pnoedes! bvour of the uncle against the nephew, and «a mch it treated by Ilnu:t«in in thr> cum of private inhentaneea. nephew may have the butter right, but if the uode la the fiert to tak» poaMttuoD. the nephew can not Miceced tn an aelian 'beoaoM of the kinga caae'.* In Edward I.'i day faiwywa know that there u aomethiug odd in the kiog^a pedigrse : must not argue about it'. 8till the druceiit or tba wai Dot eo aniqae a pheDomeBoo then as it ia iiow-»-day«, No on*, it may be, would have pnofaiawl %o divida Bngkad among sereral coheireaBoa, and we can not lay writh certain that a woman conld have inherited the crown ; but tbe^ whethttr tht> county <if Chenter was portiblr had lataly treated as open*, while in Scotland not tfoly was the claimed for the Maid of Norway, but Bruet aod HMtiagi nipiJ that the kingdom was diTiaible and ahoold ba dtvklal them and BaUiot'.
Even if we find that the king baa hum uuii|a« righta for which analogies will be sought in vain, still Ihcy righu that a natural person can oxereiae. Thus the le^al lawy«fs are bent oo eauMiahing the doetraw thai all jnstideiy powera are derived from the king. In tenaa nwda familiT h^
a
IstUTrtai
* BrsBtcn, tMTb.sn.n7bi Koto Book, pLtM^ •ostsmW. ad. TknUf. p. IS w« And «niiM, UeH I^D^ttk* Ml btrvdiuUs |»in« aol tpmm Dfffotai^ AttI InJUia ati hUL s BiriiMlnr sdda 'rfail ««ai«a«{t da JobMinc nv* aUii, at boo «st M^adtmm Isdbinm.'
*T.a«MllEd«. I.pi7l: 'Note ktDulboM asps •DOOBtn W B07, lot ■rjrt eo« rn an bnf do dmL'
* Moto Book, id. IIST. tXTT. 1V78.
* So* tbo r ■■!■ Seotisa, rnil»i. L TM. Bcws 1
scftHDmt so*srtod • feed tsnlte ni^sn aoa doM. f«fa oamom oaa polML* Tbo iboooy Iha lbs htojiiiw mm puttUa w aaasDd «riii« 10 bio bo*. At ^pifcot tars ba saaitod i^i iW ol laboritsnoo w— faiatpHnaMo aad ibsllW —a tot iha Unfian Asold bs faoad la • Iba k« of aslva.*
^
re. II. § 13.] llie King and The Crown.
515
le canonists, they assert that the king is the 'jndgB ordinary'
*of Ihu whole realm and that all othf^ra who adiuiui-ster justice
are 'judges delegate '.' They have difficulty enough in making
good this assertion in the teeth of feudal claims: but, when it
is made, it doea not attribute justiciary powers to a fictitious
^^erson, it attributes them to a real Henrj' or Kdward. Bracton
^M in earnest when he says that, were the king strong enough,
be would do all justice in pcraonl Par diatant is the thought
that the king may not Bit as the active president of his own
court. King Henry sits there and important cases will be
adjourned if he be not present*. Justices have been fined for
Lrtroceeding in the king's abscuee'. There is Bomethiug anomo-
^Botis in the ascription to a king of powers that he may not
lawfally exercise in person, something which may suggest that
otir ' king ' is rather a figment of the law than a man ; but that
^J> man should be able to do by delegate what he iniiy do himself
^Hf he pleases — there is nothing strange in that. Then again,
' the doctrine that the king's will can only be expressed by
formal document«, sea]e<l, or signed and countereigned, does not
too] belong to the twelfth or thirteenth centuries. On the contrary,
the king's will expressed by word of mouth is more potent than
any writ'.
The rule which in later times will be expressed by the TIm Idng phrase 'The king can do no wrong' causes no difficulty. That vrooit. bnt )U can neither sue nor prosecute the king is a simple fact, ii^s^^,JSn»i rhich docs not rcipiire thot we shall invest the king, with any ''""■ )n-natural attributes or make him other than the sinful man lat he is. The king can do wrong; he can break the law ; be below the law, though he is below no man and below no
^Srsol. f. 108 : ' Diotmn est sapn de ordinaria lariadictione, qOM perUnet wl ti DoaBOqnMiter dioandom wt de iarisdicdouA dolagftU.' 'Bnut f. 107.
" Flux Abbr«v. p. 107 (35 Hen. IlL): *Bt qnia domiaoi Nt «bwitB fuit, ftwnint ibi oiii pand dc oooiuiio domini Uvf^iM, ttnlaomnt Uli <\xii priMwotos lot adiudic&r« dniUaiD o«c oliud lo ftbfleotin ipaiuA dotuioi B«|{i« vel Jnrii coDiilii tot'
* Bot. CI. i lU : writ pardoDU>g Jacob of Pot«nie.
* ItoC C<iT. RcK- («d. PmIjo-hv«} i. 47 U-t>. 119-1): 'Bt doaiotu CuilDftrioDiiB liibert Walter, oliwf juBUiuur,] dioit quod \\tDo ftceoplt ftb or« doaiinl h«glti
\\ma redderet winDam t«rTao...CoDiideratain Mtqnod wttgiR ntluin IwbvUir dominuB Bu on prmeocpit qiuun qood per UU«fu muidAvlt.' NuIa Rook, 38B (iJ>. 12M) : ' u«ltflcatio domini VUt^ per oattam vti viva vooc uatiifm ' alUm probatloDBm excedlt.'
33—2
516 The Sorts and CondUiont of Men, [fiK.
«~.^
^
court of UfT. It is quite oonceirnble th&t he abould bo bv! a ooarft of law '. In ibo second half of tho ceutuiy HiaiD U are already arguing that this u ur <*ught to b« the case'. W is more, a pious legend of Westminster Hall tolU how ancient times oveiy writ of right dnntorol or pomaoij against tho king*.' The lawjrcr who said this in Kdvanl L' day was careful to leave the ancient tiroes indefinite ; probably he was rt-fcrritig to the gotxl uld days uf the OooleMor and, like Blackstuno after hini, saw 'our Saxon aooeBUna* implnaH- ing each other by writ* of eotiy*. But tb« legend grev, and. aa legends will, became more definitu. In the middle of tb* fourteenth century the common belief wsa that down to tfat time of EdwBid I. the king could be Bued like a privato pttaoo, and a judge said that he hod wen a writ beginning Praecipe Henrico Regi AngtiaeK If he had aotn aaytlm^ the kind, it was some joke, some fbfgety, or powibly Ml oi tho Barous' War. About this matt«r there ahoald be oe doubt at all. BmctoD, do more text writer, but an axpariaocsd judge uf the highest court, says plainly that writ* do Doi nm against the king^ *Our lord the king can not ba iiiwmnBsd or receive a command from any one ' — this cemse Etdid a jw^" mcnt of the king's court in 1231'. ' Our ootut is not abore as and can not mmmon nor compel us again«t our will' — tbii comes Rrom a writ tested by Hubert do Burgh in 1SS8*. nit positive evidence is strong; the negative evidepue is ovw> whelming. If Henry III. had been oapaUa of bemg —nd. be would have passod his life as a daJisadanL In Ibe opiniMi of
> 8m Um wiitiOM PUMC* ia BrMlaa. t 171 b.
< 8m Uh vwImiI pHM«0 Id Bnotoe. (. S4 aad ItMS, pv IT. Pw imim girau in Um IntnidiMtkto lo BrMbNi'* Kol* Baak, i. M-SI, «« 4a Ml M»«* thfti ihii wu put oi BiBetoa'i origfMJ im sai |ps««tf daaki wroU iL
• T. B. 8S-C Uw. L p. 471: 'n Msdn fe powMiioaB fimM ban T«r W ml.*
« BL Oooa. Ul. It4; -Iti tk* tIsiM or M inwiiDe wmmt only to ban baoo lawntaWa bgr writ af mtay.'
• Y. B. n Ea». m. t S HUL pi. «)• 14 Bd«. m. L H flMa. ft. B4v. 111. (. n {UUh, pL IS). Tte paM^« tn ffra by
ua
*Bii1— . tab; 'naalMi ab aa (m. a lan] prtater. mm ooattalpaaB,lD«u«riiH|i|iUflatleal.' AimiatHtbi
pvfarnm.* 8m aUo f . SS, 107, 171 K B6i^ 41t i ate Vast Baafc. i, f^ ' Noia Book. pL llOti ■ Hoi. CI. L S4».
bntfafc
•*
H^d
CH. n. § 13.] 7%c King and 7%e Crown,
517
V many of his subjects he was for ever breaking the law. Plea rolls from his reign there are plenty, and in the seventeenth centurj' they were jealously scanned by eye-s which did not look kindly upon kings. Where are the records of caacs in which King Henry issued writs against himself? We can not but believe that Praecipe Henrico Regi is what Francis Bacon called it, an old fable*. To this must be added that the king has power to shield those who do unlawful acts in his name, and Hcon withdraw from the ordinary course of justice cases in which ^^ he haB any concern. If the king disseisee A and transfers the land to X, then X when he is sued will say that he can not answer without the king, and the action will be stayed until tht> king orders that it shall proceed. So if the king's bailiff is charged with a disseinin dune In the king's name, the justices will indeed take a verdict about the facts, but they will give no judgment Rege incongulto'. Still all thia 'prerogativity ' is compatible with humanity, and when the king appears as a plaintiff or submits to be treated as n defendant the difference between him and a private person is less marked in the thir- teenth century thaa it is in later timea When he is a plaintiff MM] he will often employ one of the ordinary writs. A defeudaut, instead of using what even in Bracton's day was becoming the proper formula ' I can not answer without the king,' will some- times buldly say ' 1 vouch the king to warranty '.' ' In the pleadings and proceedings of the king's suits,' exclaims Bacon, ' what a garland of prerogatives doth the law put upon them ! * ' ^^Ttiis garland is nut wuven all at once and some of its flowers ^■vrere but buds in the du^'s of Ucnry III. But our main point ^B must be that there is as yet little in the law of procedure to " fiu^est that the king is other than a natural person, nothing to suggest that he has two capacities. He enjoys the same privi- leges whether the matter under discussion is what we should
n
mi]
BuoD, Cue di Rege Inextruulut (Works, eiL Rpcddiog, tU. 0B4) : ' (or tod will not rrviT9 old UbXea (u Jastinuut calU Ihingi or that natnn) Praecipe Benriro Regi etc'
' bnwton, (. 171 b. N'oU) Book, pi. 401. UOf^. 1103, 11S3, 1141, ISSIl, IMS. 1766. t. B. 8<MI Edv. I. p. 173; S8-85 Edw. I. p. o89. Beg. tinv. Orif.
1-a.
* Not* Book, pL 1188: 'TOttt tnde id w»nntam domianm Begem.' Ctut- trm«l pi. 398 : ' B«x debet «i wuvntiEare ai «uiu mmI Ulttio TOCftn «d w&rui- tusi lieut atitim botoiiiom.' BinctoD, t. SaS b) Tt. B. 31-S Edw, I. p. 3S7.
* Bmvu, Works, ed. tipcdding, vii, CDS.
118 The Sort* and Qmdtiiona of Men. [bk. XL
I kttJ
I
\ t
I
r« conv to •bonU M^V
call * aa act of state ' or wbuihur it U n private bargain. Aadi nfWr nil. tho f^ndrnt of hiif immanitk>« is do attotnaly. H* can uol he ootn|K'lltfd to aiwwer iu hu owo oouil, bul Ihia ia true of every putty lord of every potty manor; that Umt* happens to bet in thin woric] no coart abi>T« his ooort is, vu may say, an scddent.
Then again, no lino ia djawo. at least no marked Uov, between tfame proprictiiry rights which tho king has as kinf and LliuHo which ho hju in hin {irivato uo^iacity. Tb« nalMS, the state, i» not pcraonified; there are no lands which beleog to tho nation or to the «tat«. The king's lands are the king's landji; the kiugH LrtfOKuri: ih th« king's treasure: thecv is do more to be said. True that a distinction is nailv betwcea * llw ancient deroeOM of the oroiro' and lands that have eenv to iho kiug by luiwlem tillu. l^o main import of thin is to be found ia the titrong sentiment — it is nlher ment than a rule of law — that the ancient deiM be given away, and that, if it be given away, some fotoru knf may resume it*. But even here private law allbnls or has afibrded an analogy. It ia only of late years, only skdob GlaBriU wrote, that a tenant in (be simple has been able utterly to disappi^iiii hiN cA[>octaiit huini by lUieoating kis land; his pamwr aver land which he himaolf hiv purchased hu been greater thss his power over lands which have deaoendad to him and which constitute the nncicnt demesne of his fitmily. The king, whs >i^ asaerte a right to revoke the improvident grants of his smuuslia^ is relying on an antique rule of fiimily law, rather thaa Ufo^ any such doctrine as that kings are tmslees fiir the oattaK. The idea that a man may hold land or goods in twv dtfbml capacities is not eaoly fonned.
We may see this even in the eodeaiaatical region. Thw^gh here the pecaooality of the saint or of the dranh tt hr* thv distinction easier, still in age after age psopi* find maeh ifift* eulty in marking off o65ce from property, and in wt/pmn/thf the lands and goods which a man (a^jojns or naas haosnte fas is the ruler of a choroh from those which, as we obiMU as: belong to him in his private capacity. On the is hard to prevent the Meleaiastical beoeBoe fhm
1 Brittoa. Lttli 'Bdii hsI as pomlai ika aUmv saraaaa as 4s loor iwsK^ ^ as ssil raydkbl* par Ibm
abovB, fu saSa
CH. n. § 13.] Tlie King and The Civum.
519
HAM J
I
•
hereditary. Ou the other hand, it is not readily admitu^d that a bmhop ur a parson caii have property which is in no sense the property of hia chui-ch. Thia difficiiHy it \n which prondes an excuse for that inUirferenco by the king with the goods of dcAd bishops, which hisloriaaa are too apt to treat aa suffi- ciently explained by mere rapacity. An abuse we are willing to call it, but there is au excuse fur it. On th« death of the bishop, the king is guardian of the tem))oralitiea of the church ; the dead bishop's gooda are the goods of the church'. Thia idea is well brought out by what is told of St Hugh of Lincoln. He did not approve the new custom that bishops should make willa. Still he consented to make one lest otherwi.<te his goods should be seized by the king. Evidently the saintly bishop thought that his goods were his church's goods ; he mode a will in order to defeat, if poesible, the all too logical, if impious, deduction which kings were ready to draw from this pious doctrine*. King Stephen bad to promise that he would not interfere with the test-amenta of the bishops, and that, on the death of a bishop intestate, his goods should be distributed for the benefit of his soul by the counsel of the church; but then be was also making something very like a renunciation of his right to a profitAble guardianship of the temporalities of the vacant see *. His successors seize the goods of intestate bishops and expect bishops to apply for a licence if they want to make wills. When Archbishop Roger of York died in 1182, Heniy II. enjoyed a windfall of £11,000, to say nothing of the 8po*jns and salt-cellare. A verj' just retribution, says the dean of St Paul's, and quotes from his Digest ' quod quisque iuris in alteruni stata- erit, uti debet e4xlem iure,' for this Roger had obtained a papal bull enabling him to seize the goods of any clerk in his diocese who, even though he made a testament, did not before his death distribute his goods with his own hands*. The pope was just as bad aa the king iu this matter. lu 1246 ho proclaimed that the goods of all iutestuto clerks belonged to him, though in the next year he retired from an indefensible position'. No doubt
* Sm Loduire, MKaoel dea tustitatioDB, p. 40. Thii notion begsU Um Iw wpotU, droit de dipouiUr^, at oonUuraUl hw.
■ MB«tu Vita S. augoDU, p. 334.
■ Beoond Chsrtw of BMptun : Stabba, Salaot Ctuirtvr*: HtalntM, toI. i. (Chait«n) p. S.
■ DiMlo, a. 19. He oitM the robrio of Dig. 3. 3.
* MaL Par. Chron. U«j. tr. S^2, 004.
tfenai ifavcmvu.
the cBDonuits coald distinf^uh well cnou^ botwvan tbe pn> ptstj of Um church nod thu property of ib« preUie ; <iiU w« can SCO that this i» r lAwyorly distinction; a auntly hirfinp. likc> Huf^h of Lincoln, will HCtmt it in thv intpnst of his chardi, a covetous bishop will make light uf it in the iDt«rcflt of him- self and bis kinnfolk, a needy king will know huw and wb«A A can be pnifiubly ignored.
If these things be don« within the coclwiastica] wfhmm whero dead saints still art* itctivt?, where the eanoo law vith ita Roman tniditians prevails, what may we not fizpvci in tha temporal sphere 7 Far eaner liar us is iC to penoaify a cfaoidk which actually holds the body, and is guarded by the mmI, of the saint, than to peiwmify a nation, a state. N*» medieTAl king is tempted to say ' I am the state,' fur ' i.^ turn Matms ' would be nooaense. On the other band, no one will asy to him ' This Und, though it may be called your Land, is roUljr ibre Uad of the stale.' And so the king's land is the king^s taad and there is no more to bo said about it. It should be remenbcrad that in our fully dereloped common law the king, or cmwii. m the only corpumtton aole of a lay kind. The ienpofal Uw of the thirteenth century will aid us with no ualogjr if wb wnoM dittiinguiiih bctweoa the kingM private property and Us official prupcrly. Often enongh has office become praperty, or mhsr (for this we believe to be nearer the truth) rights which oUsr and vngiuT law had reganlod as half official, half pmpriHaiy, have bL*come definitely proprictaiy. KarJdnms aad belong to thta oalegoiy ; but we eao DOi dirttaguiah the lands which th« varl has as earl and thwo which he has s* man. On the other hand, those offices which hat« aoi falisn into this category do not oompriae or carry with tboBi aaj proprietory rigfatj* uf uxiy kind. The vhrieralty is aa oAee, bal the shehiT as ahwiff has no lands, no fooda^ What is mora, trosteeahip, at all •vent* a perma&eot tnuteeafaip. ia as yol unknown to the law and can supply u» with ne aasJogy. Ke fimn of legal thought that ijh at our disposal wiD imMm ■■ !■ ■eparate the lands of the nation from the lands of the kn^.
1 Wi nsfci our bhnh spprasak to iW inwaatftiiiiis W » i^itMsl ^m wb«a mmm oOmt sttsMfN Is pnwribi far tarn m ^^/litltm, la 1 Ma. L a flutalUa o< BMBtarootb ii chaind Willi boUb« Mtote pfaw vkiM, ^M^ to tjtBtnX Uw, baiaac lo iW Airifl. B« miOmi. > I lMia4 ik* isM «miI» ^m^ or lUa esw«o,' Hm BoMhwuagb «uito \b imislirf, DM lUs te aM a fniitinl idM. NorthUBbwUiid Amu* RaiU. 9U.
CH. II. § 1 3.] The King and The Crown..
521
But at least, it will be tirgcd, the king c&n oot devise the I' Um kingdom by his will No, but the general taw is that a land- AtiMublar owner can not devise his land by his will : only God can make an heir, not man. And, after all, this impotence of the king has not been very clearly demonstrated. If standing in the thirteenth century we ask why on the Conqueror's death Rufua became king of the English, while Kobert became duke of the Normans, it i^ not plain that there is any better answer forth- coming than that the Conqueror, like other lords who had lands on both sides of the 8ea, [uirtitinnefl hi» estates among his sons. But, as already said, the fitct that land can nut be devised by testament is a sufficient reply to any who would draw distinctions between kingdoms and other palates. More- over in the middle of the thirteenth century it ia by no means so clear as a patriotic Englishman might wish it to be that the king of England does not hold his kingdom of the pope at an annual rent by virtue of John's surrender and Innocent's re- grant'. And, as we saw above, if the king ought to consult his barons before he grants away any large tract of his kingdom, common opinion has expected that a great baron will consult his men, or nt least profess to consult them, before he makes [p.U6] large grants out of his honour*. As to the king's treasure, it is the king's treasure and he may do what he pleases with it, though very likely his successor may find an excuse for dis- r^ardiug some or all of bis bequests. Edward IIL in his will, draws a marked distinction between the debts that ho owes as a private person and the debts that he owea as a king; his executors arc to pay the former, while the latter will fall upon bis heir and successor. We shall hardly find such a distinction in earlier times'.
As yet no king has succeeded to another without there Thv kins
am dje.
' 8m U» pTOtMti of ISOl and 13M; Foedets, L 090; KoUa of PvlUineol, Ei. S90, Stabbs, Const. UisL. §700: 'John's MumiMler and mbaeqaent boaujjs fint emt«d the shatlow of « fi>ii(Ial rnlaUon, wbioh wm re«ii«cU)(l hj Baory III., bat npadUted by the luirliaRUinU of Edwanl I. am] Edward III.' As to Ricfaard'a tranuotioiu aith the Emperor, it wmn casj lot an EnglUhmau to bold Ibftn *Toid for duress'; tlu; wara 'ooatra leget, ooatra eanonec, oontrs boDoa moraa*: Oioeto. u. 118.
■ See above, p. 84S.
■ Will of EdwftH in., Nicolas, Rojra] Wills, p. d9. He distii^iiubM iMtwMn * daUw ooRtim oontGinpUotooo puraonao noaUao oontracta ' aud ' debita iMlOM itBBl an goerranun noetraram oontxaaCa,'
522 The Sortji awl Conditions of Mm. [bk. n.^
being on inUMrvgnam. Id the aui« that u just hAppemi^ whan w« mnko our iturvtiy thiit intvm-gnum U verj abtft,! Edward I. Ikr %yt%y la the Holy Luid began (o nign on tbo' day. not of hi« &ther'8 death, but of hii fathez'a huunal*. BMj there U here uo legal fiction, ootluDg that dcraamla aoy mya-j terioas phiase about the kiug'n immortality. £dmud 1. raat^' reigns, before ho in crowned, and Edward 11. will really raifn mi Huon OM hi.<4 father bw oeaaed to bnrntbe. Then u cxcuiw hero for a fiction than then* is in thu caae of a baahiipii also there are fewer materiala ready to the haod of titc Ktructive lawy^. The bishop's throne moat be nwant a( 1«mI for a few days, and meanwhile the otentally infant church haa other guardians, a guardian of tta temporalitiea, a goaidiaa of its spiritualitiea. But Ux^ing back a little way lo oMe* io which there has been an interregnum of conaideffaUe datmtii«i, we sec that lawyers have not been prepared to atop tbe gap with a roetaphyaical king, the personified kit^(shi(i Wh«n (he king dies, his peace dioH, and thcru is no king's peace nnlil another king in crowned. The king then who has a peace m a mortal man. 'Hie evil amsequenoee of this priociple may hav« baeo MMncwhat U<«Mned by a proclamatiun of the peace of go* who, thongh ho is not yet king of EagUod, ie by b««iktary| right lord of England. Still such a shift t«lb u that iIm mkf^ king known to the law is a natural ponco'.
A case haa lately occnrrvd which, id we etty think, masi have pat tfa« okl theory of the kiogriup to a A child bat nine yean old was onmned. Tbe Heniy UL was an important evant. It was^ if w« wmj speak, a two-edged erent. On the ooo hand, it nrmflfMsl Aal doctrine of pure hereditary right ; it applied to th* the oummou land law. On the other hand, it showed king capable of ruling waji no neeeeaity ; all that a king do might be done by a regent and a oottocil in the mm* af Hi inlant How William Marshall beoanw * netor regie M r«fa' is in this ooiitext a question of no great iiit«»estw Than wis a
> rUamj 4M Uta OB VTaiimdsr. tAmmri^ pMS «M WMlB*Nl«r DsU mt\j oa Tlrandij. B«t te 4Ma Ui n^ •aadsy, on vhUb dsy bb fstlNr wh huM s^ Iht ««»««
■ BdMl nsBB of As OnwB <Sda. Sm^, 9k M. U Jote't imf u a, ■Uigw s sdsM nowmhIsJ Asriac lbs Ists Hm Kli« Ibia Doka of KormssAr sad Lotd sf
CH. H. §13.] The King and The Crown.
523
^^ grave national crisis; there wa8 civil war; a foreign enemy was
^■iu the land. Those barons who had not rejected John did the
^■obvioiu thing, chose the obvious man as their lea<)er. It was
^V not a time for constitutional dii»ertations. What happened
during Henry's minority is of greater Rignificance. In litigation
which teaches royal rights the ordinai-y rule of private law is
applied. An action for laud ia brought ; the pentou in posses-
sion alleges that the king is his warrantor; the action must
remain in suspense until the king is of full ago'. Then, when
^^ Henry wrm of full age, he insisted that all charters granted in
^HHa name (luring his minority required confirmution, even the
^B Great Charter and the Forest Charter. He did this we are
^V'told by the advice of Hubert de Burghs To exclaim against
^H his fait hlt^ssu ess, his greed, his iinprudt;nce, is far easier than
^■■io discover any then admitted principle of law which would
^^ wmdt^mn him. Suppose that his guardians have impi-ovidently
^^ alieunt^d some piece of his demesne land, is he not to Iwve
^■the ordinary right which every infant enjoys on attaining his
^^ majority* ? Donations, we might say, are one thing, laws
another, and Magna Carta is a code of laws. But where and
.eoB] how could the Uno be drawn ? In form the Great Charter was
a charter, and between it and the mere gift of single knight's
I fee there was a long and gently graduated series of charters
' granting 'liberties' of various kinds to individuals and to
larger or smaller classes of men\ A claim to revoke what is in
I fiict a body of general laws is one which will set men thinking,
I and may lead them in the end to some mystical dogma such as
I that the king is never under age; but no such dogma has as
^■yet been fashioned. The king uf the thirteenth century is a
^Hn&tural person and may be 'under disability.'
^H In coaree of time we see the beginnings of a doctrine of Omna n( a ^^poblic or official capacities, Lanfrauc hints at it when he^JSS!"'
1 * Kot6 Dock. pi. 1500 (ii.D. 1221): 'IxKitwta i»U mnatMBl td utaleto domini
B«Sta ut tona Ucwt iude ToIanUtem ttiftm.' Ibid. pi. 10S9 (a-I'- 1238) : ■ lodi.
I BoiD ponitur in retpeelom tuqna ad wUtem domioi Bagia.'
I ' M*L r«r. (from Weadovn) iii. 7&-8, SI, 133.
I ' Not* Book, [J. 1331. T)ic king of ScoU pvtiUona for a wardalii)), orging
I fat bU fftTonr KnDotLing thitt hAppeDi>d daring Uw tnlnortly. Hcnr/n ixmnQil RpliM thftt this tuppened * tempore Uaberti da Borgo Comitu Kantiu qui unicmi fait et (amiliuii ipri Itogi ScotiM «t qui ttgoom AwgllM bkbmt in muia vtttk.' ThvTvforfl it li of do avmU.
* Tills point will be farther diseuwed to oar a«xt ebapt«r wb«re w« ditl with borough fibATt^rft.
tit*.'
524
Th^ SarU and Conditions of Men. [bk. IL
suggeati that tb« Conqueror, though be nwjr not anwl tW bufhop uf Baj'eui, tuAy lAwfully ornut the earl of Kent*. Suva progreatf has been made before the end of the thirlMnlk oeDtur)*. In a carefully worded judgment our king's «oart dftdarM tltat the bishop of Durham * ban a double atatui. to wit, a tcmpi^ml and a Hpintiial Hiatus.' The archbubop of York faaa «xoomniiiitiait(Hl thv bixbup for imprisoning soma of bit nialii^ poliuui's men. But to inipriikou men belong! to tlM bMhop's temporal status. Therefore the archbishop hna exooainHauflafted Dot his suffhkgan bishop but the king's tenant in cUcf aad must pay a fine". A hUU mure interesting case eononna Kiag Edward himnelf. Ue in his father's life time was holding tkm viU of Stamford and waa oxeiviaing in it the fnuchiw knowft •■ the return of writs. He granted the «ill to Um osri of Waranaa Having become king, bo demanded by what wanant Uw aart claimed the franchise. Th« earl replied 'By your own gift; yuu gavo me all that you bad in Stamford.' The king's counsel then pleads that Edwanl himwlf hod no iitla to tba fniiichiw, and that, being king, he ia boond to laaoma ail ri|^hia uuliiwfully detached from th« erown. evon thoogfa ha UhmIC while as yel no king, was the guilty peraoo. * Ha is oav af another estate than be was then and is qtiam another paa««.* The earl combats this theory — * He is one and the aama pvasn {p that he was when be made the gifL' Judgment is givtn 9tt the king*. Thus the idea of dual petionality may alreaii prtn'nil when the king relies upon it. To enforce it wbon would 14:11 again.Ht hift interests would be a balder aa yet this idea looks veiy new. If there is to be a tion, lomethiug material, ■oroething as lisiUs aa a cfannh, be personified.
We oao aee the beginnings, but only the lia^iiiiiingi> of a proceas which personifies the king's ' crown.* And haaw it amy be remarked that even in our own day this prooaa baa
* 6m«W>v*, pi. Ut.
I Betti «C PuSoMBl, L 10»4: *l|laapw Das
«« impnaociammta jmr ™**f^f
sgsvan kt J
My alreaiij^H it wbsn i«|H task. Indfl
■ p. Q. W. tt^-m. Tfconiiwi iW ldi«*i slliriaa enndldflali qua irioa latt « qtad sMaa -Csa «l M4«a v^mam «tt Ian In
mmmuAkm Uwrninm EAwvim'—tUmt ttihmii it tk* LonI Uwsrd ol lonwr tii
CH. n. § 13.] The King and The Crovm.
525
e 80 Cax as to modify the formal language of our law. Of couree lawyers and judges and even statutes have now for a long time spoken of the rights of the Crown, have spoken of the Crovm aH doing this, that, and the other act. Still in the strictest language of the law, the language of pleading, the Grown does nothing; it does not tme, it dues nut prosecute ; the king or queen does it all. A personification of the crown has been required, not so much by any purely 'juriBtic necessities/ as by constitutional doctrines which, though they may now-a- ^ days be as well observed as any laws could be, are none the less ^K&o laws. Under the cover of the crown — that ' metaphor kept ^^in the Tower,' as Tom Paine called it — our slow revolution is accomplishing itself. In the thirteenth century this golden circlet is beginuiug to be useful. We first hear talk of it when crimes are committed, not only against the king's peace, but also against ' his crown and dignity.' Then we hear of rights which are ioseverably annexed to the crown; they indeed make the crown, for the king's crown is to do justice and keep the peace'. This is pleasant doctrine for the king, if it is also a sound doctrine for the state; it enables him to resume ' liberties' which have been alienated from the crown and check the growth of seignorial justice. In the fourteenth century it ia possible to say that the crown, like a church, is nlwa^'s under ago and that no lapse of time will bar the demands of this .WSlquasi infant". But as yet to distinguish between the crown and the king, between the king and the man, is to teach a treasonable doctrine. In Edward Il.'s day that doctrine be- comes prominent and charges of holding it are bandied to and iro. The barons who arc leagued against one of the king's- favouritcs. Piers Gaveston. are said to hold that allegiance is due rather to the cnjmi than to the person of the king. A few years afterwards the borons who are leagued against another of the king's favourites, the younger Despenscr, accuse him of having held this very doctrine, and, owing to their success, it becomes for all time, to use Coke's phrase, 'a damn- able and damned opinion.' But all this lies iu the future*.
' Braotoo, f. 65 b: > EbI imim oorooa t«^\* ttane iasximua «( indicium «t- I taun piooni, et sine quibus coroas oonaister* qod patMt, noe tciutr*.'
' PboiL Abbra*. p. A30 (15 Edw. IL): 'He iii» florooae nus etc., qiuw
■par nt ()iuu minoHa setatia.'
s ChionidM of Edward L lod Edvsrd LI. ad. Stnbba, 1. p. 153, U. p. 88, 85 ^
526 The Sorts and Conditiotu of Men, [UL.
We ATO not coDieoiJinf; that the pruprietarj ibcMj oi kingHhip— if we tnay givu Uui uuue tu Uw dodriaa we have bo«n eodeftvouring to expound — in the most ancient tliMfry, or that it ever fully fipremes all the (acta ami tKongkla and fueltugv which dtitormine what a king ihall ba and wbat a king ehAll do. I'mbably there haa been a one-aided de?elop> mont of thoae olemt*DU in the ancient ideaa which bar* found capable of legal treatment, while other vltrmmtA been forgottvn or extruded from the uphtTO of law. Tba Conquotit of England, the trtrung moonrchy, the tynmny (if pk'iuM* to call it t»o) which was founded by the Noman k'lDfct, have favonnnl thoau and only thoae notioDM wbicli oxalt th« king and givu him a prupctrty in hia ksagdom. StjU Iha pbcnomcuun in quostiou is not purely Eugtiah and can not W explained without rofor^ncc tu the hiHtorr of jqriapnwfaw*. The elementa in the old tribal kingship which ninrivcd in iha ttrngglo for Giietence wore thoeo which in the tlwn alato af legal thought were eApnblo of being aooamtely espnand and dcfinitl. Fur vngue ihonghtB, for ha.lf thonghti^ tha lavynr eaa find no place. What, for example, ia he to make of a title to tho orown which 'w partly hereditary, parity elective f tht» elective element can not be developed, (or no one ean 6tAm who arc the vivcton, no ono aa yet haa ralea aboot the powen ^ of majoritiea, Thcrefure the elective element nunt pwiih «r beooroti a more form. And i» with tba king's laoda, Eilll9 thay belong to him or th«y baloog to ■ome othar penonn. Say for a moment that they belong to tike how can such a ductrine be enCoroed when aa yvt we have ne idea, or but the vagneat idea of offidat '**f*^»***. of liMlf •hip, of corporations aggregate and oorpofatione sole 1 We de not wish to prejudge any debatable queitioiia of ov^ history, but that men had clear ideas abont thav the tenth century and lost them during the twdflh and thif' teeutb. those agea of brilliant inteUoctnal piogw> ia Dot to be believed. The ono general resoU to wUdi we the i:nd of this long and variegat«<l chapter a ibat evM a hmrton'i day the nnmber of le^ id«a is vwy Mnail saJ public law has hardly an idea <tf tta own.
SUtBM of lbs fiMlm, 1. tM( CsMs** Cmg, 1 Oikifa m^ Ui ^ sk» H' r* SM|m#|| BUmhm PttMm, 17 Q. & D. M. ■ Otefef. D. O. B. a. ftM^
CHAPTER III.
JUBISDICTION AND THB COUHUNITIES OF THE LAin>.
8] In an expoeltion of any system of law, aooieiit or modem, a Vimodot large space must be given to the compositioa and competence inritJettoB of courts. In a statement of modem law, however, we should ^^^^ hardly place this topic in the fore&ont. Coarts exist for the purpose of de&ning and enforcing the rules of substaatiTe law. But when we are dealing with the middle ages, we can not thus regard what we may call the 'law of jurisdiction' as merely subsidiary or 'adjectiva' It is intertwined with the law of property and the law of personal status and this in many different ways. In the first place, jurisdiction is a pro- prietary right, or the subject matter of proprietary rights, profitable, alienable, inheritable rights, which are often bound up with the tenure of land. In the second place, jurisdiction is one of the main ties which keeps society together; the man is bound to his lord by this as well as other bonds; he is not merely his lord's man and his lord's tenant, but he is also his lord's 'justiciable'; his lord is his 'sovereign'; he owes to his lord not merely service but also suit; and thus once more the law of jurisdiction is implicated with the land law*. Turning again to the masses of unfree men, we see another connexion between jurisdiction and ownership. If we examine the rights of the lord over his villein we find it diHicult to decide where ownership leaves off and where juris- diction begins ; we may have to say, either that the idea of ownership, the master's ownership of the slave, has been tem-
lai pered by the idea of jurisdiction, or that rights of jurisdictioa
1 Y. B. 18 Edw. II. f. 571: Me Priour fait son jostiuble.' Stet. S8 Bdw. III. e. 11 ; ' celai qe cat Hovereign de la ville.'
528 Juriadictum and Commwial Affair*, [i
Iba
an bcin^ converted into ri^htN of uwnerBhip. Aguo, we Ih' to form tbu uuliou uf difliLTuui spbcros of jarudicttOD. uid must colour our troatment of impoitAnt primt« rights. It not enough to say that n man has a right in land : w« add thnt it is, or is not, a right protccc«d by th« lung's eour^^ fur although it may be ignored there, still it may \m profotsd by other ooart^ for example by the court of the mawir. N is this tho result of a mere division of labuur such •■ the pTMent day may nod petty taam to petty tribunak. TW various oourtH have their roobi in varioui principle*, io rarie«i rightM, the righta of the lung, of tho oboroh. of fvodai loid^ of ancient communities. Lastly, we have boea eonpelbd •• break off our discossion of the * land oommimitiea,* aa «« haw cnlltMi them. lK.*cauwi wo could not deacribo thr>ir nrj;«OMtfMi without speaking at some length of oourts, thoir constitntiai aad eompeCeDce^ In the main tho orgaoitation of theae eaama* nities is justiciary ; the ahire has a court, the hoodrvd a eosrt, tho manor a court, the bomugh a ct>urt, and in a large maaaora it is this that makes the shire, the hundred. tb» manor; ihs borough into a cotnmunitag. Thun in speaking of joriidieCidtt we shall naturally be M to duicribe the ootara id Ibaa munities and to consider why some of them are, whila of them ore not, attaining personality.
If we leave out of sight the courts of the cbonb Kod cenlratc our attention upon secular jusiioc; we sae a4 sight n certain thooretioU nntty. Wbck, asks Bractoo, ovglrt to be judge in l<>mponil cauKus f Tbe king; n«i one eliB>— this is the meaning of tbe kingship, that tho king shoaU da justice to all. It is wont of time and strength that snlhiaisai aad oompols him to dcputo his dulios to oibera. AU Ifipwal jndgea arc his delegatca\ But Bractoo w«a a mymi JaatioB. and, though he could easily show that he and hi* Msiwt derived thoir authority from the king, ho down not aitevrpi to prove, and could hardly have auoeeedcd in pwvi^ tfeaii oven in legal theovy, all the jnrisdiotional powen of tb« fc«M >^ lords were del^ated to them by the king. The law of hia line is obliged to distingniah tbe 'regatttios' that arw bom tho powen that have another origsn. Easier mtmM it have been to show that aa a mere msttar U fact, deaptte all theorieo. despite the words of the OtwU Ghattar, iJm b^s * nisHiia, 1 lOT-S.
Jtt;
CH. ni.] Jurisdiction and Communed Affairs. 529
court was mastering all the justice of the land, waa snb- ordinatiDg to itself the feudal courts, was making them inaig- nificant ; but in so doing some startling contrasts between fiicts and theories would have been disclosed. Even the ancient courts of the shire and the hundred, courts which had no lords, courts which were presided over by royal officers, might have occasioned doubts: — could the suitors who made the judgments in these courts be called the king's deputies? Bracton takes the easiest of courses, that of ignoring diffi- culties ; he asserts the broad principle that cdl temporal juris- diction is the king's, and leaves us to discover how far either &cts or legal theories can be brought under ^his principla Still the assertion is important ; the principle is not the mere speculation of a latryer; it has been making itself good as against other principles which in part were older, in part were newer, making itself good against tribalism, communalism, feudalism.
It is not, however, with a discussion of this dogma that all BebaaM of 'ordinary,' %.e. non-delegated, jurisdiction is in the king' that we can begin our investigation. We must look at the courts as they exist at the close of Henry III.'s reign, pre&cing any further remarks by a summary statement, w}ndx may show the main outlines of the system, though it will neglect ex- ceptional cases.
For the purposes of temporal justice England is divided DivWou of into counties ; the county is divided into hundreds ; the hundred is divided into vills or townships'. The county has a court, the hundred has a court, the vill or township as such, has no court; but the vill is an important unit in the administration of the law. Again, the vill is very often coincident with a manor and the manor has a court, ir.] The county court meets once a month. It is presided over Theconnty by a royal officer, the sheriff, who in some matters is assisted and checked by elective officers, the coroners. It is attended by suitors (sectatores), certain freeholders of the shire who are bound to attend it, to do suit (facere sectam) to it. They are
' Dracton, f. lOrt: 'Dictum est in proximo de ordinaria iurisdictione qaao pertinct ad re(;em, coii»c(iuentcr diceodum cat de iuriadictione delegata.'
' Tills is not Htrictly true, for the vill may well extend into two or three hundreds and into two counties. For some examples see Committee on PuiBh Boundaries, I'arl. Pap. ISIH, vol. 8, p. 225.
P. u. I. 34
Tlw
bsadral
ooort.
MinatU
ke huDdM the lovft.
■ait to te^^l
po«r«n w*^V
580 Jurisdictioti and Communal Affairt. [mc U
the judguH or doomiiUMUi {indicatort*) of the oourt. U coMr- taisB Mmv uF ibo initial proceedings in cnminiU cmw^ bat fcr the more part it is & civil, non-critnioal ooart ; it baa an ongiiMd juriiKlictiiHi in pvivonRl actiotui ; rMJ actioiu Odn* Id it whm the feudal courtii make default iu justice; euwswv MC»t down to it for trial by JU17 from the king's oourt
The hundred court meets once in three vscksi. NorauJljr its preaiilenl should be the sheriff or a bailiff to vbou tbt ■behff hoi ccmmitted the huodnxl ; but raanv of the hiudnd courts are in private hands, and, when this is so, tlw steward prpflidoa. Fnvbolden of the huodnd owe aait these suitorv an* the doomsntcn. Its compctenos ■ the same n« that of the county court, tbou^ ita conHned within narrower geographical liniitu ; bat real do not come to it. nor do wc hear of aotioM baiiig to it by the king's court.
Twice a year the fJicriff makus a tour or turn (iumms ncv- cotnitis) through all the hundreds of tb* county. M* bokk each of the htmdn'd courta and on tbeae uccaMona mas^ pefsons Waidi.-!* tht: ordinary soiton ought to be pr— ni. Ooa of hiA objects is to hold a view of fmnk-pledge {wimu ^mtii plf^i), to see th^it all pennns who ought to be, arw bi a tithing. For this purpose strict law might pequiiv that all such perBouH shoald be present, but often tbsy sasw to be <*ufficicutly represented by the chief pledge* (eafitmlm jrfiyiOi the heads of their tithiugH. the tiihwginen (rfsnumuriVK IV curious organizatioQ of frank-pledge is interiaoed with iIm orgautzatioo of townships and of maoois. and the tiisaabipi also have to be n*preaented at the idieriff^ tniHi each hj its reeve and four of its men ; for another <ibjaefc of lh« tan is that the itheriff may bold what we may eall a * pobee eont' PreaeDtments reelecting crimae and minor uJiuRjas are then made by the raprescntativas of th« tovoahips add m jwy af freeholdera. The presentments of minor offences of 00 the spot ; prea«Dt8M0la of chmai menltj serra m proceedings against tba aoousad who will b* triad I7 tba^^ king's justices. In his * toni ' the sheriff acta ■• a JU(%* wilh^H pDwen delegated from the king, and aeaouBgly tba wulflii af the hundred have nothing to do with the jodgmeota
This we may «y is the national nyitem of loeat courts aaJ these courts for want uf a bettar ttUa «a nay oall *
-thereby meaning that the conrt reprcscntJi. though it ia not lecled by. a communitas. From them wc must distinguish ;ourts which iu a wide sense of the word we might call feudal, but which it may be better to call seignorial ; they are coiirtH which have lordn. These seignorial courts do not form a system comprising the whole land, but ore dotted about sporadically. "We must di\'ide their powers into two classes. It would, seem that the mere &ct that a tnan had tenants gave him a right to hold a court of and for them. A court authorized by this Peaajd principle, which we may call the feudal principle, would have, ^"""^ at least over the freehold tenants, but a purely civil, that is, nou-ciimiual, uon-ponal, jurisdiction; it would be competent for personal action*; and also for real actions* in which freehold laudf! were demanded; but the latter rajuM only be begun by a royal writ (breve de redo tenendo) and might easily be Mnoved from it by a similar mandate. Over unfree perwHU ind unfree tenements it* authority would bo more ample; about the title to lands held in villeinage it would be able to say the last word, it could enforce the manorial custom and iHict minor punishments upon the villeins. Probably there ras nothing iu law to prevent a lord standing high in the feudal scale from holding a single court for all his tenants, and occasionally we read of the court of a wide-spread honour. LTstially, however, the lord's court is the court of a singlti manor aud very frequently the manor is a single vill. The legal
ttheorj* of later times distinguishe*! between the court for free- loldun^ and the court for customary tenants, calling the former a court baron, the latter a eustomaiy court ; in the court baron, ^it is said, the freehold suitors {sectatoren) were the judges; in khe customary court the lord's steward was the only judge; >Dt it is very doubtfiil whether we con carry back this di»- fcinction into the age of which we are now speaking.
O^ntrasted with the jurisdictional powers which a lord has FniKhiM^ merely because he is a lord with te&aats, stand the franchises, ^^'^ liberties, royalties {Hbertates. rerfalia), powers and immunities rhicb can ouly be posBesscd by those to whom the king has tied them. Those franchisea were of the most various in, ranging from the powers of the palatine carl to those the lord of a petty manor who had merely the \'iew of frank- pledge and the police juiistlictiuu that was incident tn it. This lost franchise was common, and the court iu which the lord
M— 3
exemBed it twice a year vraa acquiring the Daaw < (ttia); il was a police court for the prMentincnt of and for the paniAhment of minur offeooea; it wa« (XMirdiaBM with the fiherifTs turn. Sometimea tiM lord had jrai hi|^ar juitticc iu bis hands aud might hang thicvea tak«& in ihe a«l of theft ; and thuK gnulnnlly wo aaoend the noilo of ' niyaltiM' which leatk lip t4i the pnluliuo earMooM.
Thp cities and borcmghit — vilU» that ia. which hare attAiswd n certain d«gree of 0T;gaQiiation and indepeadopoc haw> oovnt of their own. But of theae municipal oonrta wry tiltlo can bt ■aid in genera) terms ; they are the outcome uoi of lava bat of privilcgtw, lU^i Abuve all other courta riaea the king's cwurt, which hat gmdually been diriding itself into Khn!« permaMOt cuvrti^ tha King's Bench, thr Common Bench, the Excheqaar. Bai beadoa these permanent and oentiml. it mumoa lampaaij and local fomiM. Royal justioes an aent into tb» oooitfiai under divere commianona; it may be to take iho anaes ^poa- seasory actions) of the county, it may ba (o dabvnr kAm gtui it may be an justices in eyro {im iHm^n) lo boU all tba pIsM of the coauty, civil and crimiuot. In this loat case the jualfag prasido over a very ftill. solemn and prokngod mecCiBg of dM ooonty oouri. tn one way and another, now by Ibe • of oaosa«» now by the invention uf new actiooa. the king'lj ooDfts are not merely roduciag all other eoona iaio sabwdi-' natiuo, but are making' tliem petty oooile. eovna lor smaller nffiiini of the smaller folk.
Such being the main oatlinoK, we may eodaavoor to pertain partM of the picture, avoidii^ much repatilMii of matters which have been vufficiently diaeuaad by hisCenaaa if ibe Bogiith oonatilatMMi.
vmanj.
§ 1. The CoHHtif.
Of the origin of the variotts oountaoa we shall llMnlace ssy
nothing'; but there is ooe pbenonenna which dfiwrea a §f words, nomfly, the * detached part of a coBoty.* TIm ■■& sf Kngland has never shown lucli atrikiog asaoiples ef ooontMS 00 those diMpUyed by the nap of ttiwrthirl ; tftiU iht < 8m Stabhi, OmM. BbL L IS.
CH. III. § 1.]
The County.
533
B total onmber of caHes m which a county has bad outl^'ing
nierabery is by nu means small'. It seems ccrtaiu that niauy
^ of these anomalies are dne tn very ancient causeH ; poiwibly
^ in a few case» they take us back to the days of inlcrb-ibul
warfare ; more probably they illustrate the oonuexion between
property and jurisdiction. The lord of a hundred in one had
an estate lying in another shire ; he obliged all his men to
attend his hundred court ; such a proceeding may or may not
have been warrnuted by some royal charter. Thus Domesday
^^Book includes in Worcestershire islnnds which arc surrounded
^Biy other counties. These islnnds belong to the hundred of
^FOswaldslaw, which belongs to the church of Worcester; but
V then these islands themselves belong, in a somewhat different
sense, to the same church ; the church is lord of the land, lord
alio of the hundredal jurisdiction. The^ 'detached portions
of countieH ' seem to bring before our eyes the struggle between
uational and private justice ; their small siguiHcance in English
history and their rapid descent into the category of petty
nuisances show how that struggle was decided'.
Of the county ofticers, again, we need say bub little since Tha tfj constitutional history ha^ taken them under her protection, ^^t. The eiu-1. except iu the case of the pjilatine earldoms, has little to do with the government of the county which gives him his title ; even before the beginning of legal memory he has, we may sfty, nothing to do with the county, save to be girt with its sword and to receive a third of its pleas, ' the third penny of the county'.' On the other hand, the sheriflf, who, despite the fact that in I^tin he is vicecotnes and in French le viMoant, has never been the vice-gerent of the earl, in the governor of the shire, the captjiiu of its forces, the president of its court, a distinctively royal officer, appointed by the king, dismissible at a moment's notice, strictly accountable to the Exchequer*.
' A gttMt deal o( information mmy be gkined from Schedule M lo the Stfttau
i~» wm. IV. c. 64.
* In 196tt th« undfiT-ihuiff of Suffordihlni U obaiKcd with takJDg a nil oai of 0D6 buidrvd to pat it in another which li« farawil iu te« ; Staffor^tihini CollMUons (Salt Soc.), iv, 170.
•> Btuhht. Conal. TIiKt. i. 369-SM ; Rcnjnd. Qeoffrqr do itanderillc, 987.
* Tba ooDtintud aac of the Eoglith tJtla iktrif might bt foffloiaatly proved br its rcsppflaraiioo on the nirfaoe of lenal history in lai«r daj*; bat ewn in tbt lldrtcentb century we h««r of local oxaeUona whieh arc known as #Ar>mv«
•r. •cirrtwfifot. r/jirytvcAoi, i.e. auitlium mteeeomitU; K. U. i, 157. 4&4,
Bintt7.
I
A duig«r that sherifTdoms would beeoma hoivdtUiy offioM bai been nnnnoiinUMl ; ttt thv end of the thiltoooUi oeatory a dinger yii mch viv ihiiik it) that tihonffdoou will beoxM elective oflftoes is being sunnDtttittKi in spile of pofiaUr de- miuidfl which grmJually die out. and pioui lotgenM vhkh lung iroiiblu the streiim of legal history'. Alrauly belbn the beginning of the thirt«euth century the iihmff it \emag hrm of his power* ; before the- oad we ace the 6nit gcnna of an institution which is destined to grow at hie czpeose, tbt kuighta assigned to keep the peeoe of the ooontjr wboee eoe- oeeeorv will be justices of the peace. But the ahaiflT td ibb century, still more the ahonflf of the twelfth, is a gie>l neo with mieeellaneous functions, military and Ananctal, eveeottve and judicial. Below him in rank and of man recent origin Htand the oodKUken, or, to give them their full liUe. Um keepai of the pleas of the crown (custodsa ptaeUorym eoroMW)i X«r^ mally the county has fuar coroners who w elected by tbe county in the county court. ThL>ir origin is traced (e «o ordinance of 1194. Tba function implied by their title is thai of keeping (cuxlodire) as distii^tshed (rum that of holdtag^^ (tenerv) the pleae of the crown ; they are nut to lleer and determine osuees, but ore to keep reeord of all that goee en is the county and coooeme the admittistntioD of ehniBel JQfltioe, and more particiiliiHy must tb«y guard tks ravenase which will coHM to the king if such joeUoe be doly done'.
The ' ooanty ' is not a mere stretch of knd. * district ; it is an organized body of men ; it it • We mutt stop short of «aying that it is a cnrptntkm. idea of a oorpontion is boing evolved bat slowly, and oat never booome eorporationa, ao that in later daye the ' county onqKirmte ' is employed to distinguish ceftain mnnisipnl boroughs, which have boon endowed with the ^wjpuusatm e( ooonties, fttMn the ordinary ahirea or * ooontias at Uige.* With; snoh 'ooantiea oorponte ' we have not to deal ; they betoag M
The
> BitaMMt Is bm mads to lbs Omytu lit, ktmrnku* tatafpobM iato SOBS aoptM of lb* Li^ss Bdvwtf OMibMris. tary AniXb. ■v Stobbi, CoosL Uim. L tsl; ss lo ilsiili i
•Oft-a.
* StabW, CooM. HM. I COI. Tbo^ «• mo a» ma ooBUBOB doeiriM Lhsi Uw iHMrsl *—iMit1frir« rf isiimsss Is dai to Iho o( UM, stffl ths oOa* or hmbm ibi phw af lbs a kamni si sa «sf Iter tims. Sm Oiom, fiiMs" %Uh (Md. Has.)
another age. Bnt atteudiug only to the 'counties at large/ we notice that the law and the languago of our period soem at firet sight to treat them much as though they were corponitions, and in this respect to draw uo hard line between them and
Pthe chartered towns; the borough is a eoinmuniiaa, so is the county. It would even seem that under Edward I. the county II of Bevon had a common seal'. Tliis may have been an ex- ^■ceptional manifestation of unity; but John had granted to ^■Cornwall and to Devonshire chnrtcra which in form <Ut¥ered H little from those that he ^punted to boroughs : — if a grant of liberties might be made to the men of a town and their heirs, 80 also a grant of liberties, a grant of freedom from foresta) exactions, a grant of the right t«j elect a sheriff, might be made to the men of a county and their heirs'. But the county fiu] was apt to find its unity brought home to it in the form of ^_ li^hilities mther thnu in the form of rights. The county was ^Ppunished for the mistakes and misduiugs of its as3t>mbly, the county conrt'.
In the language of the time this proposition that the The
county must answer for the acts and defaults of the county coorL'
court appears aa a truism, for it can only be expressed by
saying that the county must answer for the acts and defaull-s
^^of the county. County and county court iire so thoroughly
^Bone that the same word ctauds for both. Rarely, if ever, do
^Kwe meet with any such term as curia comitatus or cwia d«
fcomiYoCu; the assembly is the comitatus, and every sessiun uf
the assembly is a coviitattts; for example, when a man is to
be outlawed, n proclamation commanding him to present hini-
^hMU must be made in ' five successive counties,' that is at five
^V ' C«]cndArium GAneala^cuni, p. 487; ■ buly ends a doounwoi with tboH wordv ' In catDs rei testimaaiam Ritiillum meam praesciitibiu ipposal. et qaia ligillam mearn c«t incognitum sigiUam comitatus Ucvoniao appooi proounvi/ Al n UUir ttnui Uio hundredi huve msilA, bol theM ore Uie uatcona of a itatiila relating to ttie tmnamU&ion of va^n^ntfl.
) &*t. Cart. ITJ, Wi. Kol. CL i. 457; u. 3A, 16B. H«ai7 II. bf charter gnulod to tlu men of Derbyshin that theii ooanl; coart should be held al Detby inataad of at Nottin^aia.
* It will b« nHnembered tliftt to IhU day Uia oouoly in an loillctabU unit. ihoaKh no cnrpuration. The difficulty ooottionod by the fact that the oouuty «ocild not hold land waa met by a lUtote of 1858 (3t and S3 Via. o. 9t), which prorided for landi being held by the clerk of th« peace. Al a much ■arilar time we Sad (be jodgea puxxicd by the ijueetioa how datnaigM andcr the Statnta of Wincbceter can be recovered from the ooanty; Y. B. Paach. 17 Bdw. U. 689.
I
>nooe«iv« ttmoim of the county court The actuiU ■■miHy of mm mttinf; at n certain time and place U tho ooiiiit}>*; ibv pemioueut inslitultou uf which thftl pArticoJar ■miiiiiMj' as it were, a fleeting rvproiontatioii, ifl the county ; Uw again is n tmct of frround ; the county \a the whole body pemuns who hold Inads ur reside within that tract, wb«Cft they participate in the doings of tho a—embly or na Aad m with the word afiire, which in mninlAining ita ground alnngMde county; if nn abbot and his tenants are to b« freed from t^ duty of aiti'ndiiig the oouoty court, it is quite enoogfa lo my that they are to bo 'quit of all abipM* (^uitti ah mnm%m KJiiriM). What we say of the county u true abo of Um hundred ; our law lAtin haa no such tenoi «a ' the eoofft ti the hundred'; the 'hundred' is a diatricl, a body of iMd- huld(*r» Olid nt^idoutA, a eoiirl, the aoanon of a ooofl. Idnuir of This absolute' idi-ntily of tho county and ita coott migkl JS^ * abundantly illustrated from the rolU whioh deacribe the fm *•"*■ ceedings of tho juHtices in nyrv. They cuioc into lh<
the whole oounty is convened to meet them ; the oouu:^ g. eridesoe, anvweiv qaeations. reeocda ita cgstotm^ expnmm axtiffnc'wTw, 't» believed or diabelievtd, tfi punished. Thus the ju^icee visit Linrolnshire in 1£02; the oounty gives •» of proceedingti which took place in the county, the rolU give another account; the tCMlimony uf ibe lottw treated as ooodnRTe; the jnalioea thorefianv on on ibe of fining or ameroing the ooanty. bot the omnty their judgment by nffering a mm of £S00 to be paid by tbv county*. But not mcnrly h* the ctiunty thna viaited fai ila home; it han often lo appear at Weatmiurter and Umching ita niiadeeda, in particular th^ miacarriagei uf Ji which have taken place tn \U court A writ of Cake y (tU /aUo iWici'o) i» brought againiit the oounty ; iberrfay lb* aheriff U directed to * record * the prooeedinga ibat baw tabaa pUce in the county, tliat ia, to cause tbooe prooeediagi le ba recited or recapitulated in tho county court, and then tn mmA four knighta to bear the 'record/ written or uuwhtlm, w Westminster. The knighta conus thLiv ; they bear iweoidL m rather the connty bean reoord tfaroagfa their taoatba. lur wiM Ibey say the oounty aaya. The oonplainaBt diapiitea ibia
1 IMmi PlM* or tlM Ctevs, L lO. aft. Tkb volOBt aoalatas mMCialloaiofilMMMepftodvliu 8m akc IMm, Eufc. L W.
i^^TD'
i
I
and olfcrs battle; the oounty maintaioa fche irath of ite record and offers to prove it by the body of a free ja&a of the county, who — ho we fear — is no better than a hired champion'. The county must pay for its false judgments*.
The constitution of the body which thus represented, and Cooitao- deed was, the county Uiis been the theme of sharp contri>- onmiij venuee"; but it has usually been discussed in its relation to*^"*"*- the history of parliament Two opinions have prevailed ; some woitlil make the county court an assembly of ait the free- holders of the shire, others would make it an assembly of the tenants in chief. Both of these theories have the merit of boin^ nimpli', but the demerit, of being too simple to meet the facts disclosed by documcuts of the thirteenth centurj-. Of the connty court as it was at that time we will first speak, and, this done, we may be the better able to imderstand the ffpame evidence that come» to us from ou earlier age*.
And first we mn»t notice that of any right of attending the Suit ot county court we read uu word. Of the duty of attending it we ^^^ ^ read much, and obviously this duty was irksome. Men seek *''"'^*°- for chart«rH which fthall absolve them from it. In the twelfth century immunitit^ of this kind were frequently granted to religious houseH and uccasiunally to laymen, and, at leAift in some cases, not merely the grantees thumsclvea but all their tenants wero delivered from the burden of doing suit to the communal courts*. Precise calculations about such a matter are impossible; it must suftice therefore to say that before the beginning of Edwanl I.'s reign large tracts of England enjoyed a chartered liberty from this burden. To chartered we must add prescriptive liberties ; to immunitieif that were legally valid we must add others that were actually enjoyed. Prelates aitd barouM ' subtracted the suit '—such was the phrase — due frx)m thetnselves and their tenants whenever they saw a chance
> Kote Book. pL 40, 2Vi. SIS, U&, 965, 1019, 1190, UlS, 14M, 1673. 1730. Ohflcrve in pi. lOlU ' Bt coinitatiti faoo dc&tudit prMciM,' tnd la pi. UlS *El cooiiUUiM dioil t|uod late fuit nwordan.'
* iUtlux, Eioli. i. ££6 (31 Ben. III.): tbe vbole countr of Koriblk owe* U f or k blw iiulgm«nL
* Sm SiablM, Consl. Hist. ii. 9DS-2Sa.
* Mritland, Uu Suitor* ol tbe Cooniy Goart. E. H. B- Itl. 418.
* In lonM om ll U quite el«ftr tlmt tlie immunttjr aoDMii nnl nnly the malee himself but alw Uu tcouita from iiait ot ooort ; in otbar ouei Uii< u) leH in Mnne doabt. Sec oar tint vditJon, 1. 623.
la.
538 Jurisdictian and O^mmuneU Afitirt, [bk. n.,
of doing this with impunity, and n long ooatinnod attblnolMO would ripen into a lawful frmochite. nohoC Nor is this causo for surprise. Let us try to pieCiu* l«
tSot£i». ounelves the position of somo pcuy freeholtkr wboM luids lie on the north oout of Devon. Ooec a month b* miut attend the county court ; onoc a month, th&t is. be mttst imI ti> Exeter, and wc can not always allow him a hocvu. Kvm if the court gets through iu buiinon in fine day. b« will 1m away from home for a week at least and hi* jounwyioga and Bojoumings will be at hia own cost Wh«i he rctoma be win* have to roniombiT that tho haodrofl court moeta eaoe id thsee wedis, the roaaorinl court oncv in three weeka, a&d tku W owoa suit to both of tbL'm. la it credible that all diitduu^ theav duties? '^ In Hcnrj* tll.'s reign thi> county court m usnalljr
once a muuth. Tho thinl c<lition of Maglia Carta, thai uf 1317, sayn that it is not to be holdcn ofteoer. but adds that la cutuities in which it haa not sat ao bequently the oM r«le is to prevail <. Th« iJnooliMhire ooan met every forty iWya*; but monthly MosioM aaem to have beon asnal ebewbciw; ■■ 1210 the county of Surrey was amerced fijr hokliag man fr»> quwt aoMMU*. As to tbe hundred oourt, an Ttrttinaaf af ItM declared that it was to meet but ooov is titme waabi*. Wc thus Icom that befbro 1217 the cooa^ eoorta had eom*. timet been hoUi«n at intarvala of less than a msnih. whiU? tW ardinaaoe of 1S34 exproasly tells ns that in Hciuy lis dsj the hundred courtM and banwial courts had satoeoea It is difficult lo make theae tidioga fit into a with our earlier evidence. A law of Edward the EUer Imd said in general termn that eveiy reeve is to have a flMOk m evtry four weekn*. Edgar eonmanded ihat the hundrsib wtn to meet oooe a month* ; vJsewbare he adds that the biii^h— ul shall be held thrioe a your, tbe diireraoDt twice'. This 1^ rule is rDpeati<d by Cnut with the finalification that the wrw^ are to be held oftener if need be*. Henry L ofdaim that tba
1 Gbsite of IU7. ai^ «!■ 'XbQm eosslMs* «• WMS la auaHSO, «l aU maim laiminiu w^m M^tWu.
• Mote Book. fL ITM>: *CoBttaiDi i.i**^«u* mmfm mtm mttm * iL tUbu In ti. dm.'
' M«u book. »l 40. • Btolstii^ L US| Aaa.
> Bdmrd B. 8l • B4pw u U
r Idgu m. L • €■■! IL la
CH. III. § I.]
The Cminty,
539
^
I
counties and hundreds are to sit as they did in the ConfesKor's day and nut othcrw'ise ; if more frequent sessions are required for any royal business they will be summoned'. An exposition of this oniinance, which seems to be the work of a contem- porary, declares it to mean that the shiremoot and burghmoot are to be holden twice, the hundi-edmoot twelve times a year, seven days* notice being given unless royal buHiue^ demandH a departure from this rule. To these asaemblios are to come nil the lords of lands. Twice a year, however, a specially full hundred court (the sheriflTs lui-n of later days) is to be holdon, at which all the free meu (/i6ert) are to be present, whether they be householders or dependants, in order that (he tithings may be examined and found full*. To this exposition we must return; for the moment wc have unly to notice that the county court is to all seeming held but twice in the year. How to reconcile this with the state of things ejcisting a century later and presupposed by the Charter of 1217 is a difticutt. question. Has the burden of suit been multiplied six fold ?
Now that a court with much judicial bnsiuesa will sit but Fnll cobH*' twice a year we can hardly believe. Medieval procedure re- m«uue quired that a suit should corae before the court on many""*"^ oocaaions before a judgment could be givea The parties must appear in person, not by attorney ; roads ai-c bad ; simple justice requires that a defendant should have ample opportunity of appearing before he is treated as oontumacious*. According to tho law of the thirteenth century no man could be outlawed until he was ifuinto exttctns, that is until his appearance had been demanded in five successive county courta If we suppose that the court sat but once in six months, then the process of outlawry, which we may well suppoBe to be very ancient, could not be accomplished in leas than two yeam and a half*. We
* Writ b S^ootCbaitcrs; Liebennuui. Qnadriputittu. 165. > Leg. Bear. 7. ft, £1. S 3-
* In u) kctioD for laod in a lockl ooon, ibt penon in poMeuion wm« ufteo aUawed ' thrw budiiikhiim, tbrae delkilltc «od three onoiiu betoro ApptvuiH' (Select Plnu in Manorial Cooita. i, 107, 113—180) » that if tbv court nai but Iwiat a >-Bu ba woutJ hare •oma four yeftia bofora tha da; for atmnicring the dmaadant wooU arrin. The MS. Book of C«rne hi Cuub. Univ. Libr. l«ll» of m soil batman tha Abbot of Ceme and the Prior of SI Swithio'a which ha^ coma bafon tan aoooeaaivB 000017 oootts mxhX yet Menu (at from a iodgmaal.
* Braeton, f. 1:16 b. Thia ruls which raquired thai the oatlnwr; ihonld not talM pUee until the fifth, or according to anottMr moda of redioottii; th« fourth.
^fifa
540 Jurisdiction and Qmummud Affairs, [l
OMi hiutlly avoid one of two mppoatioia aiid parliapa tihoulil be cnmbinMl, luuiioly. that in the duva bofim iho Coo* IMi que«t the fthire-inoot had Hone little of the ordiour jiwUcuJ work, thia being tuoally dinpoaed of by the hundred oomta, and secondly that between the aolenuk half-yearly wmtm^ of the oounty court, at which all the euiton wen renuiwil I* be prm«it, there intervened Ian aolcum mMtioge nhieirfirf only by n smaller group of «uitora bcfuro whom the furiDal and proUminary ttopa in Utigmtiou. the * inteckentocjr pwoawtiny' ■B wo (ibould («n them, eoald be taken. Tlin Utt» thamj is supported by numerous entrii« up<ju the Humlrvd Kolk. Just u iherv are many nii.tn who owi- tniii lo the two haU- je*riy roeetingN of the hundred court which are knows a> th* oherifTs turns but owe no mil to th« intervening mmtmi at least iu ccriain shires, the suiton of the county oovt into two riamcff; miinr are bound in g«> mnalb by me while otheni are bimnd to (^ but twice a year^ they g9 te two HMetingv which are diiitini^iiMh<*d a« ' the great coontiee or 'the general oountieaV The Buitorw or thu mannrial iall into two similar claaeea; some must appear every weeks, otheni twice a year*.
Rut whichever nf tht'tfc two eUnee w •^■myi^ ^i^ ^ aay that it w rooHlitutcd cither by all the ftmhiMmm «C shire or meiely by the tenonle in duet A morw oomplM iflea tiiiiht bt> intrttduriHl. but one which will not be tu us fd'ter what we hnve twen of scutogc Suit to tJie i nnd huudrcd is a burden incumbent on land. It baa
eoaatytMirt, it ntecaiatd iaaMMOf till ■.SdMHtlmMol^mCwmmm, pL Itl. 80 sbo Ibws U wutsat aMBlini In Um JL-C Iimi tli^wmm
ww—lti wunnton, uid mah rotuhm moil tun la*«ltW M Ih adjoaranMOt.
> 8m * V Uw Mwnnt at Oir.tpUhin>. K. B. fi. 8W-4VT: wt IsadPWinw ll it Mid *(4dt duoa ftdnoto* mi *r»«il UtNotMii addiuMaafDfMMautatauiHaftlM.* BataT
P. g. w. in.
> Tb* itUBniUr notiwd ia ihU pUH^fh U II I by
ffiA. I. M9. AH that «* Baa ftdd to fail nfluMlaas to IW Itol
im two lMtf*r«rlj mMliaff of tin moBtf sowi mn
pmi oeaalta'CnKtfat orfinuy mmOOy ■inili^i. %M tW
Ihoafli ib> Ufm Hvrid «Mk ootf of «W pMi telf-ywtr
— y stop haw b»a ipoathly iii illsp aWrfrf aaly ty a m^ N^ at
Tlw liUtmy of tb« PraukUi oonta mppba) ualofto.
•tflte
Jk
CH. in. § 1.]
Tfic Cmirdy.
541
root in particular acres. Feoffments and private bargains can Dot shift that burden Irom tbo land, nor will they increase ^MT] the number of suits that are due ; but, as between the various persons inierested in that land, they can and will determine who is to do the suit. We will suppose that A holds a tract of land for which he owes a suit to the county ; he enfeoffs B, C and D with parcels of that land. One suit and no mure is due. Probably aa regards the king and his sheriff all four penons are liable for that suit; all or any uf them can be attacked if the suit be not done ; but, as between themselves, the terms of the feoffments decide which of them ought to do it.
We rdhy be pardoned forspending some little time over thisSnittia doctrine, for it illustrates the complicated texture of medieval bonlra.
ety and the largo liberty that men enjoyed of regulating by private bargains what we might deem matters of public law.
And in the first place we notice that suit to the communal courta is often spoken of as the whole or part of the service by which a man holds his land ; it is mentioned in ihe same breath with suit to the lord's court, rent and soutAge'. A man may hold hi« land by the service of finding one doomsman for the hundred court, or may hold it for U». 2^ and half a doomsman'. Then aguin we Hnd such caseu as the following. In the vill of Bottisham the Earl of Gloucester has some forty old tenants; two of them do suit to the hundred and ty courts for the earl and the whole township*. The Abbot of Bamsoy has a manor at Burwell : the jurors do not know that he does any service for it except two rniita to every county court ; but these two are actually dune by two tenants of his ; J. A. holds a hide and doe» one suit, B. B. holds ninety acres and does the other. Any number of similar instances might
' B. B. u. 48St ■ W. O. hold« two virgKtM of tb« Abbot of B1U11H7. For odc viiiB»t« b« doet luil Co tbc couul.v of Cauiliridee iind tl)« bdadred aod ptya 13d. towftrds Ui? s)ierifr» kid. Fur the utlier rirgmtu Lc [wys Im. r yc«r to tbi Abbot Mid doM BUil to tlte Abbot'i cciart at nrouglitott.' Y. B. Trio. 7 Cdw. 11. f. S48: ' Tour {in^daofiMor eiifenfTfHl William of Uie ooo virftatn to bold by homagv, fvkliy, tlirM abiUin^B & ycu and suit to bis court, aod for the oUisr y'tt^u, lo do sait to the hundred of A. aod tbe ooDOty of Hertford for thti vill of L.'
' Tvsta d« Nevill, 404-5. Tba word IraoiUted m doomaniaa ii iu(Us, Imtead of whieli index ia too frequently printed.
> B. U. ii. 4S».
542 Jurisdiction and Communal Afiiairs. [bk. T1.
be found. As regftrds suit to the hundred ooart« we hfttvtM yet more explicit tiding. The opinioo of the jnron trim whoM v«nlicta the HundHnl HoUn were cotnpUfd «•• di»- tinctly this, that suit was a burden on particuliur l«a«Mali^ ■ buTtlcu not lu be incroftfted hy any subdivmoo of ikoM lcn#- nicniA. Tboy compkin thai the Earl of Sumj wbo botdi ikm hiu)<irv<l of (Ullow has not ohaenred this rule. There wm, far inttUocv, a tenement in South Crcake conuining 100 it owed a nngte emt ; it has been divided into 40 and 40 suita are exacted^ And so, again, if the become* partiblo among ooheireaees, the number of waitm^ leact iu tbc jurun' opinion, should not be iooraMad: ihu burdaB •hould Ho on the shve of the eldest lieter'. I
Onoe more, the king aeta the law in notion agunai one who has 'subtracted his suit.' Now wen thia duty incumbent on all frocholders, nothing would be simpler ihaa the king's caw ; he would merely have to saj ' You an a freeholder of the county and you are not doing suit.' Bn% the king's advocatee do not adopt this taay oottne; Ih^ mak* A a matter of seiaia The king denuKb • toit btSMH* ha Im^ or hi.^ anccatora have, been eeiwd of a suit done by tbe d»* fendaiit or his predeoeeoon in title. King Edward L dtmmmh ft mil to the hundred oourt frum the Eari of Nofislk aad relies on the seinn of King Hemy* in. Tbe Earl ooasa and donivs ihu king's right and the seisin nf King Henry. A jury gives the Earl a verdict and he goes quit*. If tbe mars boi that the Earl was a freeboldtr would hare m«de hfaa liable to do suit, the king's rnni-wl Mdly mtsuaoaged tbiir ease. Thii is but one example from among many. Afvfll Now all this aeema iooooairteDt wUh tba boCmb ihii • jl
(«sii« Buu. fireeholder as such owos aoit Somohuw or aootbrr tb« covrt, or tbe king — for it Is in the king^ imme thai tha dnty mmtA h* enforced — has become eiitiilrd to a ftzed anmbv of oaiti^ of which is incumbent on a eortaln tract of land. Of ibe and uaturt> uf these Nuit-owing Imctn our erideooe only us to say that there is no uiiifcnnity, but that oA«n a vhote vill or manor is npmsented by a oingU suitor. It wouU mmm that «r(»n Hho great ooonties' or 'geooml eoontiea* weiv Ml
K.B.LIU. B.H.LIM. r. q. vr. 730.
Bm slM On taaotal of
CH. m.§l.] The Qmnty, 548
veiy large assemblies, while the court which met once a month was, at least in some shires, much smaller. Possibly different opinions as to the nature of the duty {ffevailed in dififerent counties. In Yorkshire, for example, where suits exi^ble from all fireeholders would hare been an intolerable burden, the usual attendants at the county court seem to be the stewards of the tenants in chief \ But in general the assembly was formed out of miscellaneous elements ; there were tenants by military service and socage tenants, tenants in chief of the king and tenants of mesne lords, great men and small men. Many of them were knights, the predecessors of the country gentlemen who for centuries to come will do justice and manage the county business because they like the work; but there were also yeomen, holdeis of but a virgate or so apiece, who went there because they were bound to go by their tenure ; they pay little or no rent because they discharge a duty which otha> wise would &11 upon their lords.
At the same time we must not oedit the men of the^^M^. thirteenth century with a thoroughly consistent doctrme aa ttworiM ol to the 'real' character of the duty*. There is a otmflict of .S80] interests and therefore a clash of theories. In 1268, whoi the' Barons' War was at hand, there was an outcry about suit of court ; new-fangled suits are exacted as well to counties and hundreds as to franchise courts'. The provision made in answer to this outcry spoke only of suits due to the courts of the lurds and does not seem to touch the county courts or such of the hundred courts as were not in private hand8\ Among other points it decides that, when a tenement which owes a suit descends to coheirs or is divided by feoffment, no more than one suit is due. This may be the decision of a question
> Thufl Baldwin Wake holds ft manor of Nicholas de MeynJll who holds of Peu-r de Maula? ; Peter does sait to the connty of Tork hy his steward for all hix tenantfl ; therefore none is due from Baldwin ; P. Q. W. 199. In the tif[o(.-ntli centary the stewards of the greftt lords seem to hare been the electors for the county of York. See Stubbs, Const Hist., iii. 424, as to the peooUar chiiracter of the Yorkshire elections.
- It mav bo necessary to warn the reader that the ' suit real ' of old books, which is contrasted with 'suit service,' suggests a falsehood to as modems. The word 'real' in this context means 'royal,' and an attempt was made at times to prevent this 'suit royal' from becoming 'real' in the sense in whioh we use that word. See Y. B. 33-!5 Edw. I. p. 91.
* Petition of the Barons, c. 24.
* Provisions of Westmiiirtter. c. 1, 2, 3 ; Stat. Marlb. c. 9.
544 Jnrixdiction ttnd Communal Affairt. [flit. IL
Tbaeoort tnlU
that hiul been open, and we Bud that the coownM cam had been debatable. If n division of the tcnemrai does not iouwi the number of Ruiu, thi* uniuu of sevi-ml leouiicnta, w nrgtK-, ought nut to Uecreasc that nutnber. But we oihcrwiw decided, 'for it ia not cotuonknt to law Uut w two inhcriunoe* dwwcnri to one heir, or when on* ricriuin*9 divem teoementH, uion* Miiu thjui ooe ibmikl b« (or theite nevenil inheritanoet or tenenenta to ooe mkI \%m Mine ooart^' ' Reality* and * pemAality.' if we mvf m ipaikt are contending fur thn miwterj, and ih«^ r««ult whiiiib • aftttr the days of Lewes and Evcaham mAta» bvouxabJe to lb frtH'hi>ldcr«L When a lenemcnl in divided, the «ait b eoo* sidcri'fl AS annexed to the land ; when twu teoettcoUi aM< it in deenii-d a penunal duty. It ih not iinpoanble that earij in the fourteenth century the attempt to cumpcl r«<lartaQl fluitont to attend the niunty court wa» already beinf^ afaaodoMdl In the other loail courts it van nsoal to rvoeivo and mmil tba 'cnoins,' that in thu oxcuic* far non-albendaooft, of Um maatam who did not appi'nr. Bnt lhi<f. we are (old, wm Mi deas ii the county eourtM. whene*4 wo nuiy infisr that ibaae who iSd aal attend wire nut at |uuna to exonao themBcliree'. Then t« mvA in the later hiHtory of parliauientaiy DjactiixM to maba a» bcliovu that little trouble wa» taken to cnlbrae Um appeawee of thone who were bound to ooaw, and that no tnrable vae taken to exclude the pnaence of otiMn*.
Beudea tbe nbapc that it took ouea in every four weelD tad the fidler ebapo that it took oooe in emry ox montlM^ iJh county ootirt may have tnkcn a yet ampler fthape npoa oooMione. in particular when it wu eumroooed to Jnatieee in eyre, an event which, aeonding lo tb« opiBHS irf the luitAn of Henry lll.'n day, was not to oeenr mora than aaee ill wven yearn and whirb a« ■ matter of &et did na( oanr much oftoQur. Thai the common immunity ' from ebina eod hundreds' did not diachatf^* ita pomwMon fran bnriaf it nppeiu- ut theee grand OMMstings \» clear. It may even be argwsd that on theae rare oooutoaa ail tba Crrefaokkfa of the county
I
' Wiil of U lUa. m. lc>oa4 la « Ma
lib. KL T. U.
> The Otmn Bum <Sri^B Soe.) p^ «V-L
■ 8m BUh. (iMrtiliihti dm WattviMft. «|l I : hel
l»iM* loo U(btl]' \ij \hm doty ol nil of
Cl*r.
OH. in. 5 I.
The County,
had to present thomRelvea Bub the writs which summon these meetings hiirdly prove this' ; we find some traces of persons bound by tenure to discharge the suit due from villa and manors even when that suit is to be done before the jut«tices in eyre*, and the lists of persons who either sent excuses for not coming or were amerced for being abecut without excuse do not point to assemblages su large a» those which must have come together had every freeholder of the shire been bound to attend them.
From a time remoter than the thirteenth century we have ThBomi- little evidence ; indeed the paflaiige in the Leges Henrxci to oon-u Ui which referenoe has already been made' seems to tell us all ^^^ that we can Icam. It gives us a list of the persons who are to attend the sbiremoot — episcopi, comitee, vicedomini, vicariii ceHtenarii, aldennanni, praefecH, praepositi, barunes, vavaeaorea, tunffrevii, et eeteri terrarum dotnini. Of some of the titles here mentioned an explanation is to be Bought rather in France than in England ; we may doubt whether to the writer's mind they conveyed any precise meaning, whether he meant much mure than thitt all persons of distinction, all the great, ought to come*. But who are the terrarum doniini ? That thev arc not
> For tbo rorm of the saauDonB Me Rot. CI. i. 880, 47S. 476; ii. 181, 213; DraotOD, t. 100 b. It ninslliua: — 'fluminone per bunoa BammoDllOTM oauiM unhlepisoopoa, epiMopoe, eomitcB, et borooca. militM «t libeni tenflolM de total bailliva tDA at d« qoaUbct villa iiij. I^g&laa bommbs ot prMpositam «l de (]uoUb«t borgo lij. logklvt bnrgnaoei pur totAm ballivftm tuom et oinnea ftlioa de batlLira ina <]ui coram iiisticiarufi noHtria ititienuitibiiA ?enir« aol«nt et debent.' Nov to m; * Sammon «U tba atctibiabopK, bUbopa, «arU, barons, knigbu And free- holdtrs of ,vonr bailiwiok ind &U oth«ri of your bailiwiok wbo are wont and oaeht to altcod the jtutieea ' U to tue a phrarc which ii not too precise. Ma.T it not ni«'aD 'SttnuDoo tboae (fteeholderi and utburv) wbo arv wont and ou^bi to wane'?
" Tban a tenant of the Abbot of Olonoestor is bound to acquit the whole vfll from lult to all courU of the bundled or of tb« county or of justieea and all other BQiu wbieh pertain to the aaid Till; Cart. Olouc. i. 3^. At Northlaaoh a tenant of tbe Abbot is bound to do nult for hia lord to the eounty and the hundred and musC remain before tbe juatioee in eyte during tbe whole at their
Ion: Ibid. iti. IW, , Ug. Uen. 7. $ 2.
LThe virfjamini roHy poawhiy be the rfceecmvifet. the ilwtlffik who, U lUi
not eo, am otuitU-d from the li^t: btti tba tliror title* ricfdamini, triearii,
^tfnUnarti ooniins tOKtitlur BUtjiftvet tliiU the wrilor f« UAing iiti all the eiUm Uiat
he know*, whether Frvncb oi Euglisb. Kcithti tlm vidaiM uot iht vitiatff took
root In England ; tbe ceittentini mav be ibc bailifls of tbe bundreilH, bui the
eoojunetioa ol tbaee three title* ia rather Preocb or KranklBh than Eofllab.
3A
M6 JuriadUtion and OnnmuntU Affair** [i
merely the tenants in chief may Tiurly be ugued from ihv fifeet that vavusora u welJ u boroiu are among them, thaagh w can not be certain that either of a baron or of a varaaor aajr exact definition could have been given ^ Whether the t«m ' loniii of landfl ' or ' owners of landn ' wafc intended to oompriae >^ the burabler freeholden (for examplt', the oociaiderahle -*-t~ of perauns who ujipenr in Oomeiday Book an l{btri hommmi, nay be doubtful ; dommu* ia a flexible wonl ; but w« have •mw proof that in Heniy I.'a time 'auall men.' aHmrfa hommm, «nr«d Buit to the county court and aerred a» doomamen'. Attegvther the wurda of our text are vague ; they point to do otkc cloarly MtabltNhod rule, but rather to a atruggle betwem lanoi principUa*'.
One principle might b«,> fuund in personal rank: iha waak of a baron, knif^ht, raramor. thegn. Aiiother in the of the variuiis tenures: militaiy and noo-miUlary, and socage. A third in the grades of t«inire, tenancy in chief of the king being contrasted with masne tcoorea. IVdWhly a fourth was already being found in what we tak« leave to oall mere ' realism ' and private bargainings ; suit ia beoomiag ■ debt owed by manore aod aciee, and those who repRoent the hardened land may adjust the burden as seems lo tbao best If a lord attends, we an told, he thmeby dtschaig«i all tha la^
fliaylalaa, Kenaaa lialwqufr Rolla. i tiiv^ hj* Uhi ik« UiIm etnimHrim u* acil auM with in NomMzi iifkimm» wi m Utar 4u* elwujUl aentarj.
' N'rlUiwr Uw Uwof7 lh»l lU pi r mul Msda b« • twhT
tbi dcrintlioo at bla namt from rami tmawtntm ma b* wgsHpJ m EnfUad lb* word u rwv. W« mid aomewhtA aa«» «f II m mm tnl 1. Ut. h U vwj nmuUbk ibAi In lb* liM of OOh militt* dOM not ooeai.
■ Thai to Um r%p» Ron of 11 Bml U p- M. L^« W mmMm wt IW • todiaa at fuslocH.* wboss mirfotagi bsw nwfasd tkmt Wa man tfiaa BOO Bwkk Blanrkw* tb« fam* luiiiiiil ■■« il honiiM*' txA * wsftWiaaaal ' ft* ihoolli Um^ raftSMSl a mII- Uuu pi lOB, 'innlDTM M mtmiti boBisM't ^ m. *da IstataflldMiMbl ■ad di«f«] ^ MBKlnDKnni* iqUt Tinwii ck T
> Tb« dlffleull; U ItiorwMd by !.•«. Hm. I*rl». SSi f I, wWr* H ta Um kiaic^ iodsw w* Ui b« the tmrona of dw •aotOy «W teva <m vOUai^ KrtMta, &rtkia^and«n (/ndl^Q aad atbm ■■■■Xissm Mb |Mto Isifi* ftmmmt) am dM to sst is iaAp*- Thte lbs wklwiM al DO dsi luMissflsH brtwpis I — n sm pwwi holh fli Hmw taraM m aisd wtth Mnoai Usaass. Mik a ^Mi M
IwaMBrf
t. m. § I.]
The County.
547
fchat he holds in demesne'. Suppose him to make a feuffmeot ^■f part of this land ; why should a second suit become duo 1 ^^*hc court is entitled only to Buch suits as it has been seised ^^f in ihe past
^H The privilege of doing his suit by attoruey to the court-s of Sniib; ^ne county, the trithing, the hundred and to the seignorial "**'' ^^ourts was conceded to every free man by the Statute of M] Herton in 1236'. This general concessiou we may treat as new, though for a long tiniu post the greater men were privi- leged to seud their stewards or a deputation of villagers from their villages', and sometimes the tenant who was bound by his tenure to diHcharge the suit duo from the land was spoken of a& ihc enfeoffed attorney or attorned feotfec of his lord*. Aa to the deputation of villagers, we rend nothing of this in documents later than the Legex Henrici, though, as will be seen hereafter, the reeve and four men of the townahip have to attend the BheriflTs turn and the coroner's inquests, and they must go to the county court if they have a crime to present.. Nor do the Leges Henrici contemplate their appear- ance as nonnal :— if neither the lord nor his steward can be present, then the reeve, priest and four men may appear and acquit the vill of its suit. Still this draws our attention tu yet another principle that has been at work : the county court ^reprej^nts not merely all the lands, but al^o all the vills of the lire, and it is quite in conformity with thiu that in the thir- th century the suit-owing unit of land should frequently
vill». Perhaps it is this heterogeneous character of the county and R«|)roH>u- lundrcd courts which makes it possible for men to regard them cimrafin thoroughly representative assemblies and to speak of them fJSJ""^ being the counties and hundreds. They do not represent twcll-delined class or condition of men, and they do repre- all the lands of the shire, franchises excepted. Every
» Leg. Hmi. 7, J 7. ' SUt. Mm. o. 10, ' Li^. Reo. e. 7. || 7.
■ Thns the Prior of DMrbttriit owci n Kinglo loit to ths cauut; of Oxford for
BiHiar of Taynhm ; thtn is done for hliQ by J. 8., bia sHomAy enfsoB^d (or
: puipow W Uieirot tiuwtt; R. H. ii. 7X3.
• In onvf t)i» PhilIt|i)iA MSS. i.f Bimrtoii. No. 3310, f. 3G(L, n note t^m the eulj* yemn uf cput xjv. nyn itut when tliv onuiit; is ftned for fiUM jod^pDOii. 'tuna mU Uben tuttDtnei pet qooa iDdtRiii bUis rcddunlur drritM el p»aji«v«s pro Mqualibu pmtliuifbiu oaotribaunt, oollu modo diMiiftrii, Le. cOMtittnvrii * ; bat * loU ovtUDaiii •t uon Ubari hominM ' pay the murder fioe^
55—2
548 Jurisdiction and Cdmmunal Affairs* [bx.
landholder who holds hia land fireelj maj b« deemed to
(ho repnnate
pnatenl there, if not in puntoD then by eomeoDtf bis land, it may be by hin lord, or it nuy be by bis tcuuit Al sny ntfl the whole shire, franchises excepted, wwiw ra»piiii«M> for ibc' misdoingH and defaults of its coortv «ven Cor thoas which take place in the thinly attended iD«e4uip thai «» holdt-n month by month.
Thr tttiiton wen? tht^ dtKjuisiuvu of the court. Tht evidaMv i that lh«;y borv thin Kiigliith litlc- is indeed alight, bol Mia* Mflh term we must use*. Occasionally in I^tu doeomenta they iqxtken of aa iudias, more commonly as iudioatarm* ; they aru not ; iudicutwet is a wonl which aerros to thorn from cwclcsiaAtical iudicm an<l royal iud^tiarn*. vhateTcr may have been their English tiUi-. their feeci»Ma is put before ua as that of * making the jndgmenU.' If fur moment we adopt 0«nnan terms, we can aay tkai ihry Jit i'llriljindfr, whilo the RhohfT or <aa the om» may hr l Um huilifr of the hundrfd, or the steward of the fnuiehiae is dtr RidUer, He is. we may say. the pre«idiDg magistnfte; be ■ammoaa the court, he * holds the court,' he ' holds tbe pisMk* be rcgulaitifl the whole procedure, he ianai the twindalra ; b«l he does not make the judgmeota: wheo fcba CbM fur • jo%> menl ha« oome be demanda it frun th« auilonL Oaring tltt Norman period this seems the oonstitutioD of all oourta, b%h and low. When there is a thai in the king** omirt. the kag demands a judgment from the aioembted pnlatea aod harvoa*. But the gradual intrusion of the sworn inqa««l, of the aaaaial trial by jury, soon begins to trantfiguie tboae eoarU in wkiek the king presidoa by himnetf or hia eomaaMOMra ; jtiaciets mA juruiK begin to take the plaoe of proaidaat and danmamen. aad
I Bm BuUm** rdmoo of Btoaatl Tvsaiw, ^ 174. Mm 1^ of Bsnrfbnl] 'mWM Umim ••eUu vk IhisJisJsw yriwtislss» •« m^ «hb JonmMwn d* aodtai boadrado.* Bai Uia bsi aM IlundmlRoa
■ KMliU'*Bloaat.pp.4t,lit«.*p«rwrfitluala««BiMilIi tWwt P1m> in Muuirui CourUt. i. p. lit. • pra Mtata lattMhanw.' ta O* t1^ BoU of SI U«B. L «• and p. >T, 'ladtetons iiiwl^lai.' ^ » * mi^ tadk)M.*p. M 'indlwM a iiiiii— *■ liMsiriii,' ^ f? -istiJMti ■» bnaAmonaa.'
• la VtoaamAy Ihs WBlnai to M*Ma Um wuri Bh Hhisiiii^ pp. SI -3.
• WhsB a pMwit noM eborsl •( Sdubor^ to shsptn; Iks dsaa asks the flaooB* lor s jalpnail i B«t. A OasstoA. L 9k.
1. ni. § 1.]
The County.
549
this procejis is ao rapid that we have now-a-dayH eome difficulty
describing the ancicni courts without using foreign or archaic
Still the cominunal courts preserve their ancient form.
sr Edward I. Hengham says that if a false judginunt la
pveu in the county court, the shcriflf ought not to be punished ;
5^' the county, that is, the commune of the county* is to be
punished ; therefore, he adds, let the suitors beware. Perhaps
in his day some explanation of this state of things was thought
necessary, at any rate he gives one: — shorifli; might err from
partiality or from iguorance ; besides aheriflfs are sometimes
. meu of little substance and would be unable to pay an araerce-
^Bment if convicted of a folse judgment. Therefore, says he, it is
^^ordaincd that the jmlgment be given by the whole county'.
That even in the thirteenth century the participation of the \'^*'"*
suitors in the judgments was no mere formality we may learn coanty
^■from records wliich give uh valuable glim[>se« of the county
^Hkourts and their procedure. In 1226 therv was a quarrel bo-
^Btween the sheriff of Lincolnshire and the suitors. The vorsioo
of the story favourable to the slieriif Is this : — One day he held
pleas in the county court from early mom to vespertide and
then, since many pleas remained unheard for lack of daylight,
he told the ' stewards and knights and othcre of the county '
that they must come again next morning, hear the plaints and
make the judgments. On the following morning the sheriff
took bis seat ; the knights and stewards remained outside the
houHe ; he bade them come in, hear the plaints and make the
^judgments. They refused, and even those who had entered the
^Blouse left it saying that the county court should ouly be holdea
^^for (me day at a time. Therefore the sheritf, since he alone
^^Couhl not make the judgmeut^i, adjourned the plaintiOs and
^B^fendants to the wapentake courts; seven score coses wore
^■eft unheard. Then he held a court for the ten wapentakes
^Bof AucsAtcr, to which came many, both knights and others;
(t7I among them Theobald Hauteyn and Hugh of Humby ; and, the
pleadings haWng been heard, the sherilf told the knights to
make the judgments. Then Theobald arose and said thnt they
ought not to make the judgments there nor elsewhere outside
the county court, for he had lately been in the king's court
talking with the Archbishop and the Karl of Chester and other
jnaguates and be was certain that before three weeks were out
' Hnigluin MB«nK, trnj). i*.
550 Jurisdiction and CoinmutrnJ Affairt, [bk. V.-
they would have tb« king'tf writ freeing them from acttoiu. Thereupon tbu sherilT aniwcrod that for all thta h«j fthoald not stay hie hand from doing jtutice tu the |XMir uscil he received soiue oummand tn the coDtnry; and oooe OMlv h* bade the knighta and othi'm make the judumcfiita. They thmi asked leave to talk the tiiatli-r over bv ibenuwlrck and went ouL While they were in conference. TlieubaJd and ilu^b (-aiBe to them, and protested that the sherifT wan infringing Magna Carta and the fraoobiw* of ih«* mogwitaa, aod adviwd \hvm to make no judgmeota. Thin ihey entered the Immw*. tad Theobald an their iipokesman aaid that they were onl btMud «• make any judgmentJi. and abutied the thmnS and his warrant fur holding pluiu in the wapeotafce. The aoiwercd that he thought that be an >hcnflr and bailiff of the] king had warrant eoouf^h, and then df(Art«vl. hi* nndunu. Tlit*n aruw ThomaA FiLx Simon, tht* lUcward of Jiilui Montiall, and said that Hugh wait wning in demanding Iha sheriff's warmnt and that it was rather far Ungfa to eliow whjpj the eberiff should not hold pleas. And then ThemiM dveflied •! doom {et unttm \ud\c\um fecit idem Tkomasy * That*s doom,' was the econiful aoswiiri * wo shall have yoor lunl hcxw presently and will tell him how yam behave ytmrmiU m %km oooniy'.'
We haro told this curiona •tQf7 at length beousw it till tmtes several points, the eoB»tituti<4i uf th» voiat by 'ihcl atewards, knighte aod otben^' the amount of buuiw ihal it has to do. such that after a lun|f day's work a hnadrvd «■! forty causes must stand adjoumod. the imwilhngaea of the auitoni to do anything that may incnaue the bonleo uf $hm •nit, the position of the sheriff as the |w)Miwtiny oAaer, incMnipetenoe to make jndigiDeiits. Ovur aod iiver again function of the suitors it defined as that of making ji And it is moch rather as 'judgva of taw 'than as ', bot ' — if into mich a oootext we may introdoee tbeaa term*— that the suiton are sxpoelad to be aetivw. la Mwntooith etntoiy John Smyth eookl boeM of tlw | jofltioe done by the free euitoni of the bnndred of where * there hod not been in any age sny trinb hjjnwy*' A
eoUeetkn of pcoeedent* designed for the oae of the
* y«to Book, Id. 1710. BviaMpLflUL
CH. m. 5 1,]
The County.
551
the manorial courts baa come down to iia. In most of the hypothetical cases all is supposed to go smoothly ; the pUuDtiff pleads, the defendant pleads, and then the Rtf^ward as a matter of coune gives the judgineut of the court, tu the effect that there roust be an inquest or that the dcfeudanb is to bring compurgaton; to prove his case. We may indeed read through almost ihe whole tract without discovering tliat the steward hae assessors. But in one case the defendant does not deny the plaintiffs plaint with adequate particularity. Thereupon the steward bids the parties retire and addressee the dooms- men : — 'Fair sirs, ye who are of this court, how seemeth it to you that the defendant hath defended this?' A spokesman answers that the defence was insufficient. The parties are then recalled and the stewaril iufonntf them of the judgment of the court*. Probably in a manorial court the steward would uften have his own way; but a sheriff might find that some of the suitors of the county knew mure law than he did. and our story from Lincolnshire will show that they might have opinions of their own about the meaning of Magna Carta. To give one more example: — In Edward I.'s day the palatinate of Chester had fallen into the king's hand ; the justiciar of Cheater was the king's officer. On one occasion he was presiding in the palatine court and Ralph Uengham, one of the royal justices of England, had been (tent thither to act as his aKses»)r. An assize of last presentation came before them ; certain usual wortls were mi*.sing from the writ. Thereupon arose one John of Whotcnhall, who waa sitting among the rioorosmen of the county, and asserted that the Earl of Chester had delivered to them a register of urigiuat writs and that the writ in the present case conformed f« that register. The doomsmen then demanded an adjournment until the morrow, and then one of them pronounced the judgment. Hengham declared that the judgment was against law and departed. Thus, even in the presence of a royal justice, the doomsmcn of Chester decided questions of law'. On other occawons we find these 'doomHmen and suitors' asserting that before a judgment of their court in evoked to the king's court, all the barons and 9] their stewards and all the doomsmen of the county must be
> Thv Cuart Uftroo rSelden Boa.) p. 48.
> Pkait. Abbiw. 868-0.
5&2 Jurudiction and ChmmMsnal Affairs [\
mimmoned to decide whether they will wSjuxA by the judgnMOft or Mtneud it'.
We learn from ooe paoaage in the Lege* Hmnd tlmt if iIm judgefl disagreed the opinion of the majority prevailed*; ia aaolhur paasHge we are told that the opiiiiua which in lo pre i» that of the better men and that which ia movt aooeptafale the justice. The latter text, thnuf^h not uoainb«|pioaB, MM to mean that, if the dooimiuien differ about the doom, the aheriff or ulht>r prt'.Hidi'ut of ihu court may adopt the ruling thai be thiukH bo»>t, but should have regard Ut the nak mod tvpttto of thoae who have offered their opiniooa'. A oaae wontd neeoMiarily bo heard by the whole body of suitora. In the 6nft pUoe, some might be rejected from the judgment if I lor diverm reaaona, in particular aa not being tile *peef«* of tha parties ; for it ia in this context that we firat bear tha phnm that became famous at & later time, tmdieimm jMn'Mn MMrwa. Every one is to be judged by hia peera and by meo of the mow district ; there are bo be no ' foreign judgmeuta,* thai ia kt «ay, judgments by strangeni; the great man is not to ponali fagp tlii judgment of thoae of lower degrve*. How Car this daagwewfy ariHtocratic principle waa carried we ceo not my; to all ap- pearanci* the old scheme of estates uf mm. which raeogened soch equntionk as I ihegn » 6 oeoris, gave way bafaiu fisMdal influoucot. while those iofluonoea were not powecfvl ettough u flufaatitute in itn stead a dsasiftcatioo baaed no the kinds or the various grades of tenore. The small ant nut judge the great: — oo iDoro aoemate princsple oaa be In the second place, it seems to have been a commott at l«Mt in certain disUiota, for the parties to alset from theeuium a few judg^ to decide their diipaia; both
* Pbdt. Ahfarv*. ISf, M7.
* Li«. Hanr. «. S, |1
* Urn. Roir. e. SI. f a : • fisak iul«ait» mtOonm M sal ■oqnwmit.' Ena it imtUUm her* Mm ' )tHitoi * maA sot * riM «oaUb»(orlluJiuiiM(u aoetdaaa wtiiflh ■td»lttaiM lay. U Itlla fiHtltfa mmaa lo b« olUa iItui to Uw AmiM or oUwr BMrt. Th* fowtkl UMai7 of tbm Ham fcais li ihai IW •kail b« ibal of Iha maimr at fmdm pan. Bm akan |l M* Monnaa Boaina, pi. a : if Iba dinrator totk mnimtkm mtaatUr, W daCw««4 »() uoUmt mmJoo.
* Li«. Hwir. 0, SI I 7 : ' OmsfsiaiM fv •faudan pnincMuuii |M»acmi« mm Mfam Modta ■■ait
«. n, 1 1 1 ' BM aammiuum ni^mpitm Mtaonua lii4iMUa
CH. ni. § 1.]
The County.
553
might agree in choosing the same men, or the oue party would choose half of the whole number, the other party the other half.
We may well suppose that the ordinary business of the J**" court was transacted by a srirntl group of active men. Of such a group we hear something, and the members of it seem to bear the strange uame bunones or fmzones. Bracton tells us that, when the king's justices in eyre come into the county and have proclaimed the object of their missiou. they shall go apart, taking with them some four or six or more of the great folk of the county, who are called thu btmvnes uf the county aud wh(»e opinions carry weight with the rest, and shall bavo a colloquy with them*. To suggest that in the place of this curious woni we should read barones is eaoy ; but ihu same word occurs l-Isc- where. In John's reign the county of Gloucester was amerced for a falsv judgment; the roll which records this adds, * And let the knights of the county who arc wont to take part in false JudgmenUt and are buxones iudiciorum, be arrested*.* Neither ige would suggest that this title was oQicial, or more than 'cant name for the active doomsmcn of the shirc-moob ; but the context into which Bracton inti-oduces it may servo to show how the way was paved for the Justices of the peace of a later time.
To what we have said above oonccnitng the competence o^^^^'" this court little can here be added. Seemingly its jurisdiction cmti. in actions for land had becunm of huioII importance in the oonrse of the thirteenth ccutury. It formed a steppiug-^lone between the feudal court and the royal court, and he who brought bis case thus far meant to carry it further. As regards personal actions, iu Edwaid L's day its competence was re- stricted wii-hin a limit of forty shillings*. When, how aud why Sd] this limit was imposed is a ditficult question. Possibly we may ti'aoe it to an exposition which the king's justices had given of the Statute uf Gloucester (1273), though this statute
* Leg* H«nr. o. 81, 9 S: 'In quibiitdBin loou ntniDiqtM oUgitttr todialam. UMidirtBi ab eU quonim eel acgolium.' 'J'ho liiatory of Batnse; Abbey, o. ilTii. p. 70, dMorib«t ui Mtiuu broaght in tlie days befoni tbii Coni|umt : *uirl tMitiiiM du amicU uUla»4|u« pftrlia pKii Quinero oWwUmi ip«i indiom «otunl* tiitront.'
■ BiHtoa. t 116 b.
■ Placil. Abbrav. p. 45, Tbe word oooars twiot in lb« rcooid.
• briUun, i. 156; FlelK, 133.
554 Juriaduition and OommmuU Affairt. [bk. n}
on tho foco of it accnui to favour ihc local Cribuiukh, merely aa^K that none shall have n writ of trespMM J king's court unletw hv will affirm that tht* gootla lakaa ««re worth fort^ shillinfp at the least'. Bat the mm of Ibrty ahillisgB in mentioned at a raaoh earlier time. In ib« Iria4 RojL;ii«l«r of Wnt« uf John's dajr a writ direccii^ iIm abcriff lo hold a plea of dubt ( in technical Ui^tUig« * a Jiutiem $ut dBln*) is given with the remark that if the debt b« leea than forty ahillin}!!! thin writ can be obtained without fpft. thai is witlwi payment to the king, while if the debt is greater the pkdatiff most find security to pay the king a thinl of the Rum thai be reooven'. In a treatise of somewhat later fUte* w« fod tW same rule, but the limiting sum has beau raised ftooi kmtf shillingH to thirty marks. In general a plaintiff who wont to tho county court to recover s debt did not waul asy writ aft all. though the royal miiwive might be useful, aiooe it woald urgv a dilatory and not im|)artiul sheriflT to do his duty. Ft^rhnpH mnae oombinatiirti between a rule about the ises to be paid for writs and the mlo laid down by ibe 8l*iate of Olouooster produced that liniiuiion of the coipps««nc< of o«r local conrto which iu the cod was their ruin. Howow, ia Edward I.'b day min was a long way ofl^; forty shilliagi waa m yet a good round sum.
One act of jurisdiction, one snpffemo aad ■olomn aei, coakl bo perlbrmed only in the county courts and in the folk ■wmH of London, (ho act of outlawry. Kven the king's court ilid osl pcrfunn it. Tho king's Justicea could order that a man be * exacted.' that is. that proclamatioo shoald bo iimmW him come in to the king's peaoa, and oookl fbrtlMr in case of his not appearing bo aboaU be outlawad ; b«t the oeivmony of esartion and oatlawiy oooM tako plaeo only m a shire-moot or folk-mooL And so it is even ia oar owa day, or rstber so it would be. had not outlawry beoom* name'.
In the main tbe county coort is a court uf law , k«l the middle ages jurisdiction is Devur very cUarty
* Sut. 8 Bd«. I.e.*.
I lUiiUaJ. HIaiory of lb> RssfcHi i . nw. I>. B., W. Ill ' MsiUaad. OlaavOI laviMd. lUn. L. H, mL vi
* Ma WOkm wu antU««4 ia tks mmKHj ai«l af : Taos tn Bnsk Bfe«M siar Holkanw fo Iks m^Aj mt Bsporti. ^
CH. ni, § 1.]
The County.
555
\irom gDvemineul, aud. as hiut been sufficleutly showu elsewhere', <the aasembly of the abirc sometimes has Hscal, military and Administrative business before it. It can even treat with the king about the graut of a tAX. and uUimatBly, as all tcnuw. it sends chosen knighte to represent it in the parliaments. Still we should have but little warrant for calling it a governmental assembly. It can declare the custom of the county, but we do not often hear of its issuing orriinauces or by-laws, though, with the sanction of the justices in eyre, the county of North- umberland, all the free men thereof unaniniouely consenting, institutes u close time for the precious salmon'. Nor must we endow this assembly with any inherent power of impo^ng taxes, though the liability of the county for ihc repair of certain bridges appears at au early time and may occasioually have ncces- Etitated a vote and resolution. Thus in John's reign the Abbot of Ijlleshall says that the sheriB' and other magnates provided that he should build a bridge at Atcham and in return might take certain tolls". Still in Edward II.'s reign the coniniuui- ties of Shropshire and Cheshire go to the king for leave to levy a pavagc for the improvement of a ford*, and, as we shall see below, even the boroughs did not at this time aspire to much liberty of self-taxation.
Hengham speaks as though the county conrt was sometimes Flaw af hold in the open air and iu out-of-the-way placcs^ Uaually it was held in the county town; but in Edward ll.'s day the sheriff of Suhhcx had been holding it at divers places, and to Bx it at Chichester required a royal ordinance*. In Henry II. 's reign the county c^urt of Derbyshire was held at Nottingham until the king established it at Derby on the petition of the Derbyshire folk'. Some moots may still have asacmblod in the open air; the Lincolnshire court sat in diwrti*; Eiirl Edmund built a great hall at Lostwithiel for the county court of Cornwall*; but we still hour of 'a green place' in which the court of Essex was holden'". Apparently iu old times the
Slablw. Const. Hut ii. 908-310.
* Nortfaaioberktid Anizo KoIIb. p. 90S. ' BelMt Pleu nf Ihe Crown, pi. 17». * Rot. PkH. i. 897.
* H«u^ham Motcna, etp. -I : 'qui* fici|aent«r ev»oli qood comitotiw tenfnUr tn Bilriii »t campettribaa forii tIUu «t alibi.'
* Uot. V%t\. i. S79 ; we k1m> Sut. 10 H«o. TO. «. 84. ' P. g. W. US. • Bm abov*. p. 540.
* Bob. ful. L S»S. " B. H. L 142.
MMioD.
556 Jurindiction and Communal Affairs. fiiK. n.1
doonuinen of the ooart s»( upon four brorl.oB ttnrnogvd ia • aquare; what was dime iu court wm donu ' wiUiin ibv Sam
bcDchc4'.*
The Hundred,
I
The conntv u divided intA handred^ nr iDtJ> wapentak kditfriei. into words, the lerm ' wajKutaku ' app(<anng in Vorluihire. LiucoliiBhire, Dcrb^'ahtrc, Kottiogbnmfihire, the term ' wmni' m the north^mnicMt coiintiea. It in well knowD that Um fliaeof the huudrod varies vary greatlv, but that it smiim aosonltafc I* a certain general rule. 'Thus Kent and Su«ex at the ktnM whPD Doinosday Book waa compiled, each coatoined tDocv ihaa uixiy hundreds, as they do al praaeni; and lo the oowitMa which compoeed the aocient kiogdom of WeoMX, tbc huudieA are almost as nutneroua, while the irregularitr of aiae, and Uw 8catU<rod confunion of the component porta of th«M ancMSt hundreds must have been the reauU of usurpation or of lisfao-
lident gntnUi On the oootraiy. Nodblk and Saffutk (lfa«
RaMt-Aii^litui cotintii-it) inaintAin a rBgul.> '' liruioa iCiU
u|ijiUcubl<.' iu uiauy inntuucva Lu the adnii n of jaatiofc
In the midland oountieii the hundreds incrvane in aiie, but an not di-ficitmt in regiilaritr. In Lancaahiru {a eoonty of gwlsr extent than any of the Woaseic cottntiea) then ara no man than six hundreds — in Cbeahiie, seven: — and upon the whuJa so irreguUr is this distnbutiun of lerrit'jry, thai while aoaw ^ the eoutfaeni hundreds do not excc«d two sn^uan uilea. — .. ^_
the hoodredi of lAOcashirc arenge at three hmdnd^H
square milea in area'.' If we ooosider twit ocnaage but a ■»«« 1 aigaificant fiKt, namely, tbc number of vilU in (he huadrvd. w > **4 are brought to similar reoultti. A Kvntiith bundmi will sJLem contain but two. three or four Wlb : thare aaau to ba i in which viU and hondrvd an ooCanaiiKiua*. A
■ NQrtlwnabrtsBJ Asriss Balls jlMllw Bsa.> ^ Wi la ihc bonragb ooart al TdIdm fn&mBm^ liki ft^m ■OAMlUo-i Tkinlll«p.Rwt.ltfl& A|t.M9. In km <hr> *!» hMou ttn ■oBwUaiw mUm) lu * fc Mtlifa.'
* PopulaUaa AliMui, !•». *el. L pp. ai*->T.
• Thaa ihs hsnJial «i Uaiday — ■ » apiiii mt lbs IbU. I. t6&.
CH. m. § 2.]
The Hundred.
567
AccordiDc to the Lenex Henrici Th*
* "^ ,, btmdred
ordioonce conn.
of a hundred is commoner than n ' detached part' of a county; some hundreds have from a remote time been extremely discrete.
The hundred had a coart. it was held twelve times a year' ; but in 1234, an Btates that in Henry II.'s time it was held at fortnightly intervals and declares that for the future it m to sit hut once in every three weelu^ It seems to have been supplied with suitors in the same way that the county court was supplied :— the duty of suit had taken root in the soil. In some cases the number of suitors was small. We read that in the wapentake of Bingham iu Nottinghamshire there were but twelve persons who owed suit ; each of them had been enfeoffed to do the suit due from a barony; the baronies of Tutbiiry, Peverel, iTCtot, Paj-nel, Dover, Richmond, Gaunt and Byron were ^resented each by a suitor, the barouies of Basset and Deyncourt by two suitors apiece". On the other hand so late as the reign of Charles I. the court of the hundred of Berkeley in Gloucestershire had four hundred suitors, of whom 'seldom or never less than twenty and commonly many more attended*.' It was a court for civil, that is aon-criraiual, causes; but, unlike the county court, it did not hold plea of lands ; thus the actions which came bef»)re it were chiefly ncbioos of debt and trespass. It does not seem to have been in any accurate sense inferior to the county court: thut is to say, no appeal or complaint for default of justice could bo taken frc^m the one to the other.
Those hundreds which had not fallen into other bands were n 'in the kind's hands.' The sheriff seems usually to have letJIjo^-g them at farm to bailiffs; the bailiff presided in the court and ''*"^' after paying his rent made what gain he could from fees and amercements. Complaints an frequent that the sheriffH have raii>ed the old rents; the bailiffs who have to pay advanced rents indemnify themselves by new exactions. In Snssex each hundred seems to have had a beadle, that is a summoner. who was called an alderman. We are told in lulwanl I.'s day that in time past these officers had been elected by those who paid the hundred-scot; but now, at least in one caso, they buy their
< Lee. Reo. 7, M- ' Hsa kIwtc, p. US,
* a B. ii. am.
* Btnjrtli, Live* of tlw Berk(d«yi, iu. 11.
B«d4mIs In prinia
ttutimot
Imndrvd.
$58 Juriadiciion and Commutuil Affain, [b&. u.
offices ftod uiako a profit bv extortiou'. We heAr ftirthar tfaak such of the tenaDto of the baruny of L'Aigl« aa owod suit to th* hun'Inul amrt paid tbe Hhehff £^. 17ji. 6d, a y«ar in (mler iKai tboirnuii to the county cotirt might be dooe fordma by tKc aldvrmen of tho buDdr«da, tind this tMW hint a» to lb« aetoal eomponiliun of a shirc-moot is wclcuine'.
But many of the haodredi had been gmatod to priv«l« pononR. Kmm 1255 we hare an account of ihe thirty 'Oaa* buDdr«<lt> of Wiluhiri'; sixttteD and a half wei« in th«^ king** hand ; twenty-two and a half were in the haads of otlMEra. WluU is more, in thirteen oaaea the lord uf the huudrad **>**-*t** Io exclude tbe sh«iff from holding n turn ; be himielf had ilka view uf frankpledge throughout tbe hundred aave wfaiow ihi* waa in tho hnndn of the lorda of manors'. In 1320 t^ dm* of Devon mid that almuat all the hundreda of their fbare belonged to the magnates*. In this Moae a ' bowlrBd ' in ■» 'incorporeal thing'; tho lord of a huudred need Doi ba lotd or tenant of a HDgle acre of land within tbe preciact
The buuilred, tiko the oounty, won conceived Io bo hi^ represented by its oonrt. If the court gave a fitbe judgneM. the hundred bad to jiay for it. And tbe boadred, Uka (be ooooty, had oummunal duties and oonld be fiiwd lor. uaglMl of them. The cbiof example is tbe fiuninu rontdrr fioa If ft penon «aa slain and tbe t^Uyrr waa not prodnoed. tbMi lb* bnndrad waa fined, unites the kiuafolk uf tbv dead man «««M como and * preaent hia Engliahr>-.* that in to my, pnivv hna to be on Engliflhrnan by birth. The Sutul« »f Wioebaator < ltS5\ made the hundred liable for robbcrioa committed wiibin lU borders io case tbu rabbun» were not pcodoeed'. On tbv olb«r > " hand, we do not in tbiB age hear of the boDdred aa bariaf any communal property, though a paatan Ibal waa 'paaamm' to a whole hundred may ttill have exiated*.
Twice a year the shariff makes a pcvywa or ' torn ' tbnii^ the hundreda, or imtfaer ibraugh thoae whioh an doC to iW bands of aueb lonla as bsTs tbe right to eiclttds bin. Tbs Laffwa litnriei tell us how twice a year a ipseially full hwMlMd oout is to bo held for the pnrpoee uf seeing tbsfe
> 8. H. il. sit, 117.
■ B. H. il. SSO-SM.
■ Stot. Wttit- IB B4«. I.
• MAlllADd. OutllMdfe^ Book
wiBvoail.p.l«.
CH. lU. § 2.]
The Hundred.
559
^
are full aod that all men are m frankpledge'. Henry II. by the Aasize of Olarenduu ordererl the ^heritfs to inquire of robbers, miirderci-s and thieves by the uath uf twelve men of each hundred and of four men of each vill, and at the same time he directed that the shen'ffH Hhoiild hold the view of frankpledge as well within the fi-anchiHes of the niugnate.s as witboat Theae purposes are answered by the sheriff's ' turn' (the word occurs in the charter of 1217") — -the object of the tnm ia ' quod pax nostra teneatur et quod tethinga intcgra ait.' The procedure of the turn at the end of the thirteenth century was this: — E^h Wll in the hundred was represented by its reeve and four men, or each tithing was represented by its tithiug-mau, or perhaps in some places both systems of representation prevailed concurrently: — the representatives would for the more part be pilUini. Then besides them a jury of freeholders was wanted- It is probable that in strict theory eveiy freeholder should have been present, but twelve there had to be. Then the sheriff set before the represen- tatives of the vilU or tithings a set of inquiries known as ' the articles of the view.* The list seems to have varied from place to place and time t<i time. Its object was threefold, (1) to see that the system uf frankpledge (of which we shall apeak below) was in proper working order, (2) to obtain accu- sations against thoee suspected of grave crimes, in order that the sheriff might capture them and keep them imprisoned or on bail until the king's justices should come to hold on eyre or deliver the gaol (for by this time the sheriff had lost the rer uf holding pleas of the crown), and (3) to obtain accu- ioiis against those .suspected of minor offences in order that they might be amerced by the sheriff. With this last object in sight the articles specified many petty misdeeds: hue and cry wrongfully raised, waterooursos impeded, roads diverted, brawls and affrays, breaches of the assize uf bread and beer, and BO forth. The representatives of the viils or tithing:? in answer to these u-ticles made preseutmeuts which were laid before the twelve freeholders, who bod power tu reject or supply omissions in them. Upon the presentments thus en- dorsed by the freeholders, the sheriff took action, issuing orders for the arrest of those charged with felony and declaring those charged with pettier misdeeds to bo in the king's mercy. He ^ liif. Buu. c. a. ' Chuter of 1S17. t. «.
560 Juritdiction and
Affairs, [UK. a}
seems to b*ve bemi the only judge in this ocrart*. but tb« UDereeoMBU were 'AfiTeeKid' — that is to ssy. Uw vDooni to be pvid by each peiwn who had fmllon into the king's flstny WM fixed— by two or mote of the sniton who wen rrorn to do the work Justly'.
r/tf ViU and The Totfiidl^
fllk.
TQlkod
U seeniM nearly true, though uot quiic true, to my that the wfaulc of England is divided into rilU: tuittHy tme, fbr it is oommoDly Msuoied that evf^ry spot of Und most Ua withmj ■one till: nut qnit« true, for it may be that then mn <p(M*) 90 highly cndowrd with iuimuDitiea, so ntocfa oalsade tb«- ordioary rales of police Uw and fUoU law, thai tbey an aolj Booounted to form part of ouy vjll. while in all probability there are some tnwts, which orv de«ined to beloog to twe^ three, or more nils in oomroou. Even a otty or bonwgh is a Till, or i>«Thn]iH in ttome cases a group of vills'.
Of tbc varying size of the vilU it la ncedlcsK lo ipeak. for i in gon«ml the vill of tbc thirteenth centory is the * dvil partsb ' of the nintitfenth. Tho pKriMh Im ohginolty a purvly nrcV-^ sioslical diatrici, and during tht* middli) ogvs it is nu aul in the geography of our temporal law, thoogfa tnat tuna M time the secolur courts muot notice it when dispotes about tithes and the like*. In HDathem KngUnd the normally coincided with the vill ; in the nortbera cowntiea
■ 8e in the eoatt Iwt lb* bailiff U Ml* jwls*— *i «1-8F.dw i p. a&: -lelMrUfcuovoiorMlbntBladMm
* BcUct Plwa in MoaorUl ConrU. pp. xrrU-tuHa
■ PortMstw. D» LMtdikiu, mp. U ; • Hiin<4r«4a qiunini •ppalUttoiM ooatiiMntar el bwii ■!<[«• v!<l lix-tut a1i'|u» qfii iKMt lafr* vtlUfvin •abttsa loei laCn viLU* d« «Mam rilUa pu« «m a«a l^fMsn in Uw rala •lueh ■tpoeti Uut mnnjtttm iHmi vOI bt aU* to nun* U>« rill or vilta b vWoh iW Uai BiAU«r, howarw, «m dftbotat* : in »taa* utiim§ it ■otM taoOmtMiT. B.Mi^ U U». IL t irideh tfai AnU Mi fab um wUeb «M u M win IM tUU. y. B. PaMb. 17 B4w. a t U« (■ fiolio w M^ lo 1« DintWrwl M4).
* TliAl Urn SmImIui UUm of tlN» «•• wlUctal ttmm
ad|ibr***v'i t.a
ni. § 3.] The ViU awl The Toumxhip.
561
viU«.
parishes were large: often a pariah consisted of a group of vills. lu our raorlom law the parish ha«, at least in name, supplanted the vill or township; but ihia 1.1 due to causes which did not come into play until the Tudor time when the rate for the relief of the poor was imposed. The law then began to enforce a duty which had theretofore been enforced by religion and naturally it adopted for this purpose the geography of the church. Then in course of time other ratea were imposed, and the poor's rate was taken as their model. Thus the parish became the important distiiot for must of the purposes of local government. But this victory of the parish over the towni^hip was hanlly more than a change of uame. The townships uf northern England insisted that, albeit they were not parishes, they ought to be treated as units in the law system, as parishes for the purpoaca of the poor law, then by force uf statutory interpretations the old vill got a new name and appeared aa the 'civil parish'.'
As the county or hundred may be discrete, so also the Discnte vill may be discrete and apparently some of our villa were compoaed of scattered fragments. In certAin parts of Glouces- tershire, for example, until scientific (i*ontiers were established by a modern commission, a pfirisli cymsisted of a large number uf miall strips of land lying intermingled with the lauds of other parishes, in auoh a way as forcibly to suggest that at some remote lime some one agricultural conmmuity split up into several communities, each of which was given a share uf land of every quality*. A detached portion of a parish lying teu miles away from the main body is by no means an unknown phenomenoo. while of certain parts of the north of England we are told that the townships are intermixed ' so that there
1 Thia proceu be^iiu with Sut. 14 Car. II. 0. 13, aec. 21. At loogUi In tS99 Ibe rols U I&IJ down thai in atatotm the vrard ' pariflli ' in to mamo priokK fikofe * ft plaeo for which a separata [loor rata la or oao Im marda, or for whiah ■ separate oranwer in or oao. be appuinldd': SUl. 88 aod 53 Vic. c. A3, ue. 5; alio 39 and 80 Vic. c 113. bm. IS. We ooald wish our oewlj iureotod * parijdi eooiusils ' a b«tier namo.
■ 8*f the V07 iiitamting map of Dooiilhorpe givvn in Oonraie, ViUagB Cottunnnitjr, p. 3$8, and at tltc imd ol the Report of Uu Commiltce on Comnioni* Pari. Tap. 1A4I, vol. 5. Sm alvo Roport uf C'ommittoe on riw of PartnliMi, Vail. Pap. 1878, vol. 8. MiDulm of EvtJrnoc. p. S9. witere Col. Leach mentioiu a case in UloaoMtvriture, of which tlie proaent writer luu aome knowledge: — aome t«o pariahaa were iataniiixad lu the muat iotrioata faahiua.
36
562 Jurisdidion and Oommwuti Affairs, [bk«
i4B«0i.
in the most complvto jnmble which it is poaribW t» oooomw*.^ The * exim-panKhiiU place ' finds iU expUuUioii to iIm hu of the oburch ; iu maoy ouos that expluatioo D«ad gv bMtk n*! fnrthor tbut Moine |iap«I bull of rec«nt (lato ; bnt frben, \yiag outndu «hy known eceleuAntic&t diviiuoD we find • noglo ofs* koown an No Man'a lAnd, und then aAotb«r inwU pniek bwuing the nuhu luitnt; which hu but two inhabitaotB, and tbdn A No M&u'fi Htaih of ninv Kcn^t*', wv iihmll be fttnn|[ljJ tempted to boLievc that lu there wcrv oxtni-parochal |>Uca^| •0 iJso (if wtt Duy coin a oev Urm) there were 'Mtn-nlW pUors. odds Mid ends which no township would iiekiioirl«d(t» u ttfl own. So rIao in our owu day aoaie Urge moon in %hm north uf England orv. or have lately beeo* dwMwd to ba tenilory common to wivunil differeot towiwhipi*.
Beside* vill» thi^rc wore homlete; but the hoinlet always to have lain within the boundorica of a rill, oad, ihin^b the Inw might f<>r Momc purpcMu take note of tie still it seems to have been but nuely treated ■• a mere geographical tract On the eibcr bond. lb« vill township wiu) no mora port of thu earth's sar6c«. it «« comniiniity*.
\Vr linve little reason for believing thai all oar Et^tiab nlle^ oonfomitil til a loogle t>*pe. or that tbeir biitanca bod bwn appruximnlfly iik'nliraU. But thtfro iji a type bi which laaay confiimiod and which wc miLst keep balim our mindo. Il it thiit of thi- nut'luuted village vitb opvo 6olda All tbo biMsM of thf vill an* collectod into ona cluittcr. Aroand and iiMdc this clnster ihi'iv may bo many littbi 'daaas^' erafta amd poddoeks; btiL by for the larger port of Ibe lecntory of lbs Till lies uninclfuHx] by any permanent Csfiooa, Tbr ar»bW Us» in two, three or mon great 'fields.* nocb of wbich is cat «p into roultitndinotts stripa Tbeee stripa are reekooed %m W ocno, hair>acree and muds. A villager who baa ta all bM thirty amble acres will have perfaapn aome fvty or fifty
• Dot LMsh, he. elL p. SS.
* B«poci orOoaualtiM oa PuUi nmmiilmlm AiipwiJi. r^ tlT-StSi
• mi Ap^ p. f 4t. • T. B. U B*r. It t 410.
* Th> ao-oUM Statute oT Rz*l«. SMvIm oT tlw t-t\m ^^ L p. tm, iiifcliM SB ia^stay whkh I* lo bt mU$ hj «tlk Aa^fttfe ma4 -imrrx a iS krfstms— lsJbyt<glrta»<B,fc^Mi.Tni>yifa.*kiwlM ky Isw- »ai *» MMMMMpttooiL Tk«aMwfaico(a«HiMtl«fll
OH. III. § 3.] The Vill and The Tmmiship.
scattered about in all parts of the territory. A rude rotation of crop and fftUow, the two-course or the three-cours*? gyatcm, is obaorved, aiid, so soon as a crop has been pfamereJ, the whole of the ' field ' which has bom© it is depastured by the cattle of the villagers. Often the meadows are tiiuiiltirly treated : that is to aay, for the purpose of growing a hay-crop they are enjoyed in severalty, but after the hay-harveat- they become pasture for the beasts of many ' oommoners.' Then there are permanent pastures which are never inclosed or enjoyeti in severalty but lie open ab all seiiaonfl, Villagea of this kind were numerous m southern and eastern England. Others there were which did not widely depart, from the same t}^)© though they already contained some large close» and Home 8evei*Mi pastures. In the west there was mare ring-fenced property, and sometimes the vill looks like a group of small hi^mlets which is being kept together merely by legal and governmental bonds. The quetttions of reraolo history that are suggested by the maps of our villages we must not here discuss or even luise ; but in many% perhaps in most, ea^es the township or comnnmity of the vill can not but be cotnpacter and in flome sort more communal than is the conimnnity of a hundred or a county. Even if there is no corporate and no cuniiiioo property, there m at least a great thsal of cummuu enjoyment, and the economic aflfairs of every villager are closely intertwined with those of his neighbours'. ..■)50] Modem usage may treat the two words vUl and f oum^Atp Vin uid as though they were synonymous ; but in this respect medieval ^'
Latin was a more accurate language than our own ; it dis- tinguished between the villa and the villcUa, between the tract of land and the organized body of inhabitants. Doubtless the English word which answered to the Latin villa was tan, ton, town, a word which in comparatively modem times wo have allowed the larger towns to appropriate to them- selves. We can not say that the distinction between villa and villata was always, still it was very generally, observed. If a crime takes place in the villa, the town of Trumpington. the vilkita, the township of Trumpington, may get into trouble. And so in what follows we shall use vill as an equivalent for villa, and township as an equivalent for villata, thus
' Domesday and Beyond, pp. 10 fl.
36—2
504 Juriidiedon tMnd OMnmwMi/ Jffmrw* (l
dUiiuguiahing the plot of ground firom tbe oommunity inliabiu it'.
For the Uiwiwhip ii« a communittu*, which, «veii if it hm not rightM, certainly hiu dutieo. We nuy reckon up the unM irnp'trtanl nf them. It ought to attend the coait held hf the juKtioon in t^yrv'. It ought Ui Btt«ud the sheriff*! tora. It ought to Attend the huntinxd nnd county courU mhentwn it bM any crime to prceent*. It muHt cotne at the ounoer'a eall to mnko inquest when a dead nuuiN body i« (band*. U is botinH to nev thnt all iu mwnben who ought to be frank pi L-dgr arc in fninkplcdgv. In tome parte of the ooontry the township ie it«clf m frukpledge. a tithing, a horyK and ia thin CAM it 18 reeponnble for the produotmi of any of tte mrnibcn* who is nooueetl of crime*. Apart fnim tlue, ii *«■ biiinul M> arreM malefcotore ; At all «>v«nta if a penon wm ikia within it« bonodariea during the daytime and the daycr wae not arrested, it wan liablv to an amrrctmrnt. In the thirio«>nth century thiit liability wa« fi •soUanad bj
the ju}>tic(M in their eyres; it muat U .. -..i^nualipd fran the liability of the hundred for the murder ftuo and to 6ow fn:;m no known act of legi«lAtiim but to b« immemorial cu»tom^ Again, from of old it was the duty of the township to raise the hne and ay and foUnw the ttail of stolen cattle. In 1231 the junm of Bridgnurth oscnplaiord to the juflticui that the sheriff required of thein tbe
• Tb* notioa dul rilUtm U m dtmi&utii* U HUm It BlttBC Bwonb. vol If . (N4.) p. tUi ••« it tUIu* tOMe vrnisnt...'
> Thu P. Q. W. 398. iha rmmmmmtam of ■ vfU gMi lo ika IM UlUngnuui j B. H. 1. tit, Um eomnw'i chrfc ■iwiM i fOMMMia of Ibfl vm of Sattoa.
' ttanoMM (tf Um Ettv. atabU. SdMl OhsrtM^ sm. tMli of Ik* Oconra fbr llw Coaoly of iiUnemtm, ^iihi.
4 Hm writ of iat4. Anil. UoiMlAr. |i ta$: a. a. L », yt lbs erown an nuM t& th« eovagr tatai b; Uh b (U. tMsbtwartnc Um mmm at ib» n*mm) tmA U timj *• art ■ SBMivttl: tbqp sn uMrsad obm Man ehis ib* tai«i— I* ttfn tbt* ii mattar ai oonplaiBi.
• BnakM, 1 191 b. Onas. OmmtnT tMa, pmttm.
• 8m Ulo«. p- M«k ' 8w suiiito 8 tl>a. vn. «. 1 ) Ook*, $t4 laHilirta. Ii i,
Cnwn,lU». Tha nil* mkb* lo h« ui aaolMt ua» i mi (Na of tb*Ovn. nkSO. 1«7.
ite W
CH. in. § 3.] Tlie VUl and Hie Toiiniship.
565
task of following the trail throogh the middle of the town'. Moreover, it was a common practice to commit prisoners to the charge of the villata, and then, if the prlsoticrs escaped, the viiiata was amerced. So if a malefactor took sanctuary, the neighbouring townships had to watch the church and prevent his escape*.
Most of these liabilitie^s can be traced back into the reign Ewiy of Ueury II. A few examplt^ of aniercementH maybe given of it* from among the many collected by Madox*. The men of Tixover are amerced for refusing to swear the king's assize, the township of Isle for not making suit after a murderer, the township of Rock for doing nothing when a man was slain in their vill, the township of Midwinter for receiving a man who was not in frankpledge, and the township of Newbold for a concealment and for burying a Head man without the view of the sheriffs seijcant.
During the thirteenth century the activity of the township sutauy ^.&M] WHS further developed by legislatioo. An ordinance of 1 233 lu^Mbip. provided that in every tnlta watoh should be kept throughout the night by four men at the leaet. This was repeated in 1252 and at the same time new provision was made for en- forcing the assize of arms. The original axsize of 1181 had not treated the villata as an organized entity ; it bad Tcquirtjd that individuals should have the armour suitable to their station. The ordinance of 1252 decreeil that in everj- town* ship a constable or two constables }«hould be appointed, and a chief constable in each hundred to convene the iurati ad arnia. r Li 1253 this is supptemcntod by a provision that arms neces- sarj' for the pursuit of malefactors are to be prondeil at the cost of the township and are to remain to the use of the town- ship*. The whole system of the assize of amis and of watch and ward was consolidated in 1285 by the Statute of Win- chester ; the constabular}' and the militia took the form that they were to keep during the rest of the middle ages*.
S«lMt Fleu of the Crown, pL 178. ' Ibid. pi. ISS.
Mwloi, Hist. Bxch. i. 541-fiB8. < Stutitt, Svlvcl Chiul^ts : ■ cum uonboi «t Hsgittii et altis leribon tnaia qoM deb«ui iirovidori 4d euslum totiua rilke «i i|nK cempor retuiuioADt ad opiu praedioUe rilUa.'
* The dooMmflnU of llSl, 133.1. I352, liSa. 1385 an) all priiiUd in tbs Selaot Chartata.
566 JftrisdicHon and Comnnmal Affairs, [i
-Cootriba-
[Hoaol 'lowtMdilp
•DfMUWsl
'Jtan
townddra.
m^.
Again, we aee the rill w « diKtrict boand to costnbat* U» the fineH aud amercnnientii which axts impowd upon thv eonnXj oud the huudrcd, fur iiulaiux!, the munler Hacs for which th« hundred u liable. In the Haodred RolU we n«d aonMram oamplftiiitB about vilU and portA of vilU whi^ hava 'subtracted' from thivio dutius by li>rd». who have or to have iinmnnilicH. The vflToct o( mich itubinictioa wtm to iscnue the burden thitt f«ll ou ihv neighbuuriug villa. Bmy cxtenikm of the 'fhuohiacfl' damaged 'the gMah\e,' that M to tsy, the l&ndM and vilhi whioh enjoyed no pmilefpe.
The towniihip ^aia in oonatantly bruught beforv lu ee hnviiig had to bear all niMiaer of unlawful c^mdiouL The Huudrfd RoIIb teem with oomplainta. Not onlj have th« to*»- ahipe been amerced, aocordin;; tu their owu aoooaot urgilly amerced, for the nc^^lert of thrir pc>ticc duties, bat the nyal ofHceni luivu refused tu do thvir own dulitm without being farid b)' the townahipa. Sheri& will not bike priaooen iifr hands and coronon wilt not xufftfr thttn t^t bur)* thrir di until then) had bwn pa^munL One typical itutouor will anougfa. A criDiinal took aaoctuary iu the cbarvh at Fo«)ifcei thti towuHhip wan bound to watch tfaf church until riie oi cntni! : the ciiront'T would not come for ham than a mark ; «a the township had to watch the church for^ daj* to its damagi)'.
The pnurticif of ameraiig thu town^p f'n* ncjrlrct police dutioa may have b^ottan the ptnctice. which n* prevailed in the thirteenth century, of tfanlJng the luwiuhip ON an amiTriablf unit atjMblr of coniniitling miwiced* of amy kinds. Already in Henty IL'n day the lownehip of llalllif^ owe* four inarkii for haWng ploughed np the kiag^a Id 1236 certain Uiwiwhipn am to be amerced fin* having a man to put hiniaelf in Boiain wilhoui waiting far th* of the dhcriff'a ottoer; their ameneaiaat ta to be aBbmaJ hy other townahipa*. On the Hnodn-d RolU we may Sod Moli entries aa the following; — the township of (tiidmanehaaasr baa made a purpresturu upon the kingM highway and priaUd therefrom the third of n rod ; tho whole twwnaliiy Ejneabniy has dug in the king's highway and iihaliaiiai ift the nuiaaDce of the eountty*. In one part of
•rtamly
• B-ataoa.
• Note Bonk. pi. 1170.
• rife B^i. u iiM. a ^
CH. m, § 3.] Hie Vill and ITie Township. 567
the hundredors speak of the townBhips ab communeR (coiH' vimiae) and accuse them of siindry trail sjgceHaiotka ; the comniuue of Ely has (jccupied a fisher}' which uaed to belong to the manor of Soham ; the comraune of Reach has broken thi\mgh the big dike (the BevirB Ditch), so has the coramnoe of Swaifljam Bu]be<:k, which also neglects to repair its bridge; the coummne of Exning has ploughed up the wasto of Burwell, haa ol^tructed the highway and diverted a watercourse. On the other hand, Thomas of Bodeiiham has appmpriated laud fi-oro the commune of Burwell'. Even an aaaautt and battery may be attributed to a townnhip, for the whole township of Keuaet has beaten and wounded two bailitfs". i.65il AU this seems to set before us the township as a legal OrsmbK- entity which has, if not rights, at all events many and niuHi- i^iwtbisf. fariouH duties, and we might naturally Buppose that la onier to perform these duties it must have had some permanent organizaLion : for esamplej some court or assembly in which the incidence of these duties could be apportioned among its members. When however we search for snch organization we fail ; at least for a while we seem to fail. Or^nization we find, but it is manorial ; courts we find in plenty, but they aife courts of manors. The township as Biich haa no court, no assembly. And so with the officers uf the luwaahip : — the constable is a new officer, his importance lies in the future, while as to the reeve we only know him in real life as the reeve of a lord, the reeve of a manor, usually a villein elected by his fellows in the lord's court, presented to and accepted by the lord's steward, compelled to serve the office because he is not a free man. We must turn therefore from the township to the manor, but before that can be reached we must traverse the whole field of seignorial justice. The facts that we have to study are intricate ; the legal principles have tied themselves into knots ; we must pull out the threads one by one.
> R. H. ii. 497-498: ' ThomaB de Bodebam appropmrit sibi ds oommana de Borewetle.' This is a little ambiguoos and perhaps shoald be translated bj • T. de B. has appropriated part of Burwell common.'
> B. H. i. 54.
568 JurMictwn €uui C&mmwud Affairn, [bx. n.
Fkwh.
tUL
§4. The Tithing.
A f^K)d examplu of ikia inlriaiCT' i» »0bnie(| bjr the of fmnkpltii^j^o. Wi* luiTe tuul to mcutioD it wbon Iho HherifTk turn, And again when fpCKking of the Vay duties. Bui oImi it w cloMvly connected in touy wajrs maoMmal afikin, with the ruliition between lord u>d Taken by itself it ia a romarkitble inxtitiitioa and ooc that ■nggeats difficult qucntioiiit.
And fin<t we may look at the law as ttatod bjr Bracton'. Evurj' molt! uf the age of twelve yean, bu he free, be be atrf, ought tu be in a frankpledge and a titbiog (ta frmnt» jrfy'a it in dccenna ). To this rule there ore nameRHM eso^ikioiift aocorrling U) the varying cuKtoma of diflTervut diatrieta. TV magnatee, koighta and their kinsmeu. clerks and the like aevd not be in frankpledge ; the freeholder (in one panage BncioB even luys the frue man*) nenl nut be in fronkplMJgv, nor the citiien who baa filed prop*-rtj: — hia land ia equiraleat a frmnkpledge. Again, instead of being in frinkpbriga majr be in the mainpaat of another. The hiwd uf a UMwefi for tbu appearance in court of the membora of Up hoosdiold, bia aervanta. bis retainerv, Umm wboai bia ImmI feeds, hin manupfutuj or rnainpaH — we may uae a vacy tM English word and aay his toaf-eaUrg'. They arv in hia /riik- hcrgh and need no other pledge*. But, tfacae eacceplioaa bioaf made, a male of the age of twelve yvmn ot npwutli e^glU M be, and it is the duty of the iownahip in which be ilwelll to aee that he is, in frankpledge and tithing. If he is aocwnl of a crime and nut furthcoming and the towndiip hae faiH' in this duty, thou it will be ameroed. If oa the other haai be was in a tithing, then the amenenNnt wil] fidl upon ifcs tithing.
The strict enforcement of thaae raliaa ia abundautlj pnvtd bjr the roUs of the itinerant jostioeik WfaoB an aeeueed p«*a is not produced, his township is ameroed if be wae oM in •
■ BaetoB, L \U^ > Bneuo. L IS4 b; 'slakai, lAsr
■ Da Ougs'* tfHHte a v. ■ssqa
m I waajy.
CH. IIL §4.]
The Tithing.
569
tithing (decenna, theottnnga. thuUtinga etc.), and, if he was in a tithiiig, then that tithing is amerced. But to all seeming the 'tithing' meant different things in different parts of the
»countrj*. There can bo no doubt that over a large part of England the penwiiH Kubject to the law of frankpledge were distributed into groups, each consisting of ten, or in some cases of twelve or more, persons ; each g^oup was knon'n as a 'tithing'; eacli was presided over by one of the a«Aociat«d arsons who was known as the chief-pledge, tithing-man, head- >rough, borsholder, head or elder, that is, of the bork or /pledge'. The township discharged its duty by seeing that U who were resident within its boundaries were in these ips. On the other hand, in the southerumost and some ?rn counties there seems to be a different arrangement: — the vill is a tithing, or in mme cases a group of geographically separated tithings; the tithing is a district, even the horgha ^1 or pledge is a district"; the tithingman is the tithinginan of a place, of a vill or hamlet ; the personal groups of ten or a
P. dozen men are not found. In this part of the country the two duties, which elsewhere we see as two, seeui fused into one : the township discharges its duty of having all its membent in frankpledge and tilhiug by being itself a tithing and a ^■frankpledge*. But further, there were large parts of England ^Pin which there was no frankpletlge. In the middle of the thirteenth century the men of Shropshire asserted that witbiji ^H their boundaries no one was in a tithing; at the end of the ^■centuty the jurors of Westuioreland dtvlared that the law ^Bof Englishry. of murder fines, of tithing, of frankpledge, of 1^ mainpRst. did not prevail and never had prevailed north of the Trent; at any rate it did not prevail in their county. Probably they drew the lino at too southerly a point; but ^^it is, to say the least, doubtful whether the system of fronk- ^■pledgc extended to any part uf the ancient kingdom uf Nor- th umbria*.
1 Sm tbe fuximilo of ■ part of » Norwich fruikpUdfl* roll in LmI JorMialion \a Norwich iSeJ'len 8oo.) p. tJvii.
' Bm the Hundred Roll (or Krnt. where th« AoryAn Menu often (o b« » tnot land. Thni, p. 909, k murder bM been eommiUed * In borgha da ktiiiibMbiim.'
* Falgr*Te, EagL Coiuniouw««IUi, vol. ii. pp. eu-otxrt; Stubb*, Cooil. KL i 91-S; Mftitluid. Pleu of the Crown for Oloaeeaur, p. xxxj.
* P«lgr«Te, Engl. Commonwealth, vol il. pp. ciziU-lr; Stublu. CoqM.
570 Jurisdiction and Cdmmunai Affain. [bk. ir.
cffrmak- ll*.
UllM
Tho maintoiuuicc of tbU «>7t«m ia enforced, nol BMnty ainvroniDento iiiflictwl whitu ihn Lowiwhip or the tithinj; Im«^ failt^ iu iu duly And a criinnud hw* escaped from jintwe, bat alfu) by periodica) inspectionii and what we might call ' Md- davK ' of the fmnkpU!cigv&. Twice a year the dierilT bcUi ia each hundred a sfiecially full hundnd oawt to wc tliat all nten who onght to be on- in fmnkpledge TbcM haU-jrearly nieetinga we can trace bock to thu rr'xf^ of Henry I.; tbty niay bo much uldtir; in ouurKe uf time thoy acx^uire tb« xmaam \ of the sheriS's ' turn.' But though Henry IL io the Amm «f Clarendon (IIRG) had strictly decreed that tfaia buihiii «aa to be in the sIiLTifTi hands', we find in tbt- thirteenUi rratnrT that there oru large innwwyt of mvn who never go now the aheriff*8 turn. They arc iho men of lo«da whii ri^ffatlbily w wrongfnlly exirroiw the franohiM that w known aa 'view of frankple(^ ': that ia to aay, of lordu who in tbair uwo oMnrli aee that their tenauta are in frankpledge and uke tiM pnAts which aritie from the ezerote of thii) juriMJiction ; mwiriiMa they allow the sheriff to be (ucaent, vury oftm they eadada him altogether. Of all the franohiaea, the royal righto m privmle hudii, view of (makpledge if pcfhnpa the tammammti,
TTii* Htrict theory of the Urn aeeiM to have wquiied thel aS the fmnkplcdget abonkl attend the view; bat aa a iiielUi aC &ct it was luiiial for nrme but the chief pledgM tu eitaed; oflen however thjiy had to bring with them a «am "f toowiy which wa» aocsptcd in lieu of the production of their tirhiny Thus a lyatem of repreMentation of tb« tiihiog aroee and my naturally it bpcame bound up in intricate cmnbinatio— wilh the repn«6ntatiou uf the township by ita reeve and lour mt^ Ef^teciatly when the 'view' ia in private hands, we oAan fal that the duty of preaenting offenders ia perfornied by the chisf
Biia, i. BS. In L«it. E4w. Coat W (19^ II l> mU ttel vkat Iki MU/nlMaryM lb* Yotk«hinni«ii \iiharaem»t») «n *v«r mmy bi lb* oricin of Uili laUar word, «• aeXy taA U o( A MOO*; pfpavit. Tboa novdu. Ui. S«S i la ItM M two ■Miuiiffi B8 Iha OkramUi * qaoJ U Aati^BU niennlE CwtBluy. p. US: • nsaij*'* U Ml Th^MMM-l C«rtaUt7, i. 100-7. In Dorthn dUsiiws tha Itw IM a< iatouuiUM.
> Am. CUnad. <b V. TImm it to b» m aa* u^Akm aaMto m
ma ia Um booMt o< Wsmacfari. «ba ihaU tejr ibi ikMtr* hit oourt or Urn teod Ui «i*« Um fciakptoilgm ^ aO N* ■• la aaj snlo ba pkoad M (nt pM«i Wbn tiM afawif.
CH. in. § 5.] Seigyiorial Jurisdiction. 571
pledges, who thus form themselves iiitii a jury. Uuder the infiuenee of the Aaeize of Clarendon, the duty of prodiiciujif one's fellow-pletlges to answer accusations seemH to have been eulargixl into A duty of reporting their offences and making presentments of all that went wrong in the tithing.
Of the means by which men were ' brought into tithing,' C«o»Utii- into the gi-oTips of tea of a. dozen, we know very Uttle. Could Utliingi. a youth chcjofle his tithing ? Could a tithing expel or refuse to admit a member whose bad character would make him burdensome ? The answer to these aod to similar questions seems to be that the men who had to be in tithings wei-e generally unfree men. They were brought into tithinga by «] the lord or his steward and they could not resist'. We may find a chief pledge paying a few pence to his lord in order that a certain man, presumably a bad mibject, may be removed from his tithing. The chief pledge seems to have exercised a certain authoiity over his subordinate pledges; tbey owed him some obedience', and probably in the southern counties the tithingman of the tithing^ the borhsealdur of the borh, was fll:*t> normally the reeve of the vill ; but it is only in legal Legends that he has any judicial powers'.
§ 5. Seignorial Jurisdiction.
According to the legal theory of the thirteenth century bwiUUw seignorial jurisdiction has two roots — (1) the delegation of JSthu"^ royal powers, (2) the relation between lord and tenants. Juria- dictional rights are divided into two classes. On the one hand, there are the franchises and regalities {libertateSt regalia) which, at least according to the opinion of the king's lawyers, can only exist in the hands of a subject by virtue of a grant from the crown. On the other hand, there is jurisdiction involved
' Sometimes the tithingmftn was elected by the men of the tithing. Bot. Hand. i. 212 (Kent) : ' J. B. dietrinxit J. de E. ot esset borgenldre sine electione borgae suae.' In some boroughs, e.g, Norwich, men who were in ensry sense free men were in frankpledge, see Hadson, Leet Joriadiction in Norwich (Selden Soc.) p. Ixvii. But on the plea rolls of some counties, e.g. StAffordshire, we find entriea which state that a man is not in frankpledge ' quia liber.'
^ Select Pleas in Manorial Courts, p. 169.
1 Leg. Edw. Conf. 26 (28). This in all probability is mere table.
572 Jurisdiction and Commwud Affairs, [bk. u.
ib the io«n poatMnon of % mADor or in the wore faet <€ having Icnaiits; wc may briefly obaraoWriae it w being oi civil, non-cnmiiud kind^ finoum in lb« at*t«Mettt uf geoenl theory of tcmpoml jostioe weim to tmglect it. thin we can not follow him. Aa to the fnuichiji«fl he wpmJu itty pomtively. Who eta bestow them f Tho king, and ooljr he, for all jiutice and judgment, all that coocenu the pMOt. aU ooeroive power are hi». Those thingK thereforo that ooBOini jnriadiction or that conrem the pence belanjf lo do one. bot only tu tbe king's crown and dignity, and they can uot bv rated from the crown, noce they make the erown, for the king' crown is U> du juilgraunt and justdoe and keep the peace. jurifidictioual rights can nut bv held by a private penna * it be given him from above.' Then he lays down two mudam: — '* Inriedictio delegata non potest dulegari ' : — ' Nalhini taafMt oocurrit regi'.'
AanMllaa Two very wholceomc maxims; bat it is c\mr tfaaU ibty iiQllilw ^"vo not been obnerved and we may doubt whether the kap themselvcN have made ittreuuuus eGTorVf to maintain thorn. Chtr informadtiD about the fronchiiiea must be drawn fur tbe part from pleading! of Edwanl I.'n reign; bat tbcM, their wealth of detail, are not very aUasfactory, or radHr disduso a stale of things that is not easily deaersbod. Bif^jr in his reign Edward began a vigoroox attack npoa the 6a»* diiass. First by means of inquests, the result* of which reootded on the Hundred Rolls, he ssoeclatned what were actually exercised, and then be sent out fak jiw%M pleaden to demand by what warrant (fwo tKsranio) the lunb were wielding thsae powen. His advoeatw look the Ingtet gronnd, proponnded extrsne doetrineit iha^iiites wludi wuaW have destroyed a Urge half of the exisCu^ *llbertisB.* Bit the king did uot proceed to extremities ; few judgnanli «■» given ; he had gained his main object ; any further ||io«th sf tbc franchises wsa stopped ; in 1200 be eonseoted Id a ttm- promise; A cootinoous seisin for the last hundred yea«»— ih* ooronatioo oi Richard I. was chosen as a limiting to be a sufficient answer to the itkquiry fve
1 A thniUr Jbllsertoti U Jmn far Pnnn I7 frucau. td. 9. y. M*.
* Uniilaa. (. Ub.
• 8«lMi PlMi ts MsBorisI Oomu, pp. wim-waO, txxril.
CH. in. § 5.] Seigjwrial Jurisdiction.
Thus we hear no statements of the law which caii claim to ThwwSHiol be impartial. On the ODe hand, we have the doctrines of tho iawy« " king's law officerSt on the other baud, a mass of facts which prove that theee doctrines, if they are not new, have been ignored. Let us see how far the royal advocates can go. The BO] bishop of Ely is defending his egregious liberties by charters of Ed^r, the CoufcBSor, the Conqueror, and Henry III, Gilbert Thornton to all his other objections adds thia — 'Allow for one moment that all these liberties ai'e expressly mentioaed in the charters, still the fcitig haa an action for revoking them, since he haa never ccmfinued them. As regards the francbisea of his crown each successive king i.s to be deemed an infant. His cane ia like that of a church. Each successive rector can revoke the lands of the church if they have been alienated by his predeceiaor'/ That the franchises are inallenabk is con- stantly asserted Robert FitzNicholos took upon himself to grant the view of frankpledge of two-thirda of a vill to John OifFard ; tbia^ says Thornton, is a Ciiuse of forfeiture ; he was bound to exercise the jurisdiction in person and not to give it to another*. If you urgo long seisin, you aggravate your offence'. Your usurpation can uot have had an innocent be- ginning; every one, says Bracton, must know that these things helping to t.hu crowij*. It is plain to all, saya Thornton, that upon the conquest of England every jurisdiction was united to the crown" : — this historical theory is of great use when Anglo-Saxon charters are propounded. Kven if it be allowed that there are cases in which user can beget title, this con- cession can only be made in favour of those whose ancestors came in with the Conqueror; no churchman can take advantage of it'. And, if it comes to charters, the king is entitled to
' 1*. Q. W. 306. TborntoD makes the same point against the abbot of Rara^ey; P. Q. W. 305.
- P. Q. W. 86; Bee also 10, 87, 88, 105, 242.
a P. g. W. 4. * Bracton, t 66.
= P. Q. W. 4, -Ib'J, 303.
" This curious argument is vmcd by William Inge against the abbot of St Mary'B, York ; P. Q. W. 122 r by Gilbert Thornton, Ibid. 671 : and more tliaii ouee by Hugh Lowthor, Ibid. 076-7. Thus against the bishop of Coventry, Lonthir nayft, ' Tliu bishop can not show that any of bis pradeoeMora came with the Conqueror aud obtained these liberties by [the] oonqnest (per ciiiuiue^fum). for the bishop and all his predecessors were, as one may say, men of religion (qiiaKt iflii/ioni, i.e. iu the same category as professed monka) and they and their church were cufooEFed by others, and therefore they cannot cl»im
574 Jurisdiction <$Hd Comni^,..*u Affairs, [JUL
doubt: ha
be oimImI of his
tbo boDofii of over by 'obscure and gonOTnl
for him to interpret his gift'. 'LtbertaM* mn vamly frrditwl by abuM ur by mere nou-uwL The gmntee nuH take Uto firat opportunity that oocani ot getting meimn of the hmudbam and must nmint&in hiii satmn. la Edward I.'s day b* Imv hi>« right urImw he <^uitt it before the justioea in cyra whio- eror th«y come round. Unfortanaiely the Ibrfated Ubertita tkro «uily restored iu oooaideratioa of a tuoi of nooey. Ii «• thin that provcDta a modem raador from heartily taking the king's iridL' in xhv oontrm'vny. Docpite all that is said the itiMeparabilily of jU!»Lice from the crown. Um king librrtics and cumpolx tho piirchuM-n to buy them onr and over again. Vvlou Wo may now glaono at thu fnuKhiaim, firel men
^fMnQUHN, briefly ihuHu which haw least to do with juvtioe aod
bD-
pmaaaai
Speaking more itt kogth of tho jun«dictioDal powtm
(i) /'iKvi/ ImmtinitiM. Tho grantOM, tbinr man, and tlMir lands an* frocd frum cver^' imaginable funn of taJtalMn. *m* pprial and local' — if we may use soch modem tetma>-iri)ai all fioots and gddt, danegekbk nealgeJdiv bumgelde, fnnlgaldK woodgetda, felgelds, sculage, canieaga. hidage, tallage, aids 9m the king, aids for the nherifT aod his bailiffii, wardpeaDy, atW' peon)', hundredpt.'uny, tithingpeuny. burghhaJfp«nny. chevege, huadponny'; further, from ulJ iudiruct tajtee: — fnim paan^ pontage, peege, lastage. atallnge, rinage, weitaga, toll ; fartlnr from all 6nes and amereemanla impeeed upon the ebiiaa a»d the hondreds, in partionlar from the murder 6ml
(ii) Immnmtim from permmal »erwiee* Thoy an fteed from military aonrioe, 'from bosta and aammoOMe lo tfcfl bout.' from fcuit of court, from all shiTM, tiitluQ^ hihi wnp^'ntakiii ami hiindmls, from jury serriee. froai titUifs atkd fnuikplcdge, from the duty of repairing mt/lim, pefkk
tit«M fnuuUwM (ran timm tmawiiwttol.' Tbaa
obuiiMd hj euoqaMi dbrd«d mow griMiad fcr tin «ul of Wnwaal
HMrtioa tint ib« wmoti «w his ■■win.
« P. Q, W. IM.
• Hiealeii, i. H. f s.
■ That ibi diMtn of IIVB For tb* Twmf^n <Bat. Cert. |^ S) mnmnag. hnUn ih* minor Umi diw*. «UU of Uw ki^ aai aTia* hUMgt, mnetm, JstwieM, honi««UI, ■ewi^*. mmI nUi^p. thm «1m i^ ellfcsnMfiliniM. JMd. p. tft. sa4 tint In taHfili^taii. ^ la
r. III. § 5.] SeigiioHdl Jvt'isdiction.
575
itmda and bridges, from the duty of carrj'ing' the king's treasure and victuals, from carnage and sunirnagu and n»vige.
(iii) Immunities from forent law. These are u»uftlly the immnni- Bubject of special bargains and are not thrown about with ai(in«itsir. P*] lavish hand; but somctioieH the grantees succeed iu freeiiij^ themselves, their lands, men and dogs fi-oni some or all of the forest&l regulations, from the swainmotes, regards of the forest. amercementH of the forest, ' waste and assart'.' The immunities shade off into licences, such a» that of keeping eight bruchets and a pair of greyhounds and hunting the fox, the hare and the ^Hrild cat in the kings forest of Essex*.
^^ (iv) Fiitcal powers. The king, it will be remembered, from Ftacal time lo time grants to his tenants the power of taking an aid ''"**"■ or a acutnge from their tenants, and. though theiw imposts may ^■fae reganhid a.** feudal services, yet in practice they can not be PKollected mthout a roya! writ, and in course of time even thcorj* seems to require that the king should have granted his tenants 'their acutages* and given them leave to levy their aids*. Again, the king can make a permanent grant of the produce of a tax and of the right to collect it; thus John gave to the ^fbishop of Ely and his aucoessors the patronage over the abbot of ^^Thorney and ' the aid of sherifls and their bailitTs from all the men and tenements belonging to the said abbey,' so that the bishops became entitled to the due known as the shorilTs aid*. It is by no means improbable that a similar result was sometimes produced by mere words of immunity. When the king frees an abbey from scots and gelds, do the tenantn, free and villein, of the abbey get the benefit of this exemption purchased by their lorrl's money, or do they not now have to pay to the abbot what formerly they paid to the royal ofheera ? John had granteil that the monks of Ramsey and their do- les] mesnes and all the men of their demesnes should be free of all aida and demands of HherifTs and reeves and bailiffs* ; but at later time we tind the tenants of the abbey paj'ing ' sherifTs ' ; doubtless they pay it tf> the abbot, and thus a tax he- mes aomcthing very like a feudal service*. If we may infer
' S«e tb« durtcn of tho Templars and Boipttallara «nd Uw PeterboroDgli
r, Bot. Cttft. «t. ' Bot. C«rt. 4y. ■ S«e ftbore, pp. ^4, BflO.
« Bot. Cut. 104 (i.D. laiA).
• Cut. BuoB. li. fla ihj>. vMi),
* Out. Buu. ptuiim^ i.g. i. 4M: *ft Hnandam qood omnes tomw bjdala*
576 Jurisdiction and CommwuU Jffairs, [bk. n.
that tho same prucewi hnd been al work for K long Itmo puli. ooe of tbt! wiiu-ces of fuudalimu ut hem Uud hvtK iarifr (t) Jttritdiciumal Powtrt. A roynl charter of Out Uur^
fovm. teoDth ceutury very ofU*D, though bjr- nu niean* mlw»jn. dadarai that the donee aiid hiM heirs oro to hold the laiid with c«naia righu or puwitm which am d^DtcrilH-d by Kngliafa wunU. Of sach wok1« the commoDMi ut 'earn wim ol Mca at toU thewn'; often * iDfuigeaeth«f' it ftddfld; mare rarely gWMh^' ftlflo; whilr in moio cmm thero i> a k>ag lut*. leas usiud of the word* uo tho mum intdligibte ; prinuuily they denote certain crimes, ccruin puni»hinentJ^ certain modes of prooedure; in the cbartera they mean thai the to have juriiMlictiou over tbuiM* orimea, power to inflict pnnishmcQU, power to use theee modes of prooedure. Tkw he i>i to have houKebreakiug, bre«oh of a epeml peaee, way* laying, receipt o( oullaWH, the witos for blootblwd, far llghtia^ for flying from battle, for uegtecl of mililaty Borvios. for cation, for HiifTfring an eaoapu from prison, he t« to haw ordmil ujid the judicial combat, Thtf Iii»t ia eareM (o indi ju9t thuec crinu's which Cnul hvl declared lo bo newrrad pl^e of the crown, thooe jurindiotional hgfata whieb tho klAg baa over all men onlen he has seen fit lo grant them away 1^ ei- prD» words'. Under tho old law a grant aooompanied bgr tbaa* words would aoomingly have Btrip|>od thi- king of all 'jn»' diolion. except, it may be. a certam jiutice of last runrt And ibe Nonnaii C(iO()uo)il made no auddcn change; tbe crimmal law r«vealcd by Domoaday Book is 0/ the old type and tk* pleat of the omwn are juat those which are inelodrd in tb« liAa E»' that nru U'fore um. But during tho latter half of the twelfth century criminal Uw rapidly took a new shape ; Uw doctrinr if felony waa devclojiod. capital puniafamaDl aapfiMilad tb* M wiUai, and the «piN:ially njyol pimwaw of iui!it<miwl ood i»* 4go»t we» introduood. The reanll aecma to have bean Ibal Ifct powara ooolarrtd by tbeae old woida boeame aati^m^ th« very moaning of tbe terma bcoame diapalable aad
adwWS
ptwUm rtnminieom 01 tanaa tffcanraa daol ad aoHaa Ukaranua Mnbli . . Hago iUtW* . .
> lUWaod, XkoMO^ Book ud DajwU, 17(1 0.
* CUrtw ot Ikt BoiviullM (UM). Bot. CMt ft » gfittifari«« ■! blml«te wi Ssttawiiaai ftknita ■! bUvUa at •• flwamarfriUi «t ntirdn M Umdaia M orM ■! mm^'
' Oaa^ ti. la-U.
^.m. § 5.] Seignorial Jurisdiction.
577
■^
ho wiiihed for grantti of high jiiHtice were compelled to pur- chase teas dubious phrases. The most liberal grants were uot unfrcqucQtly qualltiod by reservations the meaning uf which w ampler an time went on. The king declares that he es outhiiig for himself ' except those things which belong ;o king's crown," 'except justice of life and member/ 'ex- cept murder, tre-asure trove, rape, and breach of the peace'.' Am the icing's peace extends itself, as all serious crimes become ouies and deserve punishment of life and member, the reeer- tion grows at the expense of the grant. Little m the thirteenth centurj- was to be got out of these ancient words beyond the pi-oceeds of a few minor ofleuces, scuffles, aOrays, fcimicatiou. Thus infangenetJief might give one power to hang b'b own thief if caught within one's own territory, and irf- fan^enethef the power to hang him wherever caught; but it seems essential that he should be caught ' handhaving or bock- bearing.' that is, with the stolen goods upon him and that he should be prosccute^l by the loser of the goods. The manorial gallows was a common object of the country, but under these restrictions it can not have been very useful^ U] Now these antique words occur in two different contexts. CoiitrMt
At 6rst sight we may even say that two formulas which seem immiuiitlM ^lo us oontiwlictory are used as though they were equivalent, |K)w«r». ^Bomotimos the charter sa^^s that the donoo is to hold his land with bloodwite, fightwito and so forth ; more often that he is to ^l)old it free iind (piit of hloodwite, fightwite and so forth ; yet ^ve can hardly doubt that the two phrases mean the same
> Roi. Cul. 8, 30, n, 82, sa.
* K oonipftriwui of tbo Krpotieiona Korof/ulorwui or gloMAriM of Anglo- Uw tamu wil] bit toonil in th» ll4)d Book of Um EzoluqiKr Ui. lOBS. Tt ifl oleftt that in llui thirlMnth ooatarf Uiera wu bat littls B^tMiDeDl u lo thfl meAning of tbeaa tenna, wbeace we lUMjf ilraw Lbe inferaooe that tberjr had bwatnff of nnull value. Thiui Kvary HI. gniuted ■ olwrter tv the Abbot of Colcbiitui far tli« ptirpoac of rxpUiiiiiut iliD word* frithaahtr, imfamffenelhe/ tod jtemtHtfrtmth contained ioachttitei of nidiurtl I.; »<,>« Bo(. Intrudoctuiti p. XKX>-ii. Tlivro nm much doubl tu to whal was mvanl by te and aa lu Ui*i exact limita of the riffht of utfannmrthej . In o»mm of voTHNfu the kiDf[*H advooatM atu food of pauzlioft their adwrsariei by asking tham to explain what they mean by tbaai ckld worda. Thua tbo I'hor of I>j«x ia aaked to construe mk lok tol tt them ; 'el Prior mohil dlcit ' ; F. Q. \V. 211. HtLlI on examinalion of tlie Chiirlor Itolla it will apiwar that Hies* worda wacv not thrown about qiut« at liapliauutl; thuN utfuHgnttU^ wm niuoh r«rvr (ban infangntelkrf. WtUiau Marahall utakea a Uboral ({rant of jitriodiation to tern Abbey, but expreaaly taMwrea ntfanggmthej to himaelf ; Monaafc, v. S6U.
37
^Cart h
mLngwi
578 JnrMiction and Cbfiwnuna/ Affain. [j
SiktwMl
Mfc«: mu
thing. To declATu that a lonl iit to bold hU Undu fnc bloodwjte bi to declare that ir blood be tbod bj hi* iei the king will not be entitled to the wite or fia«; IhU, howaw, •eenut regarded as implying as matter of eouivo that tha Iq>4 will get the wite, for mmM arv not to go ODpiDiiibed. TW pftseiple thus broaght out in one that ii of Mrric* to vm whi we ore dealing with a titno the chorten €4 which arv eoadMd in yet vaguer terms : — to free a lord's land from ivjnU jllli*- diction ta from the cxactioos which ore apfrarteaaei to tiM exeroi«e of royal jariadictioo is to create a aeignorial juriadicCwA. The kingH lawyers sometimes pivtest gainst this prioetpfe, protetft that a grant of immunity from frankpledge is doI equivalent to a grant of view of frankpledge ; but tbe kadi refuse to reooguize the diatinotion and may havs hiatocy apan their side'. j
But tho fiMir oomnMDWt words are tbo most iBianMii^ ^M In the thiriutinth century then* ia alrauly much doubt ■• I* their meaning, and among the ktwyen w* see • stnukg to make them mean as little as poanble. Tboa Call times the right to lAke toll, sometimes tho right to bs fivs of toll : bat often it i» merely the right to tallage ooe's viUaisik a right which eveiy lord of villeins enjoys wikhoot tks Msd of a royal grant'. Then teim is Uken tn mean the
t Thu eompw* io Hot Owl Um obuian Iw tkp Ttaaffc (^ tV Boatutftl (p. 1A|, ChrU Ofaanh, Ouiiwkay (p. tA^, M Blissjii (^ •oav^r grUkbrtet «u„ wiih tboM far VmnAmm tp. n)f FaaanssaJ ^ 1% Honrkh (fk 81). vhleb dwUf* IkaltbalMidUtola tm ti lh«» lU^a Bamttiam vb find wi iiilwiiiilliti tisiiiU i tf In thsduUHhra^ivna^l^ tp. 18)1 Um Uod la to b« twld ttm oT frmrte**. MWAr<W •««., a^ Ite ^ate an to baiv Jhmmmfh* rtt. Tha pofal to vhidi aUaaltao to ^wa ■ *« Uloatnlad bj tha dnrter (or Uh bbbop of BaltekiKj <p. M|: ilia la^ to to kt •taotpt bxmt khtbtite eu. and ttaafcpUJSP ; bot aa tMi taUo** Ik* *bsl ao Uiai Iha fiaw of bankpkdiR ba m»^ la tba UAapTa otm ■■>BiiL* TbaoalaralnaaUflrdadariivilwIikftafrakadlatafeMaf I fla^p IIM14 W to g4va Um bUbop iba ri|^ of IwUtac te *«» vitei iaiiihiMii of anjr Foyal DffldaL Tha Mihnf «l Wla*«aff te aak^ If varraat ba eUtoa riaw of (nahtla4iaj ba Uadaof (lanbpladsa) lb* htef'a i^iwala view utd aiBvaa )odgBWBl : jwlgnaat ii i— iij i F. (|. W. «■. Tba ^m point la Ukafl agalwt tba Beipltollm. IbO, fir m4 ■§§«— ite faiv rf OavantfT. Ibid. Ml: bat in oaab oaaa jnlfMat ta
' Li«. Z»w. Omt SS: Tal, ^aad aaa % !■■■! MUM anandl a ffwiiali ia lana mb*: P. Q. «. f»i 'FW. dnar*j r.Q.W. Ul: *JW...,|i
6.] Seig^wrial Jwisdictioii.
579
offspring, the ' sequela ' of one's villeins' ; but this we may be sure is a inistiike. Apparently il ought Iti mean the ^figbt to hold a court into which outsidera may be vouched warraatore, or, to use a more technical term, the right to tforce a ' foreign voucher.' The word sac (or, as we had better aU it, sake), the Anglo-Saxoo sticu, the modern Ocruian Sache, leans thing, cause, matter; the gJosRarists of the thirteenth century have not forgAtten this and refer to the English phrase ' for which sake ' ; in legal language it meaiifl a canne, a matter, an action, or as the (jermans say Jiechtwaclie: a grant then of sake should be a grant — by a very general term — of juris- diction'. Most important of all i« soke or soken. which is used as a very largti word to denote justiciary rights and the area Kwithin which they are exercised.
^k The remote historj' of these t«nns has been discussed else-^*"**
^vhere'. Here we have only to observe that in the thirteenth c»iit. riiL
century the words mice and soke are regarded as describing
jurisdiction, but jurisdiction of a kind that every lord has
although he has no such words in his charter and although he
AT] has no chart^^r from the king. Like the 'gonural words'
common in conveyances of a later date ('together with all
easements, commons' and the like) they only serve to describe
rights which the donee would have though no such words were
employed ; they give no franchise, thoy merely point to the
feudal or manorial juristlictiou which every one may have if
^-Mo holds a manor, or which every one may have if he has
^ptenants*. On the whole the prevailing doctrine seems to have
been that mke and gokf did nothing, that toll and tlteam did
nothing, that in/ange7ietJui/ aud uifa$igeiiethe/ merely gave the
right to hang ' hand-having ' thieves, thievea taken ' with the
mainour' {cum manuojjere), while the other old words could
f > P. Q. W. 976: 'Tkern^ Ktttt pro(«a]r[ae von bBiiiM't FloU, t 02: • rkrai •eqaiaUaUim amerciAnunikmiu wqualne propriornm tttomm.'
* Boreileii, ii. SIS; 'Saelike, ioMrpivUtur iarindiolio, id ml, enri et jostiae.' lb. Doiv. Lib. XfB. IM. vii. 6. f. GSb: '<|uu Mkfl spglfM eoahMOD ffdUoe, (lieitar for vryeh taiu par qaeb eneheMOD.* At ManebMt^r we flail m
kjmoat taUed tak/t {mIm-Im) : * debit tl Bildii «l SMUm kI (niriftm ' i BoU lor 'FaMb. U lleo. lU. (No. 140) m. 7.
' Mailland. Dotnead*^ Book and Bfyood. pp. 60, 258.
* P. Q. W. Ub: 'nak, ftok, toll ct tlioaia quae qaidvm verba lubaal mfatri «d tnutiuu] b*ruti[ia] et dod ad vUutu fnuuupleftti.' Ketlwaj'i B«porU, IMb: * ohwTiTin Mignbr de oomnisn droit Avera titU cboMa.'
37—2
580 Jurisdiction and Cotnmufkal Affairt, [bk. II
not be trusted to do much, though they might ncnre to defia* and pomibly to iucroaMe the arduuxy poweni of a feodal ooartV
l*bG Herious franchisee of • jitr»dictionftl kind wen cUimed under other words, or still more fr^oently were cUiined bf prMcription. A» the most Mrioas, though the ImhI eaalted, we muttt reckon ' view uf lTmnkple<%e uid aU that In new id friuikplo<lgi« doth belong' — as the most seriooa. becMue it «•» oxtri'tiicly romtuuiL OccaHtuoaUy wp tind a clear gtmut of* riev of frankpledge/ occasionally a grant of immunity frvm frattk- pledge which may or may not have amounted to thv ^aam thingV and perhaps a grant of frithaoktn, — the wotd is DiA very cununon — wuald bai'e the some oprraiion'. Far mm oommouly a lord prcacribed for the ' vicyt.' and prowribed Cir it sncdvotfully. Thv right thus namMl conipriseii oot racftl, the right to oxecuto the Uw uf frankplodfie and t«kc profits tbenoe aristog, but abm the right to bold twioe a a court coordinate with th<* shmfTs turn, a poliee oooith court for the presentment of <iflrt'nec9> and the pssiahmewl ofienoes that fell short of f<'lony. Towardt the end of lb* thirteenth cunlury thti word luti {Utba.) — wfaicb seems la hafe spread outwanh* fnnii iho EuAt Anglian mMintios — was b^ coming a common name fur such a ooort, but Ui tbo bsl mnu Jraridpteffii remained the most fotmai and corrucC U titlea The lord who hod thin fnuichiM claimed bo a body of jmtim — often tht-y were the chief ptodgw or of the tithings — and to put bvfor« tbem Ukoso same 'Aitkdoi the view' (oapitvia vims) which th« nbariff employed in ha 'tura' The minor oSenooa were poiiiebad m Uw i^ by amercements which went to swell tbe Umfs
arrucC uf i, or bat^H
I TIm oat th^ eoaU b« nsd* of ndia varU m iUtdmiu biJtova hj « bi F. Q. W. Ml-S. TlM Ksrl of Uooota sUlati lo hoU yl* <rf *D wwtaiHM wiUiiD kU fa«.aiid to puiuMJ tUbm ■» tiw —it ■! a ^lefo. ptov14«d Uultbswori Vm4mttr b» ool MBMsHrii If h b ibm hi* SMti dow not nwUb witli Um «•■■ %mf ■«••, hA ta«w m eevatjr «ewL Th«*a|iaD bt it uU whttbm Iw $kam» to fmrnkk » mm tor vosnda or Mooddwrf. Y«, ha anmos. §— ridrf tkal ih* fAuabf BO mdUob «f MmApU#. Tbb tnm I4»m4 L*! ^.
' Bm »l^>«« p. STft. An Mdjr balaaM i* kmui to amy U."* iOm Rurta7.MaBSM.Ui. 4M: 'Puililii f*M«ipla •* ifHOair liii I ■• ffUM ptagiiM iirior *1 hoadaa «i tUbi ■■—■»!*'■ im^Maal aiM to cnrto 8. Msilst ■! ma.'
* F. Q. W. «U (AbbM if OnlilitolM). nfl (Aktat < Gut. lolnid. p. uxtU.
M
CH. m. § 5.] Sfignoinal Juriftfliction,
581
^
probftbty the pecuuiary pro6l was in the eyes of the lords a small matter when compared with the power that was thus secnred to them. Twice a year the villagers, boiul and free, had to report themselves and tidl tales one of another, while do tate went outside the manor to the ears of jealous neighbours or rapacious t^fficialH. Probably the tenants also were gainers by the franchise ; they could maziage their own affairs without the interference of ' foreigners^'
The king's advocates at times protested that only theTbavUt t-enant of a whole vill oould enjoy this regality ; the view, they r|«w.
^P say, mui>t be a view for a vilt, a view for a manor will not do, nor may a lord collect iu his tithings tenants from divers vills' ; again, he ought to have at least twelve whole tithings, twelve ^^ chief pledges, so that none may be punished without the oath ^m of twelve*. These contentions were sometimes successfully ^^ urged, ajid the theory which connects the view <>f frankpledge ^^ with the urganization of a perfect township {villa integra) may ^B. be a cluo to past history' ; but as a matter of fact the franchise ^^ had been subiufeudated and was sometimes exercised over collections of men resident on various picH^es of land geo- graphically detached from each other and connected only by the fact that they were all holden of the same lord. Thus .MS] the Wew is sometimes divided between imme<liate lord ami overlord : John Engainc holds manors at Gidding and Diliingtou
Pof the Abbot of Ramsey ; when the day for the view comes, the Abbot's bailifT appears, hands to John's steward the articles of the view, and takes two shillings out uf the proceeds of the day. while John keeps the rcst^ In Rutland the Prior of the Hospitallers holds the whole vill of Whitwell, he has twelve ^^ tenants in Dreystoke, one in Guuthorpe, two iu Mortiostoke, ^■^Do in Bamardshiil and twelve in Uppingham, for these he ' holds a view twice a year at Whitwell and Uppingham*; tenants from several Bedfonishirc villages go to the view held by Humphrey de Bohuu at Kimbolton iu Huntingdonshire'.
The lord who has ihe view of frankpledge usually has also Tbrutla \* the assize of beer,' that is, the power of enforcing the general ami boar.
> Rot. Cart. SO ; John gntnts to ihc nionkii of Nonrieli '(lood mua (nuioi- |ipl«gU fiat ia earU eonun oattm Bcrvtente oostro tine ftdmixtioQ* hominoia aH^i bocu^ii.'
• P. Q. W. 85, 89. W). IJl, SOS--t-<. * P. Q. W. 8, 6. 7, 2WI.
* P. Q. W. 297. » P. Q. W. 678. • P. Q. W. 11.
ordiunoos which from limci lo time fix the pnct» ftl beer ma/ be told ; Mucniniiue», but luuch mora nrotjr, be th« Ksniv of bread. Out of be«r tho lortb made aom Bidrmbli' prtifiu It U coinniuD to finil iiuu>orU] junrn pns wnttDg Aft n niattvr of (xiarM thul all the bri'wcr*, or nitJMr alcwivcM, of the villago bavv ' brewed iignin'tt the iuniw ' ; wb«n- upon all of thum am ami^roed; and it in cvnitnun lu find the king's advocatM ctim plain ini^ that the lorda inflict peeuBiwy amercements upon thi<se hjiidenrd oflieodeni wba Ottgbt bjr righU to t<uff(.T in ihrir penotw by mcam of pilUtry aad UaB* brcll. Pillfiry und lutiibrull ans the iKiCvanl and riaibtir aigm of thia jurifldiclion. jui>l a* a gallowa is Ibd BMOilMlBtiaD af 'iDfangeDetbot'; tho lord whu dtiea not keep ^npor iMlm- meiiUi of juHtiof , ptt>pt*r iudinatia, ia liable lo luao hta frmntAiaa. Kx|itT&« f^miittf of the aaaijoj of boor are ODcammon; on tk* other baiid tnatiy Ionia chum it by pracripiion. while the lurdii of NurlhuuilMsrlood, Camberlood, Yorkahire and Lineoln* shire Afiiert that they are not even boond lo piuMiha $m it, nince it is iheirv by the common ctulom of tbair coostiv*. ^- We havo tfai)nifuru romt* u|)oo the lino whicA tfividaa Ihw evi^oriol powcra which are deemed nrp^iliea (tmd thi«e wkidi have their justification in the men nktioa hutweau kwd aad teuuiU, and we tind it a t-agne. flnGtOAliiif Una Mttled is cases by local customs.
llonj were the lords who hold tiw via* nf frmnk] (tho htt of later days) and the anise of beer ; oompniktiTdy few were the lonb who had more exalted jiiriadictianal pQw««, Still of such powera we find a gradnally aadending aaile;. Afti the lop ore tho two palatinatett, the cotuity of Choter. ikm bishopric of Durham ; but below them stood kifdakjpe wluek art' almost palatine and which lean; thair mack tm xhm owp of Kngland lor many oentarsea Wb«i in 1888 Ihe day hm oome for remodelling the government of oar dunss. llw of St Edmund, of St Ktheldreda of Ely. of Si 1 NedohMDateod ore atiU reepDdcd*. Tkmt aunfaenhipa on the Walah bonlar are the ■tnneesL Sometimes the loid exereiaed the highest jastiee mJtj
1 P. Q. w. u5-i. isa. i»i-»-i-<, no, sm. 4It,
> Load niiiHBiBiiil Ail IMS, MB. U (whkii iijiwli As UbMiT of B« ftfannDl). IW PMBvbocoa^ an HiU 'MlnlakCnUvB
«r «r. *Ba^
GH. lu. § 5.] Seignoricd Jurisdiction, 583
within a small territory immediately Boirounding his oastle or monastery, a lengata, banlieu, Umy. Among theee powers we may notice the following:
(a) Amerciamenta Aomtnum. The lord has a right to the amercements of his men, even though those amercemeotB are inBicted in the king's court. The amercements are paid into the royal exchequer, and then the lord petitions that they may be paid out to him.
(6) GataUa felonum et fugitivorum. The lord, though he does not try felons, unless they be bandbaving thieves, gets the forfeited chattels of condemned felons and ontlaws which ordinarily would belong to the king. With this is sometimes coupled the right to hang felons sentenced by the king's justices. .671] (c) Reiumus^ brmnwn. This is a highly valued right. Within the lord's territory the 'return of writs' belongs to him : that is to say, if the sheriff receives a writ (' original ' or 'judicial') bidding him summon, attach or distrain one resident within that territory, or seize lands or goods, he most deliver that writ to the bailiff of the liberty who will execute the precept. Only in case the lord or his bailiff has been guilty of default and a second writ comes to the sheriff oon- taining the clause ' quod non omittas propter aZtgwim liber- Uitem' will he be justified in entering the privileged precinct.
{d) Some lords have, and prescribe to have, coroners of their own — a remarkable fact, since to the best of our know- h.'dge ci)roners were first instituted on this side of the limit of legal memory.
(e) Some lords compel the king's justices in eyre to come and sit within their precincts and even to occupy a secondary position. They come there — such at least is the lord's theory— merely to see that the lord's court makes no default in justice ; but the business of the court, even though it consist of pleas of the crown, is conducted by the lord himself, his bailiffs or justices. Sometimes the lord claims that for the time being he himself is iustitiarius domini Regis*.
{/) Some lords have a civil jurisdiction within their territories which excludes the jurisdiction of the king's courts.
' In old dociimentH relumuH is certainly* commoner than returna. - Select Pleas in Manorial Courts, pp. xxt-zxtI ; but it was the Abbot of By land, not of KirkBtall, who required the king's jastices to sit st Clifton.
584 JuriadioUon and Communal Affairs, [bk.
ir an actiua coucurning anything within tho prodooi U ^xHVb boforc thu Bench at WeMauait«r, Bh« hied Mnib a buliff li» 'cnive cognixiuitiv' of the caoM and he is allowed it tptiii cuTHim tuam tt hahtt).
Soini' of the hi/^ht^t powora wur« daimnl bv imvcriptiua ; \hy Tor example, the Archbiahop of York dcclanKi that h» and hi* SIi*' predeceaaora had wieliled thum fmiu time inmiMnana) ; not 'w Hf'mp of {Mirrhment did he dvijjn lo pnxliicc. H« even cUudmI Ui ouin utoD(>)' by preacriptiou'. Aiid we may ataC* aa * feoseal rule that just ibe rer}' higboHt juriadictional powers wen aeidom claimed by any other title. Occaaiooally • hithop an abbot would rely on the vague, laige wocdb of mst- \ Saxon land'book. Uut this %raa a AUae move; tih* lawyers were not astute palaeographcim or diplooiaUita^ any charter oouehed in tonni auflScienUy louae to paaa far SST moment ea briot^jfing to the age boCare the Coaqaeai eonM bu met by the doctrine that the kiug waa not to be deprived of hiti rights by ' obscune and geoanil worda.' Fur niarketa and faini, their chases and warrena, for ei hominum and oalalia fUanttm the lord* have rharteie; but whfD they hold all the pleas uf thu ciuwo, whi:« lh«y appoint justicea and oorooers, when they coin oMMiey, when they thi' kii^s jnatioM as distingoiahed riiitoie to be fliited with a Huat upon thu bench/ thtou thmy prwmrihe ' thsy and all ihoir pnHlecdssun have done Uie like ; w they my aal so the country nayn. j^ But apart from all fmuchiaea, a lord has JanMliolioo
yf^^* bis tenanta. Tbia be doea nut claim by ruyal gmnl, nor JiiiiMi be praaoribe for it; in ita exerciae we can nut eall hioi tW king's delegate. English law of the thirteenth ot^tory to have admitted the bruad nilu that evrry lord with enough lo Ibnn a court may, m Iat a» the king is hold a ooort of and for hia benanta. We say * so tsr ^ |be kiug is cottoemed.' Whether a lord enfeofling a tMsant bad Is •tipulate fur aoit of court if he wt»hnj bu ohli^ lb* to serve as a doomsroan ia a diOermt qoeatMO. Only lb« day wan that ijuestion brought beforv the luyal Some eoem to have held that an axpiesa alafnlataott via aaiy if roon' suit was to be enotad Uum fveh as to enable the lord to exercise any regal jurisdiction wiib vfck^
CH. III. § 5.] Seignorial Jarvtdictwn.
585
tlie had boon eutrusted. Others were of a different opinioD. The matter was settled by the Statute of Marlborough (1267)> : — the lord who (>xact8 suit to hw feudal court must rely upou express stipulation or upon a somewhat brief prescriptive tide* This, hoivever, is a matter of compamtively little im- portance ; the gw-nter matter is that mere tenure gives to every lord, who has the means of exercising it, a juriMliction ovei- his tenant ; his tenant is his justiciable.
This juriwiiction, if the tenant is a freeholder, is not of RTh«IniU'J high order, nor is it very lucrative. It la but a civil juns- uanaDjrk t«78j diction, and it is hampered and controlled by royal justice. ^J^ What is more, the feudal court \» generally a inanoiial court, a court for a small district. Even though we can not at the moment crplain the full import of this proposition, we may dwell on it for a moment. We shall beg no question by saying that the manor iisually is but a small space of ground : small, that is, when we compare it with the total amount of land which a great noble will bold ' either in demesne or in »er\'ice.' A rich religious house may have twenty manors in demesne; a lay noble will not have so many in demesne, but be will have some few in demesne and many more in ice ; his honour will consist of a large number of manors tiered about in divers parts of England ; of some few he will be the immediate lord, while others will be holden of him by his knightK. Now the simple principle of feudal justice that we have lately stated would authorize such a lord to hold a court for his honour, to hold one court for all his im- mediate tenants; or, again, if his tenants were widely scattered, he might hold several honorial courts, one, let us say. for his Kentish tetiantj«, another in Gloucestershire, another in York- [kbire. And thus between the actual occupant of a tenement and the king there might stand a whole hierarchy of courts. We have neen above huw bt-tween Roger <if St German who held land in Huntingdonshire and the king there were no leas than seven mesne lords*. The principle which is now before tu would ID sach a case permit the existence of seven feudal oourts. That such was the law we can hardly donbt; no narrower principle will explain the facta. Very often the lord
* Stat. Mhrll*. c. II.
* Select flcM in MKnoriftrConrU, p. xlriii. 1 Bee above, p. 088.
586 Jurisdiction, and Commmtai Affairs [mc
tfettaiaf
of a manor who had a court of bu own wu binwelf bonail do suit at hu lord'tt court. The petition which Uu pruwuiUxi at the Oxford parliomvot of 1S58 aamatnm tlia» ■eldom three feudal courts tower on« above the other. Cim»- plaint is made that tha Abbot of Ptterborougfa doe* Dot aliow hi» frtHthuldent to bold courta for their Utoanta, wbtavae lk» i» fauictiuDcd hy law and cutttom thnwifbout the rcfttm. TIm Prior of Dunstablo waa compellod to concede that hie might bold cuurtA for thoir tenanta. Fiirtberroore, il have beeo a coiumou practice for a wealthy abbey U> fc«ep • I court, known aa a halimoot, oo each of ita maaon, while la > ii addition to thene roanorial coarta it kept a oentnU oMUt- a libeiM curia for all ita greator freehold teoaata. And «• mmy now and again meet with cnurtH which aro dutitteiJy caUed courtd of honnum. Thu nilr thrn was, nut inrri'ly that the lord of a uiauor iiiay hold n court for the manor, but that a lord may hold a court for hie leoantb ^
Nerertholcm it must be allowed that in the thiftwMlh oentur)- full advantaf^e wae not taken of the prindpls. 8ab- iofeudatiim huil ^ono br indued and, a« laid mbnvo, the juriwliclion over fm'^holdcn^ wait no lonp^r vrry raloaMe; brought the lord little money and did not add rnnefa l» power. The feudal courta that wo aeo in active vurk are the niun^ part inanuriat cotirte, and tht* af&in with which thvy an oottcetned are mainly the affikini of tenanla ia ▼illeiinfla. ercn the affium of rilleina. A« a maUer of bet^ feodal j diction «ceme intimately oonneetvd with the entitiea known maoon and theee maaora again eeeni to be iatinuMaly nected with towmihipa. Still theee linkii vxtet ratb«r in world of fact than in the world of biw ; the ieKal pnitapt* * the Himplo principle that tenure implie* janadietiao. TV Abbot c^ Ramsey may bring to hi* cuuri aft BronjtilM hi> fre^old tcnauu from neven eountie» ; the burgeM of Dnoaiakb may hold a court for hii tenanta'.
Of theee feadal. — they will in geneiml be we may oowgivT* a brief aoeuant ; ftret we eriU epeak oompekaaoe and then of their oooatilutiuL
> A« to all tbU natiw. am SriMl flw la Uaaartel OMrto. la kgooA iaataao* of Um afeBadaamMrt o# • bPttDtid WMttbeHMui Wu LMkdbM, i. Ut 'AUtnaaJe aaaMi aMOM Ift^ omi •DriuB WinehieoiBb* da ttftoa MfltaBate la tna. Bt AMm J OMai qood UommA aaalam fQaai la laaawfli.'
lab-
il
CH. iiL § 5.] SeignoricU Jurisdiction. 587
I. OivU Litigation, (i) Personal ActioM. They entertain personAl actions, at least when the amount at stake is leas than forty shillii^ ; in particular, actions of debt, detinue, tjreepass and covenant. This jurisdiction seems to be considered as arising out of the relationship between man and lord. On the other hand, the action of replevin {de vetito namU) is royal and few lords claim to entertain it. Perhaps in theory the defendant ought to be an immediate tenant of the lord, but it is very likely that a lord often compelled any resident on rs] his land to answer in his court, at all events when ^ere was ' between them no lower lord with a court of his own. That the plaintiff also should be the lord's man would not be neces- sary. This jurisdiction was a useful, thriving reality. We may well find a manorial court which generally has some ten to twenty personal actions depending before it, and, as we shall see later on, these humble courts seem to have recognised certain causes of action for which the king's courts offered no remedy; they gave damages in cases of slander and libel and possibly they enforced some agreements to which the king's courts would have paid no heed.
(ii) Adiona for the recovery of freehold land. Since the days of Henry II. the nile had been that no one could be compt'llod to answer for his freehold without the king's writ*. On the other hand stood the rule, sanctioned by Magna Carta, that for a true proprietary action for land admittedly held of a certain lord, that lord's court was the proper tribunal, and, though the king's judges and chancellors gradually impaired the furco of this rule by the invention of new actions which were in effect proprietary, though they may have been nomi- nally possessory, still throughout the thirteenth century and even in the fourteenth we hear of a good many actions begun in the foudal courts by ' writ of right.' Very seldom however, unless our books mislead us, were such actions finally disposed of in those courts; to get them removed first into the county courts and then into the king's court was easy, and if the tenant (the passive party in the litigation) chose to reject the duel and put himself upon the grand assize, the competence of the lord's court was at an end. Henghani tells us that in his day the lords rarely asserted this jurisdiction over
' See above, p. 147.
588 JitrisdietMn <md Oommwusl Affairs, [bk. n.
frccholc) liuiH, Tor they ooiiM get little or no profit oot of il».
(iii) AeHoM relating to e*uUmar$ or MUiM MMSMMft to^ In At I niftilon which oonccrDtd a mtar^y MrtoOMry tilt* to Intx] th<^ lord's cout-t wm the only competent triboiwl. for of aucb a titl« the kingV jadgeH would know nothing. No nml writ was oecewary. Still we aee tho lorO* ooart doing tlric* jiurtioe in due form of law; then i« no fcmnleM arbitral theru arc funnal plejulin^ whirh am <itnctly oonstnuKL the cud of thu cvutun' pUiiid^'n* iu moiiurial ooorta Due of phnses which mroin to have their origin at W but all along they have been iwag techoical phnuMa, tranof tho descent of the ciuilomaTy Uneroent frum heir to h«ir, alleging 'iicinn as of right,' alleging the taking of *««pleca' adding howeivr at even- tuni ' according l<i tlie oatlbam of tbe manor'.' The justice which the cnatomary toBaota got wm strict justice; it was not 'equity' on the oae Iwid, bot am the other it wai not 'the will of the lord'
(iv) litiffatWH bttwMtt tord and mam. That ike lofd eoaU eoe his tenant seems plain ; the entricM on a ooart roQ lH]|clf consist of such on show how the lijrd'n bailiff made aationfl against the tenanta and how the lord nooTand
' Bm B«i|faBiB Ihcu. cmp- >• 8mwim «••• Boob. «.f ■ pL 9*. la Iha «mrt ol tba E«tl of Wbiwiim carried m Atf w Um Am Mvot of iW 4iri whan R ounaard wm> nuda ; pi. 40, praeMdiaip !■ Um mmux af SimCTj imfnlulj moovad toto thf ecnm^ «MUit fi. M% ocmrl of lb* Kvl of Wu«bs« raoHnvd loki Of county fvott -. fL IfH^ ' umI T«p«ftt«d Itticaiivo in tha oonrl of Uw Df . of Bath ; la «■• tml^mm te llnl Itlom of the duel were Btnidt : pi. IMT, fiiiiitlini la tha anvl «r da OmwUUo of Cheater alayad by a Coffid writ. TlMn at* T. A. Ma. n„ f- SB lZ;r<HO, fi'J4 (fffoll), filS (fax JuftrntmlU sad 9M (!>«««); ia ikte Utf «^ a Jodffiwil waa gtvaa in tfaa Uui't wnU Thaafft iIm penaw «l rammat & «■
d( rifbt ArvH tba fevdal ooart vw waiy ■plliliid. U tonlvvd m
thai tlw lotd had owU lUfanlt in Ja«i«i^Md to tlik tki i
oath. A Hittalrvm Bnnam In tho CweWidNa Uhnrf. Mm. L n.
the tadum lhil»-Tha dHundftnt ahaU oema with tlw laiKf ^ Ika
tha lord** eotut aod Mns in hia hand hta wtM aord a Wok
mwpala] and aliall aland on tho ihmhald of tar oowt wid iwaar «a Iha taa
that ha mU |4a^ no furtbot In thai oottrt hy tho wrtt vkMli ha hal^ la M
hand, aisot Iho ooart baa tallod to do bin jaUiaa i aa4 ihni ha ihaS haaa •
vril to Oh toOUb ud tba alMrifl tfaling thai to tw sh|a^ ito aa«t arf
pnmd ika AafanIL
> Boo Tlw Coart Barao (IMdaa Nea I p. 1 19 vtooo tto toM ol ■ «ill a< «ar ad imalaaai f «i profl^ritf ia atopNl.
• mm PlMo ia Usaonal Courta. h>. IT. U, M, ISS, I7L
-*■■ *"
[. ni. § 5.] Seiffnorial Jurisdiction.
589
877] tc
.01
w
I from them; the t«imnLs are charged with tr(»pns»e8, ur with
breaches of the manorial custom'. It is lato iii the day before
we hear any suggestion that such a course of procedure is
inequitable since it makes the lord a judge in his own cause, and
jven then it is admitted to be 'the coiumon cuunte throughout
jthe land^' There is much to show that in the past one of the
tmain n«c« of a feudal court had been that it enabled th(? loni
to compel his tenants bo perform their services; thi:^ will appear
from what has been said about the law of distreas'. As t« the
obJL-ctiou that the lord in both judge and party, that fails, for
bbe lord ih not juiigo; the defendant hari the judgment of his
peers. On the other hand, the lord can not be sued in his court ;
I thiit is true of him as it is true of the king. The proper feudal
' ooniBe for one who claims to hold land of X but can not get
that land is to demand justice from X, and if thin demand
fails, to go to the court of X'& lord. A lord distrained to
I answer in his own court is the most startling anomaly of the ancient demesne. II. Presentments. Even though the lord does not aspire fee, or on this particular day is nut exercising, the franchise of view of frankpledge, he ofleu makes use of a procedure which involves presentment. Jurors arc sworn in, sonietimi-t* twelve, but often less than twelve, to present offences. Perhaps in theory they have no business to present any oflfcncos which touch the king's peace, such as assaults, since in ailjudicating ^^on these the lord would be usurping a franchise, and ought to ^■confine tbenuelvee to breaches of the manorial custom and ^^invosious of the lord's proprietary rights. But it is difficult to maintain or even to draw the line, difficult to prevent a lord
I from making his feudal court a police court. Especially is this So when the tenants are unfree ; if the loni amerces a serf for drawing his knife, pilfering his neighbours goods, using bod words, he is after all but demanding money which alrtwuly is his own: even if he puts the man in the stocks or turns him out of the vill, this, if it can be regarded as an act of justice, can also be regarded as an act of ownership. And so we tind that the presentments are miscellaneous: — A has assaulted R\
1 Sm Uu preflsdrats in The Court Bknxi.
■ T. B. 44 Edw. IJL t 19 (Trio. pi. 14). Tha Mma sngsafttioD it iii«dc in y. B. 31-11 Edw. I. p. U7. Tbeuuweria*ThBaoanit]Ddg«.' ' Bm AbOYo, p. S53.
590 Jurisdiction and Communal Affain, [a&. n.
C hw nbuiMxl li; A* w a woUling wife ; F^t (lAught«r hitf hmm guiUv of fumicati(>o «iid «> ht* owe* « lejrrwit«; (7, • freriwMT, i« detid uu) his son owe* ft relief ; H i» tho loH't waliipMi tuA has left tbe nunor; J caxae Ute to the boon wiirk*: K kee^ bis dung-heftp before his <loor ; L has tished in the toncf • pood . J/ sella war beer ; A' putA more b^AnU no the putniv t^ft* tbfl by-law allows him ; O rescued hiA impounded bwaU ; aad M> fbrth. Am a rule when th«rv is uu iiucMiou toaching ft«»- hold the aocuaod aaAms to gel lillle chaucv uf dunging iImb ^ charges, but is at onoc amerced ; aixpenn^ and tluvcpcnajr ainercoments are common.
IlL Qovermnental J'vwer and By4aw, Within nanuw limits % feudal court might be, not mcrvly a oonrt of JDstiee. but also an asMrobly capable uf discojHtng and arranguig ikt affura of the tonurial group. To sach on awembly (b* Uai wooM in old timiM appeal whnn he wantod an aid hvm bis military tvoauts', or when ho wauUd them, or same of thtm on behalf of aII, to go to the war'. But amung the knig^ti of aa honour there waa little commanaliMn; each indiridual had hii rights and duties ; the one could not bo irapaix«l, Um othor could not be oggravotod by any rsoolatioa of his fmn. As to manorial by-laws we most speak heraoAar. Ov«r «afew men. even over the free men who hold uofree laads. sach hf' laws, being made with the lord's approval, would have graal power; a broach of them might be pnniidird by a faritwiwie of the tenement: a recalcitrant bondman might br set m ths stocks ; but to enforce by'lAw<i againiit a freeboldiog froa ■■• waa a rooru difficult matter.
I\. A ppellau Jurisdiction. Wh«B a gnoi lord h«l aiMQf halimuots and one libwra curitL, difficult esses which arose im the former were sometinMS reaarwd far tb« lall«r. Bnl tht magnates had aimed at mors than thk They had wishod !■. an appellate jurMlictiun, or r»tber a 'jariadictioo in over tho court* of their Icnant*. Had the ftsal priocipii feudal justice been allowt'd fn« play, ttwir demand mast lav* been ooticeiled. But it fiuleiL If the ctmrt of the lower k>4 made defiuih in juxticv, the cose eonld bo umiMod al into the county court And theoos Co tb* king's ooBit, and
• 8m above ^ MO.
• Mm PlMi In Maoortal CMrta, i. 4». M; lUL tm. Ovm. Mai-
CH. III. 1 5,j Seignonal Jurisdiction. 591
but the kiogs court could hear a charge of false judgmeut^ After a severe struggle these rules were eBtablished ; to their operation it ia due that in England we hear little of exalted Feudal courte, courts of barouies and honoui°s.
V. Conveyancing Bimiie^s. In later ages the work of a manorial court will chiefly consist in witnessing tranafere of copyhold laud; the coui*t roll will become a register of title for the copyholders, At the accession of Edward I., however, W] the practice t>f keeping court loUs was stilt new, and. though from time to time we may hear how a tenant in villeinage 'puts himself upon the roll' by way of proving hia title*, still on such rolls as we have seen entries of ' surrenders and ad* mittances ' are ao few and so irregular that we can not believe that they were of much importance. However, such power of alienation aa the custom of the manor gives to the tenant in villeinage ia often exQrciited iu court. He can only alienate his tenemetit by surrendering it to the lord, aiid, if ihia is done in open court, the lord'w acceptance of a new ttmant will be witnessed by the naeu of the court, alid their teatimony will be useful at a future time. We have no reanon, however, for saying that only in court could a lonl give villein land tu a uew tenant or concede to a dead tenant's heir the tenemiiut of his ancestor, for, according to the liiw of the king 'a court, the Und was the lord's to do what he liked with. From an ancient dL^mesno manor we may already hear how a tenant who was Ux} ill to come to court made a surrender to the bailiff out of court to the intent that the bailiff might make the sun-ender in court'. With the transfer of freehold laud the court had in general little to do; the tenants suhiufoudated their tenements without going to the court, and in the thir- teenth century they already throat new immediate tenants upon ihcir lord without asking tor his cooperation*; still a careful lord would oblige the nmnorial jury to present deaths and ih2scents which tijok place among hia freeholders, in ord^r that he might secure his reliefs, ward^hipB and marriages. As homage had to be done to the lord in his proper person, it
' Soleet I'ltiia in Mftimnal Courta, Iiitrodtjotion, p. Iviij. See alno Bot- Cut. Hapifl, i. 357.
' Th* Court Huron, pp- 12] . 13».
* S«l(;ci rieuH in Maaorial Courts, i. IS6 (iuD. 1301),
* Bee abavK, p. 343.
592 Jufudiction and Communed Affain, [uc n.
CooaUtu-
Ch>
waa more naually doDe tn ha hoaw than in iha nuuMrinl oumt.
And now as to the otuutitution of the court. Tbtce no reaaon why thu lord tthould not pmiido over it in and oocaMionally nn abbot or prior would do thi«*. oelUrer of ilu* abbey, himself a itiouk, would hoM Uie but geiiamlly they were held by th4* \oni't itewmitl abboUi and other lord* had allowed the atAwmcdahip to hcnHlitaf}' ; tiiey had onlMffsd knigfata who wetv to bold lands by the aerjeanty of stewardships But bufore iho end the thirttHMiLh century the work was falling into the of lawyent. Very great lawyent did not icom it. A IttSls later, in 1335. we find the prior of Christ <?hurch <»fl!mng the office of steward to ivi \**aA a person than Sir John Sb* who had been fur aotue yean one of the king's ju>lio»'; would nut accept, but he waa in no wiae oSisoded fay, propoaal. And then, when a weighty canae ia to be bean) tbe cuun uf Mentbaui, the prior M^uds down i)oe nf bb to afTurco the court'. At an onrlicr time, when the abbot 8t Alban's had quarrelled with his knightA, he induned mm of the kiiqf's jnatioea, who had cumtt to deliver Iba gaol, lo praside over the feudal aaaeiubly under Um aab tiwv*. And, as we have said before, men were beginning to write books wbieb HhnuliI t4.>ach stewania how lo hold plea, and veiy buukfi they are*.
A» in the communal so in the feodal eoorta^ iJm
for the time being the ati?ward is yiuiai a rujni jwsfins* Bm *iu the court banm ibu iiuitor- ' jadf*««* — this rals »
well maintained throughout th . ..> agt«. At tbeir md
it ia Hsid that two miiton will soSicci we may widl duoht whether so small a number would have been mfan^nalo at aa
' Ihirliuti K&lnuUi^ i. |^ it, aU. ■ UU Cultuf. U. M, AS, M. IM.
• lUL yu. Chnm. Mmj. vi UiL
* am Tht Coatt Uaiuo fSaUn flos.^
earlier time'. Uerict. a justice of John's reign, soems to have demanded twelve'. How far any HiHtinction wae drawn in practice btitween caaea which afTeclcd free men and those which a^cted unfiree men is a doubtful question*. In Coke's day it was said that the loni of a manor had one court, 'a court baron.' for hi* freeholders and auuiher court, 'a cuHtomary court,' for hia Bi) oopyboldoi-s, and that in the latter the lord or his steward was the judge. Now over his unfreo men the lord had, ac- cording to the law of the king's court, almost uulimitcfj power ; nhort of luaiuiiug them he might do what he Itlced with them ; and every tenant of an unfree tenement was a tenant at wUL Nevertheless in the court rolls anil the manuals for »tcwards which come to ua from the thirteenth and fourteenth centuries we caimot discover two courts or two methods of ooosLituting the court. Freeholdcni and serfs are said to owe suit to the 8ame halimoot, and, so far as \\c can see, the curia which pro* noonces judgment is always the same body. Occasionally distinctions of status are uoticed. When the lord is holding a view of frankpledge, if he has many tenants, he will sometimea copy the procedure of the sheriff's turn ; the presentments will bo made in the Brst instance by villani, and wilt then be revised by a jury of fre*'holdera*. Sometimes two bondmen will be appointed to affeer the auiercemeuiM of the bond, while two free men will affoer the amercements of the free'. Xo doubt, again, A £ree man might have objected if among his doomsmen he saw a serC No doubt, again, the theory that the vUlein tene- ments were held at the will of the lord was by no means idle ; the lord could not be compelled to accept a new tenant against his will. Still, so far as we can see, when the lords interests were not being actively asserted, the serf who sued or waa sued in the manorial court got the same justice as that which the free man got; he got in theory the judgment, not of his lord, but of a binly of doommnen who were at least hia pcerv. We ^bay that such a judgment he got in theory; in practice the ^^Bueittion became of less and leaa moment, for trial by jury
^^P ' Sfflwt Pl«u iQ Aluiurial Coartv, vol. i. p. Izii.; Add to tht roftruoM ^^^. B- 7 Bdw. II. f. 8S8: lix tatton am not sootigh (or « little writ of right in a iBftOor »a the aitcicnt tlvmasno. ■ MuDtmeiits OildlullM*. i. 116.
* Select Pteu io Mktiorial Court*, vol. i. pp. Ix-lixUi.
* Tbe Conn Buon, pp. 100, 110. * lUd. p. 101.
I. 36
594 Jw
and CommHnal Affaim. [bk.
f^nwluully furood lU way iulo the mAQorial cgorta. In of l&w Uic* lord oanid not compel hiA free men to •erre in civil cauaee; they luid ihe ktiig were agreed thai doch bvl the king should uuike them sweur; bul the lord couM fbttv hit bondmen to sweftr. aud ntany a hmII freahokier wsoid serve rather than quartet with his lunL At any tmla trial by jury made ita way into theao courta, and it hardly leavm a place for the donmHman ; indeed in oourse of time the 07 for a indiciuin parium ia (to the ^redU distartiDa af hiakw?) aappoaed to find ita aatinfactioi) in trial by joiy. Very lale (^ in the day (for wc ran Dot trace thiit further back than a Star Chamber case of Hcnrj' Vni.'ii rvign) we hear a Jutmww which, if it luM any historical w:uTant at all, waggmtt thai tio lord could bold a court eveu for htt bondmen unleM be had free doumaroea. for it is aaid thai then* can bo no out at leaat two freeholders owing suit of court. In doctrine how we may, we can uut believe it aDdeni, As ia the question about the uae of words w« shall apeak below ; b«l we do not believe that all the manena of the twrifkh and thirteeuth oeottiriea compriited IrMboldenk Aa to tho qaailieH of law. we can not finti that n hmVn juriwlictinn uvar ftwa mm was in any wise dt^pendent upon his having villein that his juriadiction over his villeins demanded the of fireeholden. Vvry little weight should be aaeribed la onreaaoned. unezplmned dictum of the Star Chamber at a time when the feudal courta wu« aenila and viDaiMgi was all but dead, and yet this dictum aeena to be the source of tho famous dootrine that a naoor ean not without two fretiholden'.
J ft. 77i« Afanor.
Hm And now at length we may go up agatnat the
"""^ may make our task the eaaier if we oliMnre that * the
more prominent in modem iheociea than ia medieval Braetoci nuvly u»es the lenn wiinmiaia^. Oely in does he give aoything that oan be called an ciplenalioa of that wocd and it expUimi very little. A peiwoo who
> SalMl riMs la lAtaedsl Coortiw vol i. Pt^ to-tallL
r. m. § 6.]
The Manm'.
595
action for land must specify the land that he c)aim& In so I doing, he will |)erhA|)« use the word Truznei-ium, and therefore it
IiH necessary to note thnt innuors and vUls are nut all one, that Bumetiraes a manor and a vill bear the same name, that wme- times a manor contniuH several vills, otid again that a manor is Uot the same thing as a mansion'. But what is the essence of a vianeriuvi we are never told. Such records of litigation an we have in print give us no further help. Sometimes, though liot very <ifleii, the object demanded in an action in a manor, Hid we may find disputes as to whether a particular tenement is or is Dot a part, or * a member ' of a particular manor. The word is used in conveyances, and doubts may arise us to what ^^ has passed to the donee by a gift of * the manor of Bale.' But ^Bin coDVe^'ances the term i.i much lesa common than we with ^B our theories of ' a manorial aystem ' might expect. Even when ^" yte turn to the Hundred Itolls and read the detailed descrip- tions of tenures and tenementa, of the groups formed by lords and tenants, though we may well think that we are reading ^H of manors, still we may often read through many pages without ^■seeing the word mauerinm. May we hope that we have shown, ^Has Bracton showed, that much may be said of the law of tenore. ^H of status, of jurisdiction, though that word be never employed ? ^V In a sense therefore we must deny that in the thirteenth •VaMrnoti centuiy the word nianenum was a technical term, that it mid. could be placed in the same category with vUta, feodum iinina militiH, Uberuin teneinetitum, viUe»aff\um. There are reasons fur thinking that in a remoter past and especially in Domesday Book, this tcnn had borne a dcftnitc legal sense which was concerned with the levy nf the danegeUI*. Be that as it may, we believe that in the thirteenth century no strict detiuitiun of a manor could have been fashioned. Any word that is commonly used tn the transaction of butdnees is likely tu come before the law-courts and tu be discussed by pleaders and I judges. A modem court may be called upon to decide whether a four-roomed cottage was fairly described aa 'a country housv * ; but still, ' couulry house ' is not a trclinical term. In our own day the term ' estate ' is used by Englishmou to dMcribe iracta of land; but who can accurately deBne its meaning i If we
> Unoton. f. ^13, 431 b.
* MuUiinil, Uomewliij Book mkI B«;unil, 107 fl ; and, to tin ooDUury, lUt. K. H. it. xii. 7(iS.
3t)— 3
596 JurmUoHon and CammttnaJ Affairs, [bk.
read in a biography that the hcrct liwj * au oitale in KroK ' ire should expect him to bav« bad tnonv than a rood uf cabbfi garden; bat how maob mors 1 Mu'^t there haro bosa a hamm and some Beldit ? roiui ho have had land ' in band ' 1 maat b» > V bavc! had tenant fonuen and cotlaf^vnT And what of oouotr)' M^at ' ?
In ibo thirlt'euth ccnlury the Utrtn wiaaanam ' bavo been no more preoiso than tht- t«riii *e«tal«' (•• atoi- monly UMd by laymen) ia at Lbu prvMUl day. U implwd, flor oxomplc, A d'rtAin goof^phical exteok. neitW too maU, mm too large, and a certain f|rL<«>graphical ooutinuily . but the re- quisite eisEc. the nH|uii(ito c*intinuity could Dot Us deAncd Ai^^ nuuiur in Cambridgtwhin* might liave a nerobur in ftuflalk ^H a manor in Kunt could nut have a moraber in Noribsmbdrland ; but thu fXftct di^nn.' of di^oootinuity that would have tbti Utmi inappropriato could not be 6xed. Modem to define a manor break down before this difbculty. Moat, not all, of them would iiufler or eveo compel u lo many a vuat honour Mattered about over all Bogland aa a nngle manor*.
Therefore to attk for a definition of a maiKir ia la aak fer what can not be givL*a We may however draw a pictore of ■ typical manor, and, this done, we may dieeoia the* il« from this t}*pe.
(I) The typical maonr is jmrgimfhitmniy viU ; the Ittrd of thv manor is abo tba \okA of and vill have one name ; the group of men, which, wbea m- garded from one pr^nt. iippoar» as tba sitfaita or liiwhlfL if regsrded from nnothrr point appean as a graop of all pecsODs who have land* in the vill hold af mm BDd U>a same lord. ThtH givf# tinilj to the manor, fur the towidhip has many public duli4ai, and the queatioa whether a gi acre u part of the vill or whether a givm penmi '\» a iiM«iih« of the towniihip is, we may my, a qaeatioa of publir k*.
I
> Ttnu SaItmi, Oopyhoy^ I. t;~'Anane*. .. .It - -^.^
by tb« tadnl kia«i vt thU naJm ki Um kada or huMM. vWi U^r^ ia p
lb* fau»d mit lo iahtlor IwmK rMvrlai wmik <in»km aW mv**w m
Ikontlil ooaTColvl, aa4 vUk yoaw to haU • Man {tnmm
baroat. for wJwtJm wMmi— uuuf*. festahtas Ika 4mi
Mid <i<iUas my dl^aaa of fn^m^ M*»— Omm.' WiOi
Ihte •■ ou aolffM* tha qoMttaa— Why te i^miAMtmmm
ha haa OAbmi maoon, oo mtan aa4 bo loiar
OH. ni- § 6.]
The Manor,
597
(2) The inhabited and cultivated lands of the manor are divisible into three portions; the lord holds land in domcene (in the nftrn>wost eonae of that term') and on thin atand his >85} houHo and homestead, and these are sometimes called pre- eminently the manerium ; then there are lands held of him by freehold tenure, and there arc lauds held of him by utifn^ or cuatomary tenure- The arable portion of the manor usually lies in two or three great open fields, and the strips which are held by the lord, by the freeholderR, by the customary tonanti lie int4?miin^led. There is also pasture land ; much iif it is held by the lord in demesue, but over it the tenants have rights of common. The manor is an economic unit; the lord's demesne lands in that manor are to a considerable extent cultivated by means of the labour services which are due from the tenants. (3) If the lord is a great man with several manora, even though these be contiguous, the accuunts of each are separately kept ; very generally each manor will have its bailiff and its reeve. (4) Lastly, the lord holds a court for the manor; if he is a great man, besides having a court for each manor, he may hold a central court for all htj^ principal freeholders, but each manor will usually have a court uf its own.
Thus we may regard the tj-pical manor (1) as being, ffuti vill. an unit oi public Uw, of police and fiscal law, (2) as being
Ian unit in the system of agncnlture, (3) as being an unit in the management of propt-rty, (4) as being a junsHictiounl unit. But we have now to see that hardly one of these traits can be considere<l as absolutely eRsential. The roost important is the cunuexion between the manor and the vill; a consideration of this we nnist for a while postpone; but this much may be premised that in very many instances the manor is not geo- graphically coincident with a vill nor yet with luiy group of vilU.
We may begin by saying that the manor comjirises axk*
house, or at all events a homusteail, occupied by the lord. hiaSSfc
'•ervanta or leasees. This from the etymologist a pitint of view
Kppeans as the esaeuce of the ntanor. The term luauor {inanS'
iuvi) is one of the many wurds which have their origin in the
tin verb 7iuinere\ mansus, munta (common in the Anglo'
xoo taud-b4)oks), marurio^ mansura or matura, meamaffium
* Sm ftbora, p. SOS.
598 Jurisiiiction and Communol Affair*, [bk. IL
are other eiunpIcK, luid it would m^mu thai euh at iImm hw but slowly Acquired a shftde of meaning pcouliiir to itaalt In OUT thirteeoth century * manor,' ' miuiMoa ' aod ' oio—»ig< ' m nu longer ooovertibic tenn», though ' nuuKir * i* ntill rnn— innahy used to signify jujit the lord's hooM or bowtwH aod an tDoro: the porta nunvrw is the door of the kouae or uf llM court-yard ; the «(«« maiunt in the ntt of the booac toyther with itM curtilage*; tbdeod in Ftmoce the word hmmmt mmm Beldom. if ever, to bev a more extended neunif^ SliU the word IB coiutnonly used hu aa to iDoInda tawA norm thao a hounc, as, for example, when Bractou toUa n* that a chief maaor may contain aeveral sub-maAom, that a mam^mm may be oompoaed of eeTonU villa*
. SometiroeA a phrase aeenu to halt betveen Um narrevo and tht! wider ineanini; and HhowN nn thr rclatioD hKwaua Iha tnu. When it in writt«n that curtniu landA * belut^ to* Mch A manor, a oonnexioD legal and econ'>Qiic beiveea tbea aad a certain huilfling is, or may be, in the writer'H mind. Oem- sioaAlly the worfJ 'hall,' which may hav« beeo coaupge la English speech, w used in the aamc way — 'he era soil I* the hall {aula) of lloniiogBbeaUi.' * it U customary Uod of ths hall (aula) of PackenharaV
However, we dare not say that it is iiMHspmablj o«eaaa>y that the manor idionld include a hooae oooapied by the krd. Oil A MricUy pononal occupation of oauna wo can boI iaasL. Many mauun wore in the hands of the religioua, and kaithw did tho monks live on the raaooca. nor was it oaoal hr «i Usbop or abbot to reside on all his manon in turn ; if h* hi three or four rasideaoea, this was acKiugb ; but b« might has*.
* am lb* tens now fivwi hf BIsksily io U Q. B. t. 11*-L lUnorial CourU, p. 44i '«! lOMpsr a4 potlaB BaoMU 4mi < riaai WtbtU.' I>urlum Hftlmcpto BidU. p. 11 1 'kornkmrn 4* DaMob mMmI hsh«» eoaunnnuu eum »niia»libfw aau « port* mmmmA ««>■•• ^■^■^^- ^ BirfMn.' IMd. p. Kt: 'rt ymm In lisi SMwrilfi^wsi' U. :
fha Abbot of a hpldt a wsnoc to ths vUl sf * wfahh mwMlmt ■ ■— l •mmw»mm ta i^mma vUl sgardMi vUdi oonlain* I scrta, sari ba bai ibm m A^hb* ■ MSr* SOTW or Upd. SO marm e4 pwlor*, t»A \ sen* W ■aisv, ■*! b» biMi lb* «sU muof in klmnm : b« has tlM ftisfcinU mA fl«i4k MaMiAa ai *» pnsMl dsj MMb a wun* m Dak Muiut to oAbs ■aeasb U» AAa« of ■ bMiB.
* Biaitoa. (. Sll. tM b.
* BfrfWin. Hoff^lk Coart Bob, K& S. li ta aot bM \m^m\ Itol ^ Bi* briJI. A.-a. W«l. h*i uy ot^molasisal AWiawil wMb LaL oi Urf t«D wordi M«B to haw baan Inalad aa aneSljr atatvalaL
fcH. m. § 6.]
7%e Manor.
599
IMWL
thirty or forty manors. The centre of the typical manor is often a homestead, or farmyard with bnt humble buildinj^ placed under the charge of a bailiff, rather than a tine dwelling i87] for the lord and hin family. But it is doubtful whether we can even insist upon the home«tend. Often we may find that the gitug manerii has been let to a teuaut at a rent ; we can not hv certain that there are any longer any buildings upon it, and if there are, they are no longer occupied by the lord or his scrrantA.
A similar doubt muHt be jtu^ented as to the necessity of pentsw
land held in demesne. Undoubtedly it is a normal feature
^pof A manor that there should be land the fruits (not the rents
but the actual fi-uit.'i) of which come to the lord's gamera ; the
unfree. and often the free, tenauts assist iu the cultixntion of
this land, the raising of these fruits; the economist is apt to
^'Consider this as the essence of the manorial lUTangeiiient. But
Veuppoee that the lord, more or leas permanently, parts with this
land in exchange for a rent ; has he ceased to hold a manor, to
be lord of a manor, to have the right to hold a court fur all the
^tenants of the manor T To all these questions we must answer,
lo, at least if the supposed alienation be no more than a lease
for years. Towards the end of the century it was becoming
)mmon for the lord to let the land that he had held in
lemesne ; but the farmer (Jiruuirim) of the demesne land did
lot become lord of the manor, the lessor did not cease to be
}rd, the tenants Htilt held iunii«>r]iiLt^Iy nf him, he »t!lt kept a
)urt for them and took itn profits. As to the effect of more
permanent alienations, there may be more doubt, and we must
^UiRtinguish a question alKHit the ust* of words from a question
^Bkbont the existence of rights. If the lord of a manor enfeoffed
Hjtnother person with all the demesne lands, this gift, we may
^ue Rure, did not necessarily carry with it a lordship over the
^"^tenantii of the free and unfree tenements, a right to all their
rent« and services, a jurisdiction over them. Men were verj-
free to make what amuigements they pleasefl. We have, for
example, an instructive verdict concerning the history of a
Cambridgeshire vill. The earl of Olouceater holds Rottisham
^^f the king. But his prpdeceeecnv gave 'the whole manor of
^Bottisham n-ith all Innd;*, demesnes and tenements, villeiuagea,
|^«uiert--ils, paKtures, meadows, mill.<ii, franchise of bull and rom
and all appurtenances and easements to two houses of religion.
iS^
600 Jurisdiction ct/td Oymmunnl Amw»;
to wit, a uioiety to An^eoey^ Priory and a moiety Priory, saving to himself and tun aucoumoca tbv frm note wi the free tvnontM in the aame \ill, and ntrin^ suit of omn frum ihnt] wl-vIck to ihraa Wttftka. and Mviug the hotnag^ mad ri'licfe uf the frco tenante and wardships aod aachette awl aM ploas.' The result in that the prior of Angliwy baa 900 aam and G rilloin» and o ooCert^lU, the priur u( Tonbndgv hm a lik« holding, while tho earl ha« aoroe 40 freflhold Ivnanta fcr whom he huldn ft i>oiirt ; the ri«w of frankpledge fcr t^ wboli vill is ill hi.s hiuui'. Hero wu haro the lofd of a manor gm^f half his demcsm-v and half his villein tcoemeuUi lo oim ftimj, half to tmtithifr, but n*uinini; u> hin)*>elf on imcaadiato JnniAip i>vt>r lilt; freebolderv, bin right Ui rc<c«ivo their reals nd lo boW a court for them. An ciullcm variety of such arrmngemHila «■• pMNiUe. the only legal limit being that which voold har« protooted freehold leuaota ugnitL*4l any aggimvalkia of tb«ar •ervieea. Probably, while tin* labour icrvicm of the vdleiaa remained unconimuted, a lord did not often part with whok', ur Hourly tho whole, of bin dnmeMie land witlioQi gi*iiif ! along with thin a right to thoee senrioee which hi* vUkflM been aocustomed to do on that Uod ; to have dona m veaU bav« been to ligbton or evtm to nboliab tbe aervioca; bal «km thoM wtrficeu were ooinmuU.-U into idoim^ dnce, than vaa nolhii^ to prevent the lord conrvytog away bin defDonar aa4 n>taining hia iiiiine<Iiiite lordahip over Um nUaiae and bie right to their khUl
To give pofiitivc proof that no fivuhokl teoaota vcne mtm nary to ounstituto a miinm'um u diBienlt. for, a> alrewdy aaeil. wc may turn ntany pagoe of the Hundred RoUa without mmimg that won], and certain it eeenw that toward* tbe end of Ibe thirteenth century a lord selduoi had many villein line at ■ without having junta few fhrcholdeni inlenningted with ihw Still infitanoea nwy be fonnd in which a Urn) haa i group of villein tcnaute with whom no freeholder Thua. on the abbot uf Gloucester's aatetee we find ibaft im village after vilhigt-, in which he baa demetAe land and tamtkj tenaDta in villeinage and in which he holds a ouort with viH— HaitoTs. he has no bveholderp, or bat one bwtMilm; yel la ^< these viUagea be baa NMUtfrut*. Again, a eoaipuiiM
Isiaa
* B. n. a «a7.
> Cv*. GtoM. iU. IM. <l fmttwt. Bm slw fel R. a O. MO.
CH. in. § 6.] The Manor. 601
the surveys of the thirteenth century and the earlier docu- ments seems to show that many of the freehold tenancies are of modem origin. As regards two of the abbot of Peter- borough's manors we may compare the Hundred Roll with the ancient Black Book. On the 'manor' of AlwaltOD, according to the younger of these documents, there are two libere tenentea, the one is the parish parson, the other holds but a messuage with a rood and three acres; the Black Book tells of no freeholders. It is so also on the ' manor * of Fletton ; the Black Book mentions no freeholders ; the Hundred Boll mentions two, one of whom gets bis land from his gnmd&ther, who was steward in the abbot's hall'. Indeed in the Black Book we come across vill after vill in which the abbot has many viU^ns and no freehold tenant. The theory that freehold tei^imts are necessary to constitute a manor will allow to some mighty lords of the twelfth century very few manora indeed.
One limit may perhaps be set to our scepticism: — ^there TaoMtiiii must be villein tenements, there must at all events be some tenants holding 'of the manor. A« a matter of fiw!t this probably was so. In the then state of agriculture a tract of any considerable size held in demesne almost of necessity implied a group of persons whose tenure of other lands obliged them to aid their lord in his husbandry. Still when we find the word ' manor ' used, as sometimes it is, to denote just the lord's house and homestead, and when we consider the close connexion that there is between ' manor,' ' manse,' ' mansion,' ' messuage,' we may doubt whether there is any severe rule of fashion, to say nothing of law, about the use of these terms. Again, we are not able to produce any example from the thirteenth century of an estate which is called a manor but wiiich hiis no villein or customary tenements bound up in it or with it ; still wo should not be surprised to find that if 1.590] a lord enfranchised all his villein tenements he still was said to hold a manor ; he might get a good deal of occasional labour out of his freeholders, so that their lands would still be knotted to his demofsne lands so as to form an economic
estate at Hradwcll ; Ibid. 714, SampBon FoUot holds the tnanor (expressly so called) of Albury but btm no free tenant; Ibid. 715, the Templars' estate at Merton; Ibid. 7'i3, tho Tpmplara' estate at Ltttlemore, they have no freeholder, the cuKtomary tenants attend their court.
' It. H. ii. f;38-y ; Chron. Petrub. {Camden 8oc.), IfiO, 165.
602 Jurigdiction and OommunfU AffairiL [bk. tLi
N<n- have
for
tlMt tbi»
Any wnirant ror wapfMang 6tAt« nf thingK could be produced only hy gn franchuw—t. In the account of eaatem England given in l>otiMiKla7 Book it is possible to find fKOfurni which have no t«iiuibi *bn «iv below the rank of nokemon, and Mme of lh«M maaon my Htill have bocn 'maoon** tn the lhirt«eoth eeotoiy, maatn with fivctiold tenantd, but without t^nantA of a b— er kind. Again, to turn to another point, wc hanlly ilara aiy tbu • coari pt'Twtn who hut* villein nr cuatomary tenants moal ban • nianor or must have a court. What can wu make of tkt numerous cawA in which a man hna but three or Ibor tmek t^nantit f ])oe<) he hold a court for them f Let a* examioe tbe- vill uf Upton in Huntingdonshire : — A haa a meama^ and half ^ a onrucatc in dcmeoiic and the nixth part rif a woimI and 'Om sixth part of one free tenant,* John thfl FVe«nian, w|w pava hiin Hd. uud hokb one carucale; and A haa aim ooe vuial* and n hftlf in villehiage which three rilletm hold of huD. mA uf whom payH him 10s. and mcrchct, and he has 'the ujA part of two villcinfl.' and each of them pa)s him 19dL far tlw sixth part of one oamoate; ami he haa two ootovlW eaeli of whom pnyft him -tv. sd.. and ' half one enlenUl * who pay* hin lOrf.. iinU 'the Ktith pnrt of two cnterelbt* narh of whma pay* him (UL : — li and C and D have cMtatea aimilar to A'm and Cbart are iome other holdings*. Whether A wontd have Mid thai hfl had A manor we do not know, but we can hardly that be kept a court for hia leoanta and fractiooal {laiia tenants. Obvioiuly in this eaae ibere haa been a among coheiresiea : part nf the estate that deaonulod to tkeai has been partitioned, part remainii oapartitioDcd
Bnt nmilar resnlta might be eatued by mhuAvAatita^ Once upon a time the king held Qrent Wilbrahan: be gav«{ half of it to Nig(<l the ChnmbfrUin, wht* gmi* half that aH hia daughterV marriage |>ortion ; thu quartrt- iff tbe rill now held by Robert de I'liile, who ha* 10 cuatumary Nigel gave away another pieee lo the Abbot of Wanlen . ibv reaidue of hia moiety deacdnded to hia St* daagfateti Umb tW king gave a quarter of the other nxaety to ooe Pienl, aad the remaining ihree-eightha to Hubert <le Bsiyh, wh* gava them Ui the Templars. The oonaec|net»efl ia that the of Wilbraham are divided among many lorda* ooa of
* K. R. tt. «M.
belmv
CH. in. § 6.] 77ie Manor, 608
but three'. A case may be foand in which a man has a few freehold tenants and just one customary tenant (a mtvim)', many cases in which he has two or three villeins and two or three cottagers. In these cases we can not easily believe that the villeins are protected by any court or by any costom. When a great lord detaches a few of his costomazy tenuits to form an endowment for some retainer, they can hardly keep their old condition ; in course of time they must rise or they must fell : their services being commuted into money, the^ may make good their claim to be fireeholders, or on the other hand they may become tenants at will in the strictest soise of the term.
To the size of the muior we can set neither an inferior not Mse of Om a superior limit. Occasionally diminutive w<nds are coined to indicate manors which are of less than the normal size ; thus Domesday Book tells us how the Bishop had a maneriolum in Lincoln with one carucate of land and sake and soke and toll and team'; and the Hundred Bolls tell as of a manerttium in Devonshire*. In Domesday Book the word ffionmwn often covers an exceedingly »nall quantity of land; the so-called S9S] manor is only a peasant's tenement*. In the thirteenth cen- tury we shall hardly find the word given to such little estates. On the other hand, the very largest manors which then meet us have all the appearance of being old.
Four cases may be mentioned. The ancient demesne manor of Bensington in Oxfordshire has according to the jurors been vast ; Henley-on-Thamea, Nettlebed, Wyfold, Hunter- combe, Warborough, Shillingford, Holcombe and Crowmarsh have been its hamlets, and four hundreds and a half have been appurtenant to it'. In Domesday Book Bensington pays the king the large sum of £80 and 100 shillings 'and the soke of four and a half hundreds pertains to this manor'.' In SufiTolk lies the huge royal ' manor ' of Lothingland, containing the t«wnn of Gorlestnn and Lowestoft, which lie some nine miles apart'; this represents a great estate held by Earl Gurth in the time of the Confessor*. In Lincolnshire the king's manor
' It. H. ii. 41tl. 3 B. H. ii. 875.
•■< D. I), i. 33B. * R. H. i. ft6.
^ Maitland, Domesday Book nnd Beyond, 116. ^ K. H. ii. 751. J D. B. i. 164.
" II. H. ii. 160-9. " D. B. ii. 388.
of CMtor include tniuiy adjftc«ut vill«gc« or pvit of this had buon a gn'nt ^|aU> of Earl HofrAr with t40 24 riUani, 28 bonlarii*. The manor of Tauntua Daaa BanwDU* villafCMt; in th« ConqufrorV lUy li hnm^ btabop of Winohvatcr Xl 54 n yoar* ; il has boooOM th» example of nianon abtiumniUy Uige.
We may probablv iu>ii»t llmt the unity of the maiuir iaplMe iat^. ~ a certain unity in iIh fubniru«traticin. A lord may haw ummj manon lying nde by aide, and yot th«y an wpaial* imiiiw. baoaoM be traabi tbem aa ««paimt& It nay, na dooh^ W tnio that the manor geDoimlly had one ast of o|Ma fieMi U> itM'lf, nno 9vi nud no more; bat ezceptioiM on both ada* uf LkiH rul<; muirt. bare bora oommon. Each of the «>■• maneriti o{ ]3omcMlay Book am mit have had jaM oor lec U fields .and no iiiore, aod Mxne cif three vaat mamtnu existed ID thi* thirteenth century'. On the other haad. in Cambndf(t»thirc we 6nd Mvcml manim in aloMat vill and then look at roapa that were madv bofure the inck«u« uf the upon fields, Wf shall learn to doubt whothor » Ihw part of England the tandn of the manor cook!, even namaMf, be bnmght within a ring fence ; thoy soem to have bin iaMr mixed in thf^ coininun fieldtt with the land* of the other uf thu auuju vill. TIk- dvUiuiiAtiuu uf one flUriHir hum manoiB of the mme loid seema to be a maitar of eoomiiaeBr one may becnniK twD, two may become (me, aa tho lord to hara hiH accuunl* kept, bin renta ooUcctod, hia gahierod in this way or in tliat. At loaat with tbe of his frix'huld toniuiti*, n lord may ' attorn ' a pieoe */ tu thie manor or that, decide that the teiwiit* ahaO f»f rente at thii houM or at that, while m to hia their connent ne«d not be aaked*.
On the whole therefore wc ooine to the ooodi the thirteenth oeutury the *uid 'niaoor.* Vikt llw *i our own day, wu a ragoe. though oommoo aod oaelul wnei Aj^iUed to a given instance it laigfat be definite WM^gh ; ^ ooa voold doubt that oeitoin aerei beloiigad to iho aoBBr «f Dale, just as now-A>daye it may be notariotts thruughnnt lh» countryside that certain acres are part of the Dale wtote; bal to have inquired what it was that gave tbe maiior of Dais M
*ft.H.LlM. •D.B.l.nVk *D.aLffrk
■ S« Nota Book. pL
la»l
CH. in.§7.] The Manor and The Toumshxp, 605
unity, what made it one manor not two manors (to be called perhaps Upper Dale and Lower Dale), what were the charao- teristics a loss of which would have been &tal to its existence as a single manor, would have been to adc questions no clear answer to which could have been had, because they would seldom have been useful questions. They could only arise in a practical form when there was a dispute as to how much land had passed by some feoffment or lease, and on such occasions they would be settled by general repute : — the jurors would say that the plot in question had always, or had never, been accounted part of the manor. In other words, we are inclined to think that the mere fact that a certain tract of land or a certain complex of rights was a mansrtum had do immediate ^ legal consequences. In particular, it seems to us that the men of the time would generally have argued from the court to the manor, rather than from the manor to the court, and would have said * A single court is held for it, therefore it is a manor,' rather than ' It is a manor and therefore it has a court'
§ 7. The Manor and The Township.
In a famous pa.ssage Ordericus Vitalis asserts the identity Coinei- of the maneriiiiti and the villa : — the Bishop of Coutances held nuuior koA by the Conquoror'a gift two hundred and eighty ' villas quas a "**" manendo inanerios vulgo vocamusV An assumption to the Hiinm effect seems to be made by the writ which oi*dered the Domesday Inquest ; the priest, the reeve and six villani of every villa are to swear, in the first place how the mansio is ciilk'd, who held it under the Confessor, who holds it now, how many ploughs there are in demesne, how many the men have — aiu) so forth. It in iissumcd that England is, and has been, hold ill villue, that each villa has its viansio. The answering verdicts do not altogether bear out this assumption. The local names which are used (when they are not names of counties or hundreds) seem to be with few, if any, exceptions the niuiics of places which were accounted vUlae; they are names of villages, and generally there is no difficulty about finding them as names of villages upon the modem map. Now
1 Ord. Vital, ii. 223.
606 JurUdiction and drnmumtjU Afffun, [i
CUmI.
M BonuM.
very cnntmonly it is true that a ungle loiti boldi Um plao« which bean ime of theae oamea. Tbe femola \ 'A (name of a tenant in chief) UnM X (place mine).* and wa do nut find that any penoo, other than A and (oDaota ot holda anything in A'. But this rufe is tabjaet to ao exceptions that in nome ports of the ooootfy H oeaam •« the rule. Such is the oaae in the netgfabaarfaood of Cbmbndfa. For exanipk', thera are five t«nancie« ia ehier iu Tnra^iagMa and mx iu (Jmulchaittir ; do one theralbra could call hiOMtlf A» lord of TrumptDgton nr of Orantcheeter, aave the ldn|p aftd ke only in the siinse in which h<? was lord of every rill in Sr^IimL In documents that aru lutt-r than Dntacsday Boulc «« aHn^* ^'^ timed 6nd thc> same aasumption, which in Preach we mi^fci 8xpree> thus : NulU vUIb mmt tngnmir. In the Ltgm iitmriti^ the pnest. reeve and four of the best men of ihv rill ny B» reprvMfntativeM cif the lord. Of what locd t The loeil «f the vill. The ^latlin titho of 1188 is to be tmammd m ^A parish in thv prvM-nce of the wijeant and cleric tif Um Of what bonm t The lord of the parish. For tbe of the tsx of 1198 the prc^eaoe is required uf the lord of vill (ir the buliff of the rill*. Even the itatiue bcwk of Iks fourteenth oentary seetna souiutimas to tamtnt IfaU will have its lord*.
All thiH i» signiHcatit, far it seems in testify to a belief that minnally vill mid iiumor arc but two thing: the villa of public law is the suaerMMa of pn»p«ty law. In fovour of the aseumption that Ihni is the oucbiikmi ^ typical, we may add that it ih the simple mod expiieable ^ea. When vill and manor cxiinoiile. then we see an arptakmtitm which will enable tlir township to diicbar^ iu pabUe dattea It now has a conn, in which a reere and caaalaUe ^af ht appointed and in which all qutwttoos relating fcn the appottM- ment of public duties can be deoded. Wo can also mm hm in this case the township can have *oaaiDMO* ngbU. the ff%lrt for exampli* to tum out beaaU en a eoounaci pvstorv. ifc* soil of that ftAsture belongs to tba lord of the viU uhJ
* Li|. Bmk. a 7. 1 T. s Mm lbs doomnrtiu <.f UM ud UM Id
• MO. « Xdw. m. 0. U : •MMOtMl
a ooam^^l namea fcr tmtt^
par oilal fissi ■owrdgs ito k Tilk. •.4: ••nUsMtntfUkrottiMl
CH. iiL § 7.] The Manor and The Township. 607
lations concerDing its use can be made in his court AU will go smoothly, for the ct»nmunUa» or eommtma of the township has a governing body, a representative assembly which meets periodically. Very firequently this case is put before us in the rolls of manorial courts: — the body of persons who attend the court represent the township uid indeed are the township, and so we read how the vilUUa gives evidence gives judgments, makes presentments, makes by-laws^ The lord's court in such p. 596] a case was not merely the court of a manor, it was the oonrt of a vill, of a township ; in Englidi speech it may often have been called the town-moot or township-moot'.
Such was the simple, and we have seen some reason for tui coin- calling it the typical, case. But in many parts of the country ^^m it can not have been the common case. In the thirteenth '°°°^ century the terms 'manor' and 'viU' were not equivalmit. The legal principles which shape the manor are not those which shape the vill. For a moment we may even be tempted to say that the vill is an unit of public, the manor an unit of private law; the one an unit for police purposes and fiscal purposes, the other a complex of proprietary rights and of the mutual obligations which bind lord to tenants and tenants to lord. And there is truth here. To all appearance the boundaries of the vills are matters of public law, not to be disturbed by conveyance or contract. New townships can not be created or old townships abolished by the lord of the soil, for in so doing he would disarrange the fiscal, administrative, justiciary scheme of the hundred, the county, the kingdom, and might aggravate the burdens incumbent on his neigh- bours^ The power of making new vills without licence from above must cease as the centralization of government and justice becomes more perfect, probably had ceased before the
1 Bodleian, Huffolk Court RoUa No. 3 :— ' Villsta didt qaod P. 8. et E. C.
fodieruut cummimam de H et quia OODsnetudo tiIIm doq est talis,
conHidoratum cHt quod V. et E. diHtringaDtor. ' Duchy of Lancantar Court Kolls, Bundle Cy'i, No. 7-^0 : — ' GonBidcrfttum est per totam villatnm.' Select I'leas in Munorial Courts, i. 11: * Villata presentat.'
- Ah a matter of fact the title of the court on ita roll will seldom use any of tbeHi! tcrmH. The court is Himply the court of Mickleton or of Littleton.
^ Unicton, f. '211, xpeaks of the formation of new villa. Seemingly if in the vill of A a nun- ^roup of huuHea is formed, thia may come to be known as the Till of li ; but thenc houpen will be aIho in the vill ot A. In pleading one may dc'icribu them indifferently as in A or in li.
608
Jurisdiction and Commxinai Jffairs, [p3L, IL
end of the iw<*lflh rtftitury. Bui the fwxi ceolanr wa* Mar its cutd bcfi>ri- lanfinwnei-^ hiwi lost the powtr of ervUttf new monora. The process of subiafuudatioa wcot on rmpidly ; it WW governed by rules of privftte law ; it cf««l«d an uuuKHH. Purtitiou umimx coheireveA wu anocbcr waanc W MW manors; even iu later oenluries whcm li^al doetrUMt Itad collected nmnd the word ' tnanur.' aud tlus gvnenl ihaocy waa thnt n manor must have exuted from beforv the of k*gal memory, it wan still admitlcii thitl a paftitMii oo-paroenem might make two manors oat of ose'. Bat aar- viooablo though thin general idea may be, this eontiaat brtw—i ^a aoits of public and uf private law, w« ma not fKM in borne. At leant according to oar madam ideai^ a court ii ■■ inittitutv of public not uf private law ; but it ia rithnr Iha manor than the township thnt ban a court : the towttdBp M such has nonf!. Still, though it may bo impoHable lor Oi ta explain the disliuctiou by any gcDaral tenna of audmm jnf»> prudence, it cxiMtcd*.
Bracton cxpresHly Lclb u« that a manor may oouuia Bawal •uu. ^ vilht*. Thtf bixhnp of Durham w^enw to bav* bald aixtj-artM villtt diHtribiitcd into l<<n manoni. no that oa aa ayeragt aacb nuuiur cuntiiiiKMl nvim than six villa*. fTui h raw, nnmiw a the north, we may at the moment paw by at rmtnug no gnai difficulty ; the lord may keep but ouo ooart far wufwni vdk, 8till thfre ia a court which can act aa a gDvanung bnity ftr every vill. Far more perplexing ia the cm* in wbklk tbat* mm no C4iurt with authority over the whole viU. Yei Miefa a caat was cuiumuu. if wc may tniat tmr cfiunly hiaUvM, thtn w
> .Vir J/oyU ftecA'i Ciur. It Co. IU». M. Tb MaMa V»^ A' ilM •ffaoi of pMtMOat iW <n*iioa («lh««la Una hy 'Mt ^ la* maoni. Bat, in UjliiC down Um rub Uul vwva ih* Uag tmw manm. Uvywrn, bainf ia titii earn vnaMt t» r*lj e« iW tba «bol«oai*. U aahUtorkal, priaatpk DmI » imm [iwlteri— by •odUduom uf tlnw.
■ Tha diflmattabuB of Um l«o tana* U oai Im^ hy a r. M. Cosuri mj9 lh*t la aaalaal tiaw* a «IU. TMa mnaii. whieh ia Itaa (tor aM t,f. Flaaa. ■<. lo Inply thai a tUI WM BO bofv n«»M m a m^mt far eaaa balora Uia eoitrt Raary Pmtjr pliaM tlal Iba Abf. «f hUafoBidlk. TUaBuniM«A«allwtvia<l9aMi>4kteytMbfMi lor tba fcnr vUU a laaaor %o wtiMi thraa ffBa aim
• Bnatoo. C. 04.
* Darlwn UaaDote BoUa. IslnA. p. Tta
;h. iil § 7.] The Manor and Tiie Township,
609
>ften. at least in the south of Euglaod, two, three or four 'manoTB in the same vilL Whon wc have miule loi^e ullowaaces for the vanity of modcro landowners, who have liked the sound of the word ' manor,' the ca«e reniatna cuminon, and, at leaat in Canibriflgeshiri.', thu Hundred Rolls show that tt was common in the reign of C/lward 1., whilo Domesday Book shows that it had boon common ever since the Conquest. When tere are several uauora in a vill, the names that they bear are ^often not true IocjiI namiu* but family namei). the namea of the Bj pentuns who held them in the thirteenth or some Inter century.
There is, however, a difficulty before us when we attempt *'»»"f*"'*
define the cases that are under diHcuwtion. We must in
[the firHt place mark otf the instances in which there ib a
[chief manor with several sub-manors, for in these instances
the whole vill may be tnibject me<jiately or immediately to one
and the mune court, the court of the chief manor. That court
will be attended by the lords of the sub-manors or their
spreeentatives and may be able to act as a governing a.>iHeinbly
tor a whole vill or for a group of vills'. But. though it is
to fix the limit, we come upon cases which we can no
longer describe as presenting the phenomenon of manor and
. snb-manor. The ditiinulty i.s occasioned by the vagueness of
the term 'manor' and the fact that in a certain sense every
[vill in England must have a lord who is lord of the whole vill ;
lat all events the king will Iw lord of the vill ; all the titles of
[all the laudbuidorN may luuct at mu\e point short of the king;
|the whole vill may belong t«} the honour of Gloucester ; but at
any rate they will meet^ in the king. Xow when in a single
vill we find three ur four lords each with land in deamesne,
lEreehold tenants and villeins, and each lord holds immediately
I of the king, or traeeK hts title frr>m the king thntiigh ti different
series of mesne lords, and when we Hud that tlie king himself
has no demesne land and no villein tenants in or near the vill,
rwe feel that any talk of chief manor and siib-mauurs will be out
mf place : — the king has no mnnor thoro, and no uno has a manor
[which contains the whole vill. The case is much the same if
[the titles of the various lords meet in the Earl of Gloucester;
|ibe whole vill forms part of the honour of Gloucester ; the lords
^ Tbni Ihii teouiui of the nuuior uf BAmpton Pogayi whfaA ia h«UI by Poge^ tuuift oiiov A ;r<!«r Appenr in Un< oourt o( Bobcrt'S lord VmUain of ^iSsom; B. U. ii. 6^.
r. M. L 39
diO JurMiotion omj Communai J^ffair*, [i
VOL
«aUM.
may be bound to nlti'titl the court, or uuc of tlie oottrt* of honour; but if the KatI bju uu tltsmosoa lukd atid ixi tcnanta iu the ntiKhbcuirhood, wc ttbikll Dot i«jr Ui»l nay «f Earl's manors cumpriMW thin vill. But wu haw Ut im r*^a» phnsM tueh aa * iu the aeighbourboud.' Id Oslbnlifativ Rnliirt Danvam baa a oonatdorable «atAt« at Totaworth. JoIm OMM. at Milton, Hftur}' do Bruyli at Watcrvtokv, Jonl&n ForaAcr Awxit, thp nbbi>L of Thain« at Atfingttiti. Nichobtf Sagimf* MonDtoii. William Qualcrtnaimi at Wtaitoo; each of ihwi li many tcniint^: mo«t of tbein haw what atjomjiim to aoj dt'linitioii inuMt be nianunt ; tb^ir boldiogw lie in vanotw rilU, some lying more than five milt* from Thamo . yet eaeii of tban holds ' of the manor of Thanir.' which belong* to tb« BiAny rf Lincoln'. However, wc barv alrmuly huU otir «ay aUwt tW verbal i)tie8tion; the poilit now of iroFv^rtajioa m tlM» Id aO appoaroDcu therv w«ro m&ny oaKs in whitb tbert «•• do ttrnkk court that oonid in any schm claim authority over tb« vbolt vill And many other caiet in which the iinly (euilal unity of tW whult' vill waa due to the fact thai every part of it remotely held of aome great lord and waa, or might be, dented in the court of some wide-npraad boouar. KngUnd not c<impo«M] of nianoni- In many a vill we may find a tcnurot'ntA which in the fumlnl or ItinuruU M->trra utaod apart from the tenemenu with which tbcy arv h Their hoIdf<n art* nmall p<^>plt.> who are the imowdialo uf the king, or uf fiuniu uiogii-ite who ha* no utbur Uad ta vill or in itii neighbonrhoorl.
How then were the internal alTaira of the vill It may necm to u» that here we ought lo datael organisation of the vill that is not man*ifial, not fewlal, * i4twmihipinool,' or mme intermanorial ofgaDtiatifiB. Ill* iibip muttt have a reeve, the townahip moat aeoil four good meo to court, the tcfwnnhip moat capture felooa and k««p ^htm in coMtudy. the township must make all manner iif payumak, periodic and occaaionid. How out tbcoe datiea be ap|«)rt»uni4 if Lheru be do court, aaacmbly, govemiiqc body of ibe vitl '
We have looked for such organisatioo in oor daenflMinia without finding it. Tu ny that it moit have eijeUd ie ■• expediuul from which at preaent we »brink. Such •vidoae* aa we have pointa, not tu any village aaMOibly. boi tu p«nnaaaM >*
iJb
CH. III. § 7.] The Manor and The Township. 611
arrangements made once for all, arrangements under which, at least as between the various manors, lords of manors and extra- manorial freeholders, the communal burdens of the township have become ' real ' burdens. Once more we come upon the ' realism ' of the time ; one manor owes an aliquot share of all imposts exacted from the vill, another manor another share. The duty of sending representatives to the courts has been permanently apportioned. To represent Dodford in Bucking- hamshire one lord supplies three men, another the fourth man and the reeved The vill of Thurlby and Morton used to appear before the justices as an entire vill ; but now the Templars 'subtract' one man whereby the king's business is impeded*. The fourth part of the vill of Willingham, namely the fee of Cantilupe, does not make its accustomed suit, to the king's damage of Id. per annum^ The township of Abingdon Parva used to come to the eyre and the sheriff's turn by four men and the reeve, but now John of Girund withdraws one man and the Prioress of St Radegund another, so that but three come*. Such entries as these seem to show that the burden of provid- ing the five representatives, like every similar burden, tended to become a permanent charge on particular acres of land.
And so with the duty of contributing to fines and amerce- ^'g'^;*^! iiictits. Thu iiIi<[U(it shiiFL' that each hundred must contribute burdens. towartls a fiin' iiiipnsod mi thu cuuntv is known, and the aliquot sliaii' that uacli viil must jiav to a tint; imposed on the hundred is kiiiiwn. Thus it is known that it' a fine is impoHod on the htnnhi(l of Hoo in Kent, tho abbot of Reading ought to pay niii- third ot' it, ' tor h*- stands for a third in the said hundred as tlic tliiid lord of tln' saiil hundred*.' What is to happen if he procures a cliartrr rx.'iii])tin,L,r his lands from these fines is not \ery c!e;u' : thf nn-n of the hundred liold one opinion, the ..Ihi-ris of the exelieijurr another. So a^'ain it is not certain ]v<\\ far- thi'se apportionments are unalterable: — the nu;n of •J'l. Mai-shland i|>T|ari- that thev oui,'ht to l».'ar one thinl of the i-hart;fs cu-,!. upitn tlu' hundred (if Freebridj^'e, while tlie other iiieii uf l''ierl>rMlL,fi' a-siTt t liat uew assessments should be made liMtii liirir to liiiir". And s.. it is within the vill. In an anci.m siir\fy •<( tlir lau'U of St Edmund we read tiiat the vill
' It. H. i. :«. - It. H. i. -zm.
W. II. i. -MW. * K. H. i. .52.
];. H. i. ■l-H\. e Kc't. I'arl. i. i'lH.
39—2
612 Jurisdiction and Communal Affairs, [bk
i
of Rub/ n divided into fuar parU; the ball of tbo ooovwrt with iU) nit'ii is unc fourth, the luiil of Ralph HrvUm mwiUim'. the land of Xormao anothor, the luud uf Willuun and nf tb* aukemen anothpr*. Thui wbob wt» art tuld that a toviuh^ coDtributce this or that amount lottoiutr ancioal iinpo«t. tvwanJb the doneguld, tht* nhcrilTM aid, thr htindnxJ-Mcnt or thv Uke. *v must uul at oacv OHiume that niiy oi-jcAitixuituti of tbo rn'iiiifcui was ivquiflito fur thi.* as«,-asmont of thin dur. The*** Iasm acrM to be ndicatod in the soil. In tho lineolmhiro Uondrid BoUs we oft«n read how M. B. h^^ ^ubtiaotAd aenriov da* In Aa king, to wit, Iho BfaO'Hff'ff aid from otw canieate, or ftwB «i boratw, or from a hnlf-boviiU' nf land, Ut tbo kxa^t sod. or U> the kingV dainiigv lj<f.'' In the eaam <tf thcst! duis ihu mi>n of the towiuihip maj hare bam jiaa add seremlly liable fur the whole aioouot which is flakJ to paid bj or due from it ; Hlill, n« bt^worn tfav Tanoon ptfto the vill. then* wa« a |M*nnam'nt appurtionxnouL We oAaii compluinttf that thv Hnoncial affairs of the townolup have diaitnlerod hy claim* uf immunity from bucatiao, and thej that, if one lord fihuflleH otf his burden, he iikcrcaiex, at laeal br a time, tlie bunleD of hui Ddgfabonzi. Hugh do Oomay fw« one earncate out of l)i« manor of Houghton lo the pnr of Duufltablc; the teuontA uf thin camcate used to eontribst* la the aroeroementa of the townahip of Houghton ; but rnnr the; nlftim fmiichise under the kiii^'«i rharttir; thv luwoabip bcuu amcrcud fur an ceo^' Lu the amount of lOOi. ; the waa to be collected rateably according to thp rxtenta nf lea^ {per porciiijis* ft extentas tfrrarvm); the prinr't nhuv aa* SOa., he «riU not pay ; but tlie Till has to pay inetead*. But, tb9l^(k a groaii mm i» oharg^^l on the rill and the men at the viD am^ be jointly and aercimlly liable fur the whole MWh. elUI wilkn > the ^ill thi' f4uuta of the aaranJ taoMaeoto hare beao iairi DDCc and for alL
Snch was. we sospeot, or in the past had Was, th« mt» with the chorch'fata or its pnennor. W«
■ ai«^HMM7or8oColk.p.ma.l. •ft.H.L
at hi* BMi Inm tlMioolui4lrtordHflU,th«tMtariW*tt vrta^aa mieiwin woosb ; Hum t^. H. H. L la, ibc wkOt of Hw hmm fei Wd|» Is Wiodnr brii^ wmi ki be «i wtH ohI bi wU^ V^Imv. Ml fa ' ■lltillSKiil ' by riw P^of
CH. in. 5 7.
lanor an
ToivtuJiip. 613
ground every iuch of which has been undcnuiued by bitter coDtrovcrsy; we will traverse il rapidly*. Whether or no the church-rate has a remote origin, whether it is connected with ancient churoh-scottj and light-scot^, whether, on the other hand, the clergy have shiifHed off a bunion which once fell on them, we dn not inquire. We think it however ({uite plain that in the thirteenth century the general ciiittoni of the church of England, swerving in this from the iua commune of the catholic church, cast the burden of repairing the nave of the parish church and providing the main part of the ecclesias- dcal apparatus, not upon the parson, but upon the parishioners, and that the lay power left the spiritual tribunals free to enforce this custom by Kpiritual cenmires. Bnt we are by no meanh saliafied that this custom demanded any permanent organization of the parishioners, any ' vestry ' that would meet and grant a rate. So far as we can see, the burden is a ' real burdeu,* incumbent on laud. The ecclesiastical power can, we take it, deal directly with each individual landowner, can «xcommuuicatu him an<l procure his iinprirtonment if he will not contribute his proper hhure to whatever expenditure has beoome neceseary for the due repair of the fabric, and the question of neccssiity is decided by the ecclesiastical court. The duty of repairing the parish church is analogous to the duty of repairing the county bridges ; it is planted in the noil and to the soil it has ceded ; il is apportioned according to hidagc or acreage. No doubt, the occasional nature of the charge almost compels the rector or the archdeacon to deal with the parishioners as a body, to call them together and endejLvour to pen^uade them that a wall is crumbling or that a new missal is wanted. The purishio tiers will make tenns with him ; they may vote him a rate to be assessed in this way or in that; and very Hkely, aw (hoy will have to pay, tht'V will hire the workmen and buy the materials. The .splendour and costliness of the churches and their furniture increase very rapidly ; the iMinwn's demands grow heavier and more frequent. What goes on in the kingdom at large is going on in each parish. Money-voting vestries became as indispensable to the rector as money-voting parliaments arc to the king. Movable
* Amonjt the beil of thA m&ny |)iui))ihlftU on this Hihjoct *iv, W. fL UftJe, Tbe Antiquitj of the Cburoh lUu SjMeai (1^7): W. Ooode. A Brief Hulor^ of ChoFch lUtefl (1688); JtobtR Bwu, Tha Prindpts of Obnrah Bam (1A87).
614 Jtmsdiction and Commwtat Affairs, [l
wealth nmst bo btt>ught wilbtn the iphen of taiatWui Tn diukLi it would be as raah U> ar^c from the * ylrii parixhionctrs* mucLingi of tbe foart«euth ami fifkemtli OBatuMM tu similar aMHrmblies of an enrlior ttmo. aa it would be to wfM that the commons of %ht^ realm were reprewntcd in the onuKib of Honiy II. bocaut>p thuy wvrv reprcfiotilod m the parttamcMi of tiklward I. And ho with the church-vardeiUk. Wi> anp out purauftijcd that n« a general rule there were church -wmrdav is the thirte«nth century. They and Uwir legal powwa an. in onr lliinking, the ontoome of two movuDeatai, cnm m Ik* world of &ct, tho other in the world of legal tbougbL If tW puuhioners are vompelled tn provide |wvciou« b>H>ki^ ruW, vcoela, they will naturally desire to hare their aay ahoat Um cnetody of ihene articlm; paraonH have been known W acJl iW church pinte. Secondly. a« wv have ik?en. in the later ag«« n dead mint or a penonified tocUna wonld no kjager ae a peitona <uipablc of proprietary and pomtmmry nj(tit*> lawyers are beginning to hold that the rector ia km tbe o»*ner or tenant of the churrh*j-«nl and tbe glebe; have id find an owner, at all evenU a poMcmur. iiir wbal m psAt had been the chattels owned and poaMaad by a mmi «r a porwnified eoeiwwi; the ehurch-wardcna {nant as claimants for property and pneiMian'.
* Th« flnt dear tidlap Hut ve (at m to Um JaiUaom el llw cMt Qpun Ibt pwiifaloacn ttU oi Ihat ib&f -oaatiibmW terra* ijtuuD po— idwt la tadan panttUa'i »/b>< wf Sartw (laiTK Conrillft, U. IXH. Jolia 4« Albotui, CoaM, OCbobaai. caa. ftragmMam, tlnubu atutlMr Ul* bonlra U *nal' or
(ftTour of r«Klit,Y, Itut on aiUMT aiib ftUcv** nucbing iMjond tMf/ltint^m am ^ CoU ud DtffML In \tji iha towntUp of Qtw^ o— waite «Uk a Maoa tm Um npotr o( k wftU of th* ehsnlii be ta l« hAT» Si. W. taf ik* ««f k ttai a »■» Df wbMU &gm «ff«7 boow i *iba aManay of Iha toviAlp' aaid k>B la tta lUr of SI Iw; 8dMt PWai in Manorial Court*, p. UO. la l»7» «• «• pariahieiMC* ■■wMnl. inftkinH « rtvaUf rair anl AtittmlBiae te tl ; kat a
MMat ewa«dln«l7 doubtful «lirth*r U)«lr 'hi Ilia ktada aa» vln kM ■«
HHaaiadloH: V. B.MBdw. tn. t lfffT>iB.pLU). tlto iaat ^ aM IbA B« U ■ 'vartij* bad aa old aod «aU-«aUb(iahad povar «f pmaAiBg: a«MMiia and aofbrdim a raU. Ai lo Ui><toroh-»aTdww.UwykieBWi pwiBl^a^^ fat itw Y«ar Booki of ih» Mnmtb maOarf i b«i •«•■ ikaa waw ^M«aa9
priD«ffl«aawBloUIsdiiViaa)Har.r-Ta U Han. rv C U tVi^ pi m. a Baa. V. f. < (HiL pL lS>i K Um. TL t. K> (ttat. fL 11^ Ite l^nal id Kiatar lo 11(17 (Ma abow) had mSA. -Oniaaaate • eaatttUantiir. a««i Mht* mh eaiiaAa hUar—, aW td •KpoalalatwiL' Tka Ckarah-wardm* Aavovaia eHM t? Mifeip l«»(i tot Oh Biwaawrt Baaoid Soitalr paiai b» Iba
IbTi^H
halblki^l
1=^
r. ni. 5 7.] The Manor and The Toimishtp. 615
g A curious j^limpae into medieval habitH <-mtl thoughts is ApponUm* b^ren tia by the hiHtor)^ of tiiose my&i tAXti» upoD movable goods luMoa which are bocomiDg common al the end of our period. Upon ""wbta. the fiice of the dtwiiments which prescribe how the tax is to be levied we see little enough of ' rcaliaui.' Every mau in England poy a fiflocnlh of hia movables and therefore every man ttloton must do st». la order to reveal the amount of ia wealth, some of his neighbours must be examined, aod for the purpose of thn requisite assessment the vill will be taken as its unit. Four or eix men must come from each vill to meet the chief taxers whom the king has app<jinted. It is possible Ihut in some of the early iustauces these represen- tatives were chosen by their fellow villagers — even this would not entitle us to imagine any stamling assembly of the town- ship— but so soon as the procedure becomes perfectly clear, ^H the villar representatives are not elected by their neighUmrs^ ^BThe king appoints 'chief taxers' for the county; they are to i06] cause to cume before them so many men from each vill thab they, the chief taxcrs, may be able to choose out four or aix, who are thereupon to appmise the goods of everj" man of their vUl*. Of any sum of money cast upon the vill as a whole we read no word ; each individual niau of the kingdom ia to pay a Bileonth of his movabk-s. However, in Edward IlL'a peign the effect of repeated taxations is that certain quotas have already struck root in the soil of the villa. Frequently a town- tp complains that it is aascsBed U)o highly, for it is not 8o
irUHtiiUi snil rifl«fniii wnturiui tlt« making aud enforooineDt ol » com])ul»ory
!lunih-rRt« wiui a r»r« vveiit; inilevd ihfl leftmod mlitoi (p. 831) Mya Uut liu
|%llt one oasa before tlie r«igii of Eliiwltelh. Tlie chnrah-irArdAiui aeem
thu i&oo«7 thai thfiy ne*d6i hj tnnni of voIiiDtar; itUti uid
lagHiH uid of 'cliurch-aleti' wliieh opaneKl tli« punei of the pariihiooan.
* The very (let that the mode ot uwoxment wu onen ohuised pointa to the coDclaiioa that then wan oo pnnnanunl orgBuizatioD apt for the pnrpoee. Id IIBH the indtTirtita) tniimyer ftiuoaoeB himself hot ia Itahle to he ebiwktd hy Uic lord's Kteward uid Lho paiimh priot ; if tb«y dinpute the correetiMM of hia hIJiiiiIh. I'nn iir mb u( hi* fellow pariNhtonera are awurn tu Mwm bita. In I IDS tlw vfll U npneenlud by the lotd ot the vill or hU hailitf, the reerv and four nMU. In 1907 tb« taxp^an dMlare thotr own liabilUy. Oo tu 1335 the tax- p«]w aw8u« u to hii ova goode end those of two of hU next notghboure, USmDOM twine Kferred to a jurjr of Iwolw. lu 138i four men ui to be ofaOMB (flffroKfur) in eaoh vill, and the; witli the ronve an to make Ui* MMtament. lu 1337 four men ar« to be oboaeo (ttigl) in e«oh Till to make the
laat. See the whta to Stubbi, 8«ImI Clisrtan.
• Hot t'arl. 1. S89, 340. 9G9, 443, 44fi, tfiO, 457 ; ii. 447.
616 Jurisdiction awl Communal i^^i'm. [bx. ft
tktf
rich M oooe it was. Aruadet biu feuflorcd by fan, fvatoaik by wtttor; in Brodwoy there used to livo « rich man who pa»4 two-thirdv of the Iaxch. but now h» U dmil; mao ara Dtirb)' u> livu lit Noitiiigbam becaosc tJke boidco «f and tiftecnthn lies heavy on the former umn ; the i Newpurt complain that the preaaura of the fifteenth npaa in iucrraued because the Prior of Noirport ham aeqaiivd tbeir vilt and ii free from taxation*. Now all this a given vill in rated at a certain sum. and that* fifteenth or a tenth of roovablea is payablv, the ckicf iuaist that a fifteenth or a tenth of that sum must ooiDa finNft that vill. There is in this case nothing that we ean witfc accuracy call communal or nommun liability. Th» sab-tesKi have to apportion this fixed sum among the men of llMir vQL and the individual man will be liable only fur the amouBt which they cast upon him. Still there is a loealiaed allutwl of the tux amung the villa. The caae is lb« BKit* iiMClMilm beoauae the growth of this ^tcm aeemi bat half reeogiiiinl If a towuHhip is impoverished by flood or fifv or the diaik af a wealthy member, ii demands a new C«jmtioD and aaaa* t» regard this u matter of right This is a rcmaritAbtfl of the ' realimn ' of medieval taw. Kren a ux on can nut live wiihoot ruota; it mu«t attach iUielf tfi lbs I We bcc this happening in thr full light i>f the fourteenth tary to the detriment uf the royal excbcqacr. which i» kttvM to reganl the wetdth of FZngUnd as a fixed quantity. W« wt^ be fairly sure that in earlier day* this realism was yet atruqpr. aitd where it prevailed no permanent coromuoal inai hi— J was reijuin-d for the upportioument of public burdm^
The i<tudenL of tJio middlo ag«s will at Ant m^A «■> ><
AeUau
SS^Ivj. communalism everywhoro. It aaems to bt an all parvwiiai principle. Coiumunitiea rmther than todifidnU tut the rhif f iiniu in the govemmentAl sjmfeML A litUa perience will make him distnist this oommonalim ; bc^lu to regard it as the thin cKmIc uf a rua^ and ra^ i dividuolism. Ue roads of an action fur damages giveo a hundred which lias oeglaoted iu puboe duticM*. Ai 6n« W may think that the hundred as an iiaiMraahu baa pffijyarl/ oat uf which the damages can be paid. He will mmm W
> BDt. Port. li. lai.^ >u.
> SUU1« u( VTiiMlMlCT, IS U«. I.
Itia ^^
■MlsiSH
;h. nr. § 7.] 7%f ^fallor awl Th*> Tou^nship. 617
» » *
,pet8uadcd that thia is not bo. He Dcxt imaginea the huudred- oot levying a rate for the pAyment nf n gum that has been Bc^udged to be ilue from the buudreil. But, luniiug lo hU .books, he Hnd» that there ia nothing iu the ciuc that ought be called cotnmunal liability; there is merely a joint and several liability. The person who has been iojurod picks uut two or three wealthy iuhabitante of the district, sues them for the whole sum and recoven^ it fn)m them. But at all events (90 he may think) these men will be able to claim a contri- bution fnim their fellow iuhabitants. No, the burden lies where it originally falls. This i» m until Elizabeth's day. when for the first time a more equitable and a more communal principle is introduced, and all the inhabitantH are rated fur the relief of those who have sufifered for the sina of the hundred'. What we begin by calling the permanent chargea on the community turn out to be ' real ' burdens apportioned for good and all upon manors and virgatcs and acre* of land, while, at least in wme cases, aa we have just seen, the occaHianal charges are distributed by chance.
But (to retuni to the township) the unity which public law Eraom^ demands from it is not the only unity that it displays. Having tba tum- read, for example, in the Hundred K*»Ils, how in Carabridgej^hire "[[J^
the vill contained two, three, four manors, having veritied this pin Domesday Book, having seen for instance how ever since I the Conquest there have been five tenancies in chief in
Trumpington, six in Orantchester, we turn to maps which lahow that very often these uianora were not uontinuous tracta [of land. Each village has its great open fields; the fiolda I take their names from the villages, not fi-om the manoi-s ; the i lands of thu various uutuors lie intermixed in the fields. Now lis we can not treat as a mere geogiuphicol fact. Cultivation lof the common fields implies a 8\'stem o( agi-iculturo which 'niuflt in some degree be conimunal. To this we mui>t add
th&t in the thirteenth century rights of pasture are fiir mure ^Koommonly attributed to the men or the community of a rill
^H * SUt. 97 EUk. c. 18. BM. 4 : * And although tba whok* hundred wbwv aneh
^V^IQbbarie* Rcd fdoniwi tn eorannittvd , . . nn by tliu b&U bUIuI^^ . , . ottftrgnd
^H'viih the Muwuritig to Ukc \>»tiy robbod hin dami^te*; yvl nvvvrtlwIoM Ibe
noofvry and eseeatioa ... la bid kgunirt one or a very few peraoo* of Uw Mid
inhkbiUQU, and be and tbey . . . hav« not honrtofon b; Uw had any man or
vajr to bav« an; oontribation ot oi tram tfao ratulae of tb« aaid bUDdrad,'
than to the leiuuitB of a manor. In ■anw! cbms it moM ham been difficolt enough t*> aay to whom belongvd llie ■oil of the truLc land over whirl) these rig^htM W€>n^ otrreiBciiL If a mamat ouincide^ with the vill. there is do diHiculty; the lord of tW manor owns the woHtc' land ; and again if therv is a rshief ooincidenl with the vill, thni chr lard of iIm duaf laaaai the wwtv, uT 8uch ports uf it •» hare not btcn ■llptU^ km wveralty to the rariooB sab-mAnoni, But. as we kav* mm, thcMc fwicff do onl exhnitAt nil povfilrilitii-* or all rnatiliwi Then.' might be four or Ave uuuion in thv vill bctwnon winah thero wa« no nulK>niination : tmch lord might tncm hu tiUa mf to the king ulcinf; n ditferi'nt ffudal thrvwL UV nuiy takr an inslnncv iho vill of (iomlingay in Cambridgwhtrv, noC MUM it u abnonnally elaborate, but beiwM it NftMo's attontiun'. 'The whoU* toviuhiji {vUlttta tuit nXb) Gamlinga)' hw twelve Kure Acrrs of oumoMm y— lum hi'Ath.' According to the jiimnt iht> whok townihlp mb King Sttfphvu by way of dttcheat, and out of H be thnc met). iiniiK-ly the prvdooMur of John Avaod, tb« fn^ decvMor of Williatu .if L«iceit«r. and tlw pfedcwuf of Hi of Bttbiugton. bi>Midi^ which he gave a oertuo twmiiiwil hit stewanl \Vnlk«-lin nhirh hn<4 now conic to lb« abbot Sawtrey. John AvencI has a well-marked maniir with ctutonmry tenant* and many freehulden, who hare oiWr' hujderi imder them. The nme iit tmr of Hugh iif nilw'mMirl William of Leiomter Aold hiH part lo Waltw of Mcrioii, «b4 it baa gone to endow hi« hotua of acholan at Otibcd; tWf hare deniMDe bind and many freehold lenaola. All ihem tenomentn are acccmiit<<d to belong U> tb« bmottr nf Bovk^v , but there in yet another tenenwtit with a hide of la«d wlodi Richard uf Edeoaore hukh of the hoouiir of 01oaeMt■r^ Wh* >* then owiicil thiMt,* twelee aeon acna of fiMMiw and bMlb over which 'the whole tCfwnahtp of Oamhngtf* had f^|bto of common 1 Perhaps thia qneatioo bM Dov«r yet be«i ridered by the kirda or tenant* of Oamlingay. So bai certain land is regarded an di>ouied fur I'vor to bo paMm* and ao hmg as ereiy one kDOwa how many baaato be bb^ turn out on it, the iiui-Ktion as to thr owni^nhip of tb« *al doui not arise. We muAt not be quick to «ay thai in lb* |w«
> Airteoltaral OtmmiM^fx (iraad. Omwtj), p. M < B.H.U.
Jfai
CH. HI. § 7.] The Manor and The Township. 619
the township of Gamlingay has owned this soil ; far truer may it be to say that the idea of ownership had never been applied to it. But we are now dealing with the thirteenth centuiy, and our present point must be that in Gamlingay we see no court, no assembly, capable of dealing with this waste. We do not see it in our documents. Shall we say that none the less it must be there ?
Before we give an affirmative answer we ought to observe intercom-
, , . moning
that there were many cases in which two, three, or more villa villa, intercomraoned. Of such cases we read much in the thirteenth century, but they grow ever rarer as time goes on'. Some- times the boundaries of vills were uncertain ; between lay a waste over which the cattle roamed indiscriminately and no one could fix the spot where the territory of one vill left off and that of another began I Now, when we see this, we do not feel compelled to suppose that there was some permanent ' intervillar ' organization, some assembly in which the several townships met each other to regulate the affairs of the common. So when there are several manors in one vill; the rights of the various lords in ' the common of the vill ' seem regarded as having been determined once for all by the terms of their feofl'mentH, and, if there is to be any new regulation of them, tliis is iU'coiiiplislu'd, not by the action of any court or assembly, oil] but hy a tit-aty. Eacli Uuti can repre.sent himself and his villi'ins; his i'ivi_'lii»l(lers give tht'ir consent. Such treaties were n«tt unknown. Tiie Abbot nf Malniesburv wished to enclose jKirt uf a great imjor called Corsgrave. Twelve deeds were IK-Cf'ssai}" t'l'V this ])urp()se. \^\ one the lonl of Foxley 'on bchalt ut'hiiiiselt' and all his men nf servile cunditifni' released his iji^'hl of eiininiun ; hy the nthers various freehold tenants of Fo\li-y released their rights^ As to the customary coni-se of agriciiltine, that needs no reguiati()n ; it maintains itself,
I Not<> li'.ok. pi. 174. 3:i(i, (i'2H. HHli. ;)71, 17:il; Vear Book, Eilw. II. f. 170, IMS, ;i] 1. :iL'7, wMi. In Sonit'i-sliain tho Hp of Ely had a Rreat wood of 300 acres in which thv iiii.ii uf the towushiprf i»f \Vnrbo>w, Woodhurat, Waldhuret, St Ives, N('t'iliii;;\vu!lli aii'l llnlywrll, all of which belonj^ed to the ahbot of Hatuflcy, had comdiiin toKf-th'T with llit- iii.;i] of the bishop's lari^e soke of HoiiierHhaiu ; It. 11. ii. I'lli.") ; Cart. Hums. i. -iH'.i. See also Domesday Book and Ucyond, 'Ai)!>.
- Nnti.- lluoii, 1)1. 171. Tlif jiiiois can not lull the limits of Billin^iiay and North Kyiin in Linciihir-liire, fur thtTo are luarshoH in which the men of these two viUs iiitfrcuiiiiiKin.
■' llvt^, Malniusb. ii. l.'ili -lt3."i. For auothcr instance Bee Ibid. ii. 185.
uih*
MMCU
vO.
rij^to.
urn l42 t>i^^
Ml il will muintatii iUwIf in the vigbtcvulh oeolary wben tbc niAnorUI oourts are perishing. As Tct men (io not vnh te breftk through it What could ime do with uob'b filrijM of land if one M>t the* cuviom as n«ujE^t f Thtj Uo pro6t)eaB*.
But that the lowiuihip had find nepdvtl littlo urgnuizutiou wl* fthall tx.'ttvr undvnitAiul if wv tvSum ciue in which a vill and n mnnor aro ooiDcid«iit. Hmw at firat sigfat we may Ho<<ni to soo an effective organialioB; tfe Till ia no mere administrative district ; the towwiiip m a 'village cumoiUDity.' Certainly Lht> tc wo; thv tovnilap u n conifniimt, n commHiiitas. and thin village oommoiuty ba* a raoot, a cf>urt find uM'inbly of ita own ; the oo^^1lw■^lta aiBa* is the cvmmunita* faUxmoU. Still under the Inflaeaet of medKB theorit-M about 'archaic' facta wo might t'xaggt*mli* tha aawoal of communalism or oven d self^vomiDrtit whwh axMhi in thi- liiwnehip.
Thix will bocoine appan^nt if wo examioa the right* thai arc known i» rights of nmimun. Hen if anywhtn wa iMgkl lo WDB the communaliun of the townahip at ita tlnaifwl housea anil ambli< acn», it may be nid. an by Ihb tfaot in aavoralty, though a timn'M ownrnrhip of hU anUe im subject to ihv rights of thu Uiwiiship which an* luprwMHl in the programme of agriculture, the twi>MXMiraQ qratein. cr i^ tbrott-oonna ayateni , but ihn waate land with iu paaturvi aail woodti and watem belongs lo the lowttthip ae ■ whole. IW; it may bt; aiided, a l<>nj haa now ananed to hinHclf tlw fi^ta or many of the righta of the nHago corporation ; legal tbeovy mippoata thai the waate behrngs bi him ; bal Uhao the of the townahip, frea mnd unfinee, still c^^ thia common and n''gnla(o ita cnjoymMiL in tbcir maoi. the lord, who ia an aftetgrowih, tha townahip landowning community.
But doe* otir eridcoee point this way I Let oa tak* iW cane of tht* fnH;holdi>n>, whirh «hi>ul(| ho nimparatiTrly aadb- turbed by the effectn of M:ignunii] dominion. Are Ukst ng^ ' of common * in any wn'tc commaoal righta 1 Of ia juat thiH element of oommunity about thai: tlwy
* la iMHimI ■ lUB eaaU ool a** •• k *!# Is Ik* BiAlb «l m «p» wiihuBl woMiin Ihf Mri^ ei Ui Miflbkaan. Oa^ m a ma mmtattm aa ttti^ boiMuM hy ft Oftrt-lrMk.
*CH. ui.§7.] The Manor and Tfie TowmJiip, 621
^
righte to bti oiijoycd in common. A light of cominun U a right to oqjoy something along with someone elwe, Ui tuni out one's beasts on a pa»tuiv wh«re the beasts of the lord and of one's fellow-tenants feed, to take sticks from a wood, turf from a moor, fish fr*mi a pond in which others are entitled to do similar acta. But, for all this, the right may be an individual's veral right, a right that he has acquired by a several title, a right that he can enforce against hia fellow-commonera, a right that he without aid from his fellow -commoners can enforce against strangers, a right over which hia fellow -commoners have little or uo control.
Such rojilly arw the freeholder's rights. At a later time our Tbefw- laM' definitely laiil down the rule that the freehold tenant of a n^iu. manor is entitled to 'common appendant.' which is defined as *the right which every freehold tenant of a manor potweases, tn depasture his commonable cattle, levant and couchant on freehold tenement anciently arable, in the wastes of the anor'.' To entitle himself to this right, a man merely has to that he is a freehold tenant of the manor ; he ha» nob show that this right has been granted by the lord to him to his predecessors, nor has he to show that he has gained by lung-continued use. With common appendant is con- ted 'common appurtenant.* If a man claims some right h exceeds or swerves from the definition of common ap- lant, then he must make a title to it by grant or pre- L scription. Such is the case, for example, if he would tuni ^fttmto the waste beasts that are not commonable, donkeys, goats. ^^Swine or geese, if he would turn onto the wajito more oxen j or horses than are 'levant and couchant' on his tuncmunt, or ! if he wonld claim common in respect of land that is not I 'ancient arable.' Now, it has, so wo think, been suflficiently BU] shown that the terms in which this ilLstinctiou i» exprtnised , are pretty modem; an accurate discnmination between 'ap- ^fcj)endnncy' and 'appurtenancy ' belongs mthcr to Littleton's ^■day than to Bracton's'. Also it must be confessed that the ^Btubstuuee of the distinction hardly iip[K'nrs in Bracton's text. His doctrine is that these rights of common are Vura i» jv rdiena anil are to be gained either by grant or by advorBe user, though he seems to admit a class of casus, not vmy easily
> Wi]liam», RigbU of Coninioa, p. 81.
' SuattoD, Comoioiu and Catmnon Piatda, oli. 3.
622 Jurisflictian and Communai Jffitk
flefinabit!. iu which it M iinnnnn—ij Ibr • eUimani \n piwv uuy such title*. On the whole, bnvpovcr. a oompfthKio ohartov of feofTmoni with moaorin] mirvojra will bno|C u* the coocluttion that in NubstiLncc thr fhatinetioB baMvi pendancy aud appurtcQAitcy. between rigbu of comnfeon vUdi rvqiiiro nfipcilic dovrnption and n^l« of ootunHMi which wia whenever a tenoment is given, unleai they be rXcJodMi hf DL-gativo worda, ia wry old'. . n«^ But, be this as it may, the fr«efaoldtr'« right of rtmtmtm h ^i ^aaStka hia aoveral right, aa much bin several right aa k hia
i^Mdij. "^ ^^^ hotiw. Hia 'aeiain' of this ri^ht ii fnllr pnstceied bjr the king's court, protoetvd by * aitnibir action to that which gnarda bin aeiain of his honae ; the aMimui of novel dtMBMB h snppU'tncntcd by an avizo nf commim. It mwom fiurly efaar that Uforo the SUitatv of Morton <1330) any nn|[le fimhilfci who had a right of ouramon could prevent his Inrd frw i^ tnicting &vm that right any part of the land ovor which il hftd been cxerdaftble'. Thai etatnU gave the hail a right Id
t Bneton. t sao, SSOb; Note Book. pi. Ml. Bnifeaa mj%i^i\t ^^ mam nil tb«r« us nro aalglibean who hold of Um mmm \mntty Mkl iIh Ma* (K UMa ihetv to eonaMn Iie4f ^hmm, w wlhw eel wtmmm^ kai a i^ wblch ha pnfin to adl HeMM«. vieimat*, mOeOr ■imiliii tfM* ■01 *■• tha if in th« Mm* till Umit* st* t«o frtoboU ImmiIi UU af ite ^m iBkOiw tb«r» will im ihia 'vtdiatfi-iiitbC batvMQ Ihcai. for if the M* l^iHMMi ar« of th« Miu nMour ibru the; inuat t» of th* mom Wfwiy kad (W ■■» [gnat] Im, nnkM mdMd th«« U no bMoaj' or bMM«r fa dM •»• m aIL Ate MrisUr anniilniit It vUl omu that » erMheU maai mT a -nMrr vU) rfi^i havt ootnawa ot *TldBag«-ri|^t* onr uy mtatm ol hto larl ihai Uw m ik» MBw vfU. ud thai Uw lord will hati a dnOar ligbl em hk (be lord uwl bmant will bo nKighboon boldiof of th* «ai iboaMh thfj cUQil on diflcnati Jujwi «l lh« hmhl Mali, iht r«U tiiai In aay wwl mm iIh fretholdv Iim ■ n«lu to tva m* 111* lofd'i wuto vliboiti laovteff gnak or fiii*wt|iitoii. Il vay W howmr, wlutlMr Br»oton mrant to iMieh m ibu. Tha mm UmU ^ t^ to vivw M<ni* to btT« bwa that of two pom of th* mbm tHWM «Mh «d whoB bM ■ tssnor Id on« and th« mid* vUL Bat ba 4ei<riiM to aol ^i^y fU^
< ViB<«fadoa. Villalwui. «6ft-S7S.
« It to Irat thai tha oftoo-diwwMrd om* Flla. Abe C^^^ «S |mw ^aarf b Bvaetoo'a Note Book, pt 1«7A|. a»y kPoA Uw «4b« wv*. hM th> '-j- ^ ^ tba Siatata, of firadtoa'a torn, o( tha ao|« fa Xato kok. pi. ia«l. Md «to loOowtBi aiWaai froa a ptoa nrit of IStt. art bi h«««r U w1m« to baa ^li ■Da into qal habant iiia«Ma tonaa rt ■oa|iimal ^ilaii ^ mbb ^ irf paaluia pro illu qui habaot saam atopUaai kaiaa aas aaA^Mlur Nl ai pntaraat eotamuData.' This to lD«a4 oa a rail wkkb waa bsMMl^ ■■■ta^ M Coram !!«*■ Roll. Uan. Ul. K«. ]«. aL ■!. Il Mi^ to ba a Mto mA If inaileM ia ajrra of a naitor ibal nftkm nfatm.
CH. III. §7.] The Manor and The Tovmship. 623
' approve,' that is, to make his profit of S and hence to enclose, to subtract, the waste land, provided that he left sufficient pasture for the commoners. How did matters stand before the statute ? The individual freeholder addresses his lord and his fellows : — ' True it is that the waste ia superabundant ; true that I am only entitled to turn out four oxen on it ; true that if half of it were enclosed I should be none the worse off; true that all of you wish the enclosure made ; true that I am selfish ; — nevertheless I defy you to enclose one square yard ; I defy you severally ; I defy you jointly ; you may meet in your court ; you may pass what resolutions you please ; I shall contemn them ; for I have a right to put my beasts on this land and on every part of it ; the law gives me this right and the king protects it.' This is not communalism ; it is individualism in excelsis.
Over the freeholder the manorial court has little power ; iveedom for him it is a court of law (though very generally he can freeholder, evade its action and go straight to the king's court), but it is hardly a governmental assembly. He is very free of custom, he is very tree of by-laws. The following brief record tells us much : — In 1223 Richard of Beseville and Joan his wife brought an assize of novel disseisin against Peter of Goldington and 13' thirty-six others fur land in Ravcnsthorpe. 'And all of them come and coTiless that the tenement is the free tenement of Hiehai'd ami .loan, but they [Richard and Joan] were not able to cultivate that tenement that vcar, for in that year the field lay t'ulluw, and because contrary to the custom of the vill the plaintifTs cultivatt,'!! that tenement, these defendants pastured the corn when it had sprouted.' Richard and J<ian are not at pains to deny thi- custom; tliey abide the jud,t,nnent of the court. 'And therefore it is considered that the said Richard and .loan remain in tlu'ir seisin jvnil that Peter and the others l)i.' ill nH-rc\'.' We would willin^'^Iy know more of this case; liuL ou till- lace u\' it w>- seem to read that a fi'ceholdcr can not lir rompelted bv nu've <'ustniii to allow his neighbours to jtaslnre tli-'ir beast-- on his land, and that, to say the IciLst, 'ihi'ri' caniioi lir a custom for inhabitants as such to have a pi'ntil (/ i-rinnlre in the soil ot" another^.' To justify his act eaeii ot' ilic di!riidaiu> slmuld have prescribed for a right of
■ Uxfurd Hdj^li-li l>iutioruiry. - Note Book, pi. \^G1.
'■ li'it-'ii'ini'd C<(.--(', il i,\j, Hf[i, "I'.i b.
624 Jwitdk
'Em
tVrS
pafltnn*. ami prt^partd binnelf to prore that he nod hi*
deoenuni hod oiijoy«d toch right kioM out of miDd. But u require this ts to deny the title of the comniumtjr, to mak* each mcinVr of it pU<o<l and prove hi» uwu title ; wh*t '» aon; it ttt Ui rt'{|uirt) of him a ditticult task. And no with the forM uf by-lawn; what wi.* read will luake ua think that freeholder thvy am weak. In tho uiunc of a ctulon ur by the 'coiiiinunity' of a Noetinghauahiro lowuthip tun beMta onto Iho land whi-n* the pMHQ hwi groim a enp; ihmf an told that thta is numifoMly wrongful and not to be aop- portoil by any by-law ; tht-y miui pajT duBagea'. Qamm maaU power of rcgtiluiing thu HghtM of oomman boloDfiB|( to iba fiT«holdeni we may allow lo the manorial court and ita by*la«i^ but Ui nil mioiniag it wa« Mnull*. Camama- Hut the caoee of freeholders holdinj( land within a maiMr < Ilia thuy nr» important, and by no mnuu iincummon, arv (it tM; be eaid) uot sufficiently numeruu* to diflorb the rvt^ <j\ oommanaliitni. Tbo Creeboldcr, though be is in the tow^^y^ w hardly of the towunhip ; he doea not ahare all the eommBil burdens ; be ia uot 'al scot and lot * with the Uiwnafaip*. fha * oommunity of the vitl ' is generally a body of men irbi— the lawyera call serfit, who have been redticed lu aomeUung tlm ii very like Nerfa^' by thr nelion of their kirda. and ihtmt m^ who must be trmtod as the uomtal nhart'holdef* ia the vilt^ga, fonn a commiinicy, a oimmune, tuniethJng that sa^t mA unfairly be called a ctupuration. viUatat Cortiunly ther« ia> truth in thiiL Becwoea the
mefflbem of the village community which is abo a nttciB community there is a Strang bund of ecoDocnic Not only do they ooop(.>rale wbeu ibi-y an* tilln demesne, bnt in all prubability there ii ooopef)^»'«>
> We fvi m aHOBBi oT thU out in our flnt «iWaa, voL L * Sm rtu. AbrUt, Am4,. pL 41S, m iiUiMilf ill-fftalid o( Bdwwd I.'f liaw. Appftfialljr bowvnr a beahaliw
byUv to whiob tm hmi mil Iiil iiiiiiliag IImI liiailiiil^
h«luaftri«klof«ottiB8ittrf ihoaUk* ilU ay. mm ^m \ L 18, lit itna. rL IS), whtfi U b umW m4 4mbtd itel bf bouiul li> % bjr-law b> iha dlMt llwl so emt tknoU tarn *■* aotrtiia day.
' TUb poiol U bmuht oat bj mbm oI tha Cart. BaBM^ «b«» U U •podilljr aotod «i ohbi wfaoUr or fa part ' eam TiUaU.*
1. ui.§7.] Tiie Manoi' and Tike Township, 625
ilture of their owu holdiDgs, Very Heldum will the peasant be able to plough hi:* strips without the aid of his neighbours ; he will not have oxen enough'. In some inaDors a tenant is bound by the express ttirms of his tenure ha entered upon the court rolls to discharge, not only the duties which he will owe to the
trd. but also the duties which he will owe to his neighbours*; id we may 6nd a mau forfeiting a tenement because he will jither dwell in it uor cultivate it uor ' do any ueighbourlinesb his neighbours' : ' that is to say, he will take no share in the communal duties. In accordance with this idea we find that the lord treats the community of the vill as an entity that has dutiL-s towards him. It i^ constantly falling into his mercy for breach of duty; it is amerced for coming late to court, for committing waste, for damaging hi:* crops, for not cleansing the |B] pond, for not selling him poultry, for not having a common ^pinder. for not repairing the sheepfold, the mill, the smithy, ^Mhen commanded to do so*. All the tenants of the vill owe one ^niark for an axletreo delivered to them and lost by their ^defeult'. The lord sells the herbage of his land to the tenanbi ^^P the vill. he teases the demesne land to them as a body. The ^community contracts with him and with others. The com- munity of the vill of Monkton. except T.T. and W.T., is I compelled to pay damages to W. 8. for damage done in hia cum*. On the other hand, Fair John has broken a co%'euaut with the community of the vill of Wolviston by nut paying the jihephcnl his salary, to the damage of the community, 6«. 8rf.\ 11 manner of commauds are given to the community, and the lunity itself makes all manner of by-laws (bt/rlawea, »)■. To mark off" the sphere of the commands issued by the lord or his steward from that of the by-laws made by the
* VmWi ARrioaltarml Coranmnity (Iraiuil. Ouvt?), pp. 43—46. Bnt we can flitd an; ev)deiHt« of oxen that tmlongod to the oommanil;. As to the
boat'ofNewtoD, wblob Masa* mcntloM, doabttow Ui* lord wu tb« nor of it
■ Durluuu naliDotefl. pp. 33, 39, M etc.; — * mJAtaAo aatiqtuuD Onum ll fafliapdo domiuo et violniH qnao incunibuot.' In Lhla paiagraph va tball otM Ihaaa isMwUng rolli, thungh the; belong io fch« fonrtauitb ooDtoij.
* Ibid. pp. M, 6H-— 'DOC aliqua vlcinitai inde fit vieiiiiji'; ' ote inveaira iiiiuin WDi<nt«m qui poteat Um*n viotnilateni.*
* Darham HalmotM, pamim. * IbiiL p. SS. • Ibid. p. SO. ^ Ibid. p. S3.
■ S«a Sbeat, Diet. «. v. bjr-lair. Thfir« Hema do doubt tfaat the woni fryiait townMplaf ; it oftao oooon ia Iba focm tyrlatM.
40
626 Jurisdiction and Communal Affairs, [i
TlMlkw
«BlM»-
comuiunity would be hard : u hard u to nuak off tW if royal ordinanco* from that of porliiunmitaiy statatM' lurd is A cotuitituti(.in«I king, aiid, whru them b bi b« and permnntint legiwIatioD, be loUi wtih iho coudmI Mkd < of his oonrt ; but Ktill over the villeins and the Till«u he ift every inch it king. If the coromoii is to be Wfatwt. lb ooOKDt of the court will bo obuioed; but m miDpie injoa^ lion win eorve to u>\\ all tho tetuuita that they are ooi to keep g«ew in the vill', not to buy beer save at the kird'e hwhw— '. not to sell growing cropa* that they most oSi»r tlwir fidi aad poultry to the lord boron? they look fijr other purchaeai'*, tkat they must find bods for his officon*. thai they mwt mi aaiociate with John Itollis, who hai made loo frwe with hs knifo'. that they must not sue in other court*', that they mwi not throw about mioh words as naiivi or nuiiei, thoogh wmtmi and riutici they assuredly are*. Indeed here liee iJhe poaiibility of all this conimnnal oigaaintioo of the eooDODiy. When the fnH^hnMors are left oat of ^ighu H as a mass of villeinH, or ni any rate as a nnss of mnt their lands by villein tenure. Let one of them rebel the cimiminiity. itw cmrtom^ or it* by-UwM, hin bndy. it nwy W* is safe against imprisonment or exile (exile froin the rill m by DO means nnoammon)* but his land ii at the lonfa and will bo taken from him. the community applauding the punishment^*.
In dealing with freoholdert one amM be eeraftiU they will be off to the king's oourt, whidi shows titUe to restrictive cuHtoniK and by-lawn, which w{|l not open its to tho community ss such, but will oiake aecti iiirfirirtesi aaerter of communal rights anawer why be
* 8m t.f. Dorhun HalowtMi, vIm** Iwa tormwiaa mt nniBihua iMMtilibaa tjUm,*
I Dsriam BalmotM, p. iS. * lUL f, U.
• im.f^m,4». Mbia. PL aft. ' iw4. ^
• nU. f^U,*0. TM KMtt b«M JUAt kMM pWMl to w
BisnioasJ i|riBM Iki bm of this ««ei b faaMit,
■■Tlwa mm mmj chm oa Iks HKifiwI islb Ii
'm»ov«d tnm Um vUL*
>' Pwhua Balnote. p. ««: 0. K !• nitni \
wwaw Um enpi thsl mn gnnrUw as It wMlMmt lU konl'*
Ift* hb nalchhoBn OS |Mi» c( lo^iW rib> kad.
CB. Ill, § 7.] 7%e Manor and The Towtiship. 627
j another man's soil or impounded another man's cattle. Of
oouree there can be no talk of enforcing against freeholders the
j mere oommandB of the lord, even though they be backed by
the common absent of the township, at all eveutti when such
I commands have nothing to do with the tenement. The ftee-
I holder may sell fieh and poultry to whom he pleases; he may
I associate with John Lollis if he pleases, provided that, John be
^B lawful man ; it will be difKcult to make him take his com to
^^the common mill', impossible to moke him lend the steward
I his bed. But further, as we have already seen, il will be by no
means easy to diminish his right of pasture ur to prevent him
I from cultivating his land when and how he chooses if he can do
^^this without trespass. When injuuctioDs are laid upon the vill,
^Bwhen by-laws are made for the vill, the freeholders must be
^ treated as exceptions. It is ordained that no tenant of the vill
I of Ferry Hill shall put horses in the oxen's pasture, save the
four iiberi, each of whom may put there the horse on which he
' rides'. All the tenants of the same vill, except the four tiberi,
oro amerced because they refused to have a commou reaper
||17] appointed for them by the lord's officer". The mill fell into
disrepair. In 1366 order was given to distrain the free tenants
to repair it, while all the other t«nantii were ordered to repair
it by the next court day. In 1368 the freeholders, despite alt
orders for distraining them, had not done their share of the
work ; the customary tenants had done their8\ But of the
exceptional position of the freeholders we have said enough;
over the customary tenants, especially if they are unfree men,
the village court has great power, for it is the lord's court. The
tlord can ti-oat them as a community because he can treat them pe villeins. I Still it would be easy for ns to overentimate the com- Coouuiui- mnnaJisin that there is in the vill, even when there ore no mOMUn freeholders to be considered. In the first place, we must notice '**WU*y* that mere collective liability for transgrewions implies tittle comumnaHsm, little i)c>rroanent oi^ganization, while it certainly does not imply, though it does not exclude, the idea uf corporate unity. If the vill can be fined and unierce<l for neglect of duties owed to the state or to the lord, so also the county and
' SoU} Book. pi. 161: 'NoU qaod Ulwr homo non taottur Mqol moleatUniim domini iini uiu gmtia velit.'
* Dtuhua HalmotM, p. 69. ■ Ihid, p. 109. • Ibid. pp. 6J, 78. 73.
40—2
628 Jurudietion and Oommunai Jlffixin, [\
thv hundred cau be flood And unorecd for &lae Jbr murdt-nt, for nibbcriojt; but yvt it hM no DO propiTty. Thu couulj cuniintmity hu do propartj; lb» handred commanity hu oo property. Su Ukewiae th« towmfciy normnlly h(i» no property. When a judgment ibr dmyigM^ fiae or amercumcut U jpvuu against it, thin ' it ' ai ooop baooMM • mere moK of individuals who arc jointly and wrendly Uftbla lor the whole amount, while, o^ between tfaemadlTea. their ptopcr shares are soltlMl by the ityfitero of comrocosanibto IcoeMoalfti nil virgntors pay equally, all cottagcre equally, ntn. KvDD when tbo manor is fanned by the viUeiiH^ ■• b
JUJ^** Komrtitnos tho oone, wi< may nrerBtsto the degree of ooaH»> naliam that there is in the arrangenont. *hinnitiiiiM A« Ing Icta ouc of his nuuMra to the mm of that manor' ; other lonlx do the Mune. Tbo leaae in eodi ft generally U^ have been a luaao at will ; but theto may faav* Wa flomo placoe with oo protrnaions to be called bonMi|^ wherv the rotm of tlic vill fiumed the rill in &<«. Stiiii«tlm«a tlio \tmm^]^i if each wv muat coll it, nocma to havo oompnml all the euuw— of rereoae that the lord had in tho mmiort wamftl&tum waam «/ these were exa-pt4<d out of it. Thtu the Prior at>d CaaTcbt nf Woroeator have a manor at Hallow; 'tiio oourt' wi&Jk iW ftpportenaneea, and two eanmUea of tho diwiani have becA Irt to the villeinn nt a com rent tof^ther with the mfsadowv aed GMualttea and herioUi and the viUeiiaige', tiwqgh the uimiwI still retains to its hand « bam, a moor. aoiM BMiknr aad mmt arable Und. But we muat not jump lo the roorlnainn iLail iW mttani are canning uo the cultiratioa of ibo Atmmmm had m ' a joint »tock affair * by n>e«n» of beaata and jiiipkuiiMla wbnh belong to them in rommon or to a oorpuration of which Ikj are the membenL At Hallow tho arable part of the 4aMMHBr which han been handed over to them eeeaM to be htok«« «p into phyMcully distinct aharea, eaefa of which ia hahl hv ea individual et/Zaniu at a seTeml rvat. The npabot of Lh« arrangement m^ems to be thia: — the viUi^vnt inelaail «if k^ phiced under a bAili£r of the kmTB ehowrfng. are giv«B Ihe q^ to elect their own Jirmariiu. and to him each pay« th« mbA
' MmIoi. rifiaa Bofyl. U-M.
> WliliiHii ligriii. p. 47ft: IMTM iW donklttlM euiB pnli« M ■ont TilUaii wl flmmi '
I. in.§7.] 7%e Manor and The Toimmhip, 629
H^c
Bnif
due from his ancient villein tenement and alao the rent due in respect of any port of the quondam demesne that he has token, and out of these rents, the profits of the court, and such ^camialties as heriots, the elected farmer must pay ' the farnt ' of le manor*. The lord obtains the joint and several guarantees (if wc may use so definite a term) of all his tenants for the whole ' fiarm.' If the farmer can not pay the rent, the lord can attack all or any of the tenants; if uu the contrary the farmer iKcasionally makes more than the ' farm,' very likely he keeps tile uurpluii tu himself or poasibly it is expended in festivity; if tt aorplus becomes normal, then the rents of the inHividual tenants will perhaps be reduced. But the Inrd^, we may be sure, took good care that these venturcs should not be vciy jrofi table.
But, to return to the usual case tn which there is no farming,
to Bee that the rights given by the manorial custom are, at
Jcast for the more part, several rights given to individuals.
le tenant in villeinage holds his honsc and hia virgate by a
'title that is in no sense communal, and tu this tenement arc
annexed rights of pasture, customary rights of pasture; he
enjoys tbem, not because he is an inhnbiUmt of the vill, but
because they are annexed as appurtenances to the t4!nemcnt
^^bat he holds. He transmits an inheritance to his heir as the
^Keoholder does, nor, so far as wc can learn, does custom give
^■he court much power to regulate these rights. When a
^"statemont of them is made and enrolled, it generally profeasea
to be, not a new ordinance, but an ancient custom, and the
function of the by-laws that are made is, at least in theory,
rather that of conftnning and sanctiuiiiug old, than that of
introducing new rules, though new nile» can be made from
time to time about minor matters.
Looking at the vill from the outfdde, contrasting it with other vills, men naturally use phrases which seem to attribute rights to the community as a whole. The towDship of Sutton, or the community of the vill of Norton, is said to pastnre its or their cattle (nflen enough the verb that follows viUata is in the plural number) over a particular moor. But just so a sheriff's bailiff will be charged by jurors with taking the beasts of the vill of Weston. The township as a community has no beasts; ^e beasts that have been taken belonged in severalty to
' 8m the lorrey of Hallow ; on p. 49 b the /mariiu i« raantkiaed.
aiklUiri«l cfiwteai
MvenU
rij:>ibi uot rotnmoiuU rigltu-
tlw tOWD-
•ppav wbon
exaiulned.
certain individual mtm'. Eren to with the right* of pMttiii*(4 on analysis the^ u« foand to be the rights <d euteio inriinHil men ; they are exercised in common, but they ira wrenil nglAa CisowMr- Lully, when, an may aometimtt ha|^>en. ths uwilMsfctp ti a eorponu tnict of land seems to bo attributed to a oommnnity, wo haw
fiopmij.
iraUoa.
of Ifa.
•til] to &CO that difficalt qaeetion which hiu of late baaa exerciaing iho tiiindu of continental hutoriana: — Have V» before us ii corporaui unit or have we merely « |iwp ^ co-owners' T England afiurds but few materials foraiiHMWl* thin important question, for anything thai even by a atnidl language could be called a oocnmunal ownenhip of land, if had ever existed, had become rare and anomalous bdat« Ii stream of accurate documents begins to flow. Bat whal «e • will tend to make ns believe that it was rather as a gravp af coKiwniug iudividualfl than aw a curptiratton that the membi of the vill thought of themselvva when they had a applying e-ithtr the nntt idea or the other.
The manner in which thu ' quari-oorpocatoncaa ' township was dissolved at the touch of kw may be by a flt«>ry from Dunstable Priocy. In IM8 the Prior •0 Mttse of no%'el dianiiin agshift stvcDtMO dtftodMlt oeminfr Innd at Toddingtnn. Sono of tbe thenwclvcfl the villeins of John Pieivcre; oUista, who fre^lde(«, sought to justify what they had done. the Prior pleaded that the lands in questian. whirh waeoi to have eonaisted of many disoonnvcted stripa, had bean in ike wmn vS Ihe men of the township of Toddiiiigtaa, aad that tlwy by their uniuumouH will and s«wnt enfiwAd his Prior Simon, to hold to him and his saeosaan ftr juhirs emlorsed this statements adding that all the had any right in the unid land were ooiigyvfated in a court held at Toddingtoa, and with cna land (o Prior Simon and hb suewoia. aft a
> E. R. U. B07: *banM 4* Tt^JU vniatam U BIUa. gnvaado Oka vOUlaai pv plans
> Ulwi U Ibi kgsl aatara of thi oU I* II a •nap tt M-cnni«**P !■ tl an ^HUkia ralMd hj Biwlir (Vetbnwht oal ppu IHfl.) has «f IsM bsai maaj tmmrmk. siiiaiUflii Willi; Bm^m, UMmOmm, L
I*
CH. m. § 7.] The Manor and The T&umtkip. 681
a year payable to the said men of ToddingttHi. Friw Simon (the jorois say) held the land and paid the rmt; the preeeni Prior for several yeats held the land and paid the rent; the defendants have diaposeeased him*. The Prior reoorered his seisin. Now this was a posseasory action ; the Prior had only to prove (and be did prove) bis seisin and disseinn ; the sound- ness of his title was not in qnesticui. Still his title was a feofiment by the men of the township made in the coort of Toddington. But then we also learn that when this feoffment was made the lord of Toddington, John Peivere» was an infiuit in ward to the queen. The men of Toddington who were defendants in the assize relied on this ; their case was that the Prior obtained the land, not from them, but from the queen's bailiff. Then the Priinr by expending a oonsiderable sum obtained from John Peivere a confirmation of the land *into ii] which we hud entry by the community of the men of Tod- dington/ and for the future the Prior ' by the attornment of the men of Toddington * paid the rent of six pence, not to them, but to their lord*. We see therefore the men of ToddingUm making a feoffment, the Prior dealing with them as capable of making a feoffment, of receiving rent, and then we aee this title melting away before the claims of the lord. But further, we sec the defendants endeavouring to avoid a feoffment made by the commuuity in its court, and one of the reasons that they urge is this : — When the feoffment was made, some of us were under age. Such a plea gives us an instructive glimpse into their minds. The men of Toddington suppose that they have land ; they ignore their lord. Let us do the same ; let us suppose that John Peivere 'a rights have been gained by modern usurpations. What then, we may ask, is the men of Toddiugton's theory of their own title ? That they form a corporation ? That ' the community ' in its court can alienate its land ? No, but that they hold this land as co-owners, and that unless every tenant is of fiill age and joins in the act there can be no alienation'.
^ Ann. DuQstap. 37U.
» Ibid. 3<«.
* See alno Mados, Firma Burgi, 41. Under Edward III. it wms allied that the community of the viU of Tetaworth, in Oxfordshire, had giren a hoaee and garden to the chnrch of that Till ; bnt the biahop of Lincoln proved that Ifaii was nntnie ; he and his predecesBorB had always been seised of the preaaim.
4fl wIlO ■"'V^^
do not jrH^I
However, except by way of mro axeaptioa, ihe mm cf tfe
vill du not hold any property m jotnl triuLnt« or ifnawlt a common. Enrh of them hm hu houMC bin vir;g»l« or c*uA ; each of them hiu ur mny have certain righu uf paMni^ 4C turbary, of tishiDg or the like in the lord'a WMrt«« or wmtoni but that is all. The conwqapncc in that lb«y rmrely bcforp the courta as co-plaintiffs. Thix if not due Vn speculative rloctrino about the way in which corpi>rmlinm to ni& it ia not due to the rule thai an uniooarpanMd gn«p of penoos can not nue under a general name^ At pMMHi there in do each rule. Aa we iball aee below wlwa tke borougha cumo before ua, the ooorta era ready Co lielea •• oomplainta preferred in the natne of ckueea of ni«a wlio Bomo common intereat to aaaert; the lawym do wA domaiid the appointment of an attorney ander • 'The citixena' of A, 'the bofyaoa' of Bean ane; tbrnr or their bailifia attend the court on their behalf; and eo ' the men * of C — which im a mere rural toimahip, in* whidi ie ^< n hundred — cnn «ue and be sued, their bailiff or tbeir with four men will n'pmient them. They can aae and be under a gemml name, if there is anythii^ for them to im bo sued about But than th» rarely happena. Thegt keU ■■ landfi, they own no franohiMs, they, taken aa a graapt baw ■• right! to asBert or to defend. The great exneptiiin t<i thia r«l> ifl that the practiee of aaaearing taxea and impomig ftaea mftm oommunitiea may give rights to a ooauamty. Tlrae we aaf read how certain named men of the haralel of Bordoadao had la answer in Uie Kxchequer (o 'the men of the vill €^ Hormeod ' fur not (Contributing to a fiftMmlh ; U question whether thiH hamlet should oonlribute amount aatesaed on Little Hormmd or lo the aaaottni on Braagfaiog*. Such diipntea the eiehoqui had to decide, and in so doing it uumMwd tkal'tWwa'al a Till were sufficiently repreeonted by a few of ihdr mnJbm. So also one towniJiip in the fena w- :ta aeighboiir Ikra
contribution towards the coat of auui.:~ pi and tvfMnqg tfca
sewera, and would base ita chum oo tha eoilOM and oaa ef ibe manh'. But within the sphere of privwte kw «• saMas
> nnas Ba<sl. no.
* AMbt IloU. Linmln. Ka 481 (f7 Bm. UL)t 'J. M. m C, D^ fm mm loto eoninitniuto •illaiM At tUtfiaffmrn tfUhnat m was & JL tf
en. m. § 7.] The Manor and The Taumship. 633
see the men of the vill joining to bring an action under the general nnmo which covers them. Some exceptional cases may be found upon the plea rulK The tine which divides the men of a vill Irom the burgcgses of a borough is being drawn not by speculative theories but by practical needs. There is great need for actions by * the burgesses,' for the burgesses have valuable franchises to assert, franchises which can hardly be regarded as the sum of the rights of individuals ; but with the mere township it is otherwise. The community of the township is not incapable of suing, but it rarely aue8, for it has nothing ih«S8] to BQo about; it is not incapable of rights, but generally it is
trightleas. No lawyer's theory keeps it out of the courts. What is lacking is not a common seal but common property".
It is difficult to discuss those matters at length without Trushko making some disputable assumptions touching the origin ofbofoi^^
• the English village community ' and its historj' in centuries much earlier than the thirteenth. Some see in those centuriea free communities that are becoming servile, while others see servile com ni unities whose sen-ility is being alleviated. We incline, for reasons that have been elsewhere given, to think that the former is the truer view'. But we do not regard the
lotKD commantt&tem rillae it DooyngtoD, et G. It., J. K. de Bfkcre et toUni eoinniQtiitat«m eiasdem vtUae de plBcito, qaare cam m&n>ci» dc Hi-Jpinghun exaqnkn vel kwMrwari ilobeBt «t soteat per cnnum cuJiudaio time in niKmoDin ia Doningtou et Bykcre aeeoDdiiin coDBueludineni at usam mmnsei qnem earaam pmedioti A. 11. et ^ii et praedictAe communitatea r«p«m« «t stutioere d«b«at ct MiMuit «to.' Tba Deeeau^ of raaioUiatng iiewert. ilQicei, aod wtttBT'ealM mmUtimm gave flM to dabonte tMktka between the freebolden of a Urge dtstriet. Hee, e.g. Selby Caaoher. ii. SS6.
I Actiono by ur a^kiDul ' the tnea ' or plAoen that are not borooghii will be roand ID I'lavit. Alibrev. pp. 3. 9. M, 9i, 95. 18S, 110. The emm oo p. U$ la iaetruotive:- -' The men of Thanel ' complain tbat Uie Abbot nf Si AiiKUfttine'f has wsfltod nodoe aarricM, a.ud they put in their pUoe thirty nanied moo to ■H for them ; their elaim failii and they are adjodged to be in mercy, ' lave the otbar men of Tbanct who took the abbot't part.' Tbnii, after all, the plaintiff! an not all the men o( Thanet, nor do they rcprcaeal all. Thiro on p. 140 there 11 an action of tretpau by the Abbot of FAveraham againet * the alderman and tha whole commnnity of that vill.' Jadgmcnt for dama^ee i* given againat 'all lb* men of Farersbam ' except four named pereona. Hem again, eaoli individiinl ' man ' is ivcquilted or conrictnl on his own merit»> 8ot aleo Uadoi, Ffrma Borgi, (Vi : the king And ' the king'e ra«o of HeadJogtoo ' eomplaiu bi Uw 8iabe<|u«r Utal the Prior of St Frideawide biui wiUibvl'I fnini the eatd me» a euatowary dinner. Ko dooU many othur inataneee miitht be foaad; bat, harioR regard to the number of villa in England and lo the firaqaeooy at aetioiu is whidh the botooghs take pari, lucb initanoea aeem very rare.
■ Don«day Book and lieyond, pp. 231 ff.
634 JurvKliction and Communai AJfain. [bk.
old eommaDity u a laudowning oorpomtion. ^Mt pxrnKMT kind and degree of union which petTnita or Ix^cta a dutinoCMi between what {» uwued by maiiy men vl sinifuli aud vlwt m owned by them ut uniMrti \» not primiiire. nor natim m •■ villagw. It in slowly developed iu our borough*.
I B. The Bonniffh,
Certain vills are more than villa; they are boroogtw ( certain bciniaghs urc more than boroagfaa; they (eivitaUs). The latter of theae two distinctiooa has litUft «r meaniiig in taw. A habit, which seems to ka*e ite rocHa in th« remote history of Qanl, will give the name cWy to nooe bvl a cathedral town*. This usage is in general wdl ub— fuJ. In 1302 the sheriff of Cornwall, returning tbo namaa of fta bui<ge8aes of Lauoceaton ami Rodiitin who ani to appcM' m parliament, says that there are uu citiea in hia faailiiriclt; Ik* aherifi' of Emex and Hertfordshire says the like when W announces the result of cicctious at Colofaeat«r and Heftfaid'. However, Uio usage was uot very rigiil ; Sbrnwsbary is oalled a city in a judicial record of Edward Vn rvign*; at an mHm date Cambridge waa called a city* ; and in Dooaaday Book tks name city is given rather to county towni ihan to catlMidnl towna. But at any rate the dvitoM waa al«» a bmrfmt, Ibo «■■ might be called hurgenim, and the wnuniiMtas ammm otm^ munitoM burffennvm was a nUoln and cvnmmetaf nNbt*.
Now, at least from the early year* of the lUrtMBib omtaiy onwards, the distinction bctwe«n the n»r» ntU and tli* waa a fiuuiliar, if not a vi*r^' prwise, ouilint* nf pobbe la recurring intervals the justicea in cyrv came into tba each rill waa to be repreaonted by tta ravva and Imb- mm, while each city or borough won to lie repraaeotcd by a joiy of twelve. Thus when at a lattf day the Bheri& w«« twldan !■ GWiae evory city aod bonragh to send lUfii'Mgalatiyw In pMfia^ ment, they knew what the cunmiaod meanL If. bowvec. «•
* K. A. PrvMBBB, UMBilUa't ^f^^i. ' I'M). WriH i. llBk ISO.
■ Mados, Fbaa Baigl. ^ >«,
« r\tdL. Ahkmv. f.m,O0.UL Mtk
* Ftnsa Bugl, ehapi. ft
UMb»-
CH. ni. § 8.]
The Boi-ough.
635
l||i
oould bring one of theee aheiiffs to life and croas-queatiou hioi over the definition of a borough, very possibly his answers vonld disappoint us; very possibly we should get little more from hira than — 'This place ia a borough, for it has always been ti^^ted as such ; that place is Dot a borough^ for I can not ij remember its haNing ever sent twelve representatives to meet the justices in their eyrea' If we could induce our sheriff to go behind practice, and tell ua what in his optniou it was that miuic a borough to be a borough, he would probably refer us, not to just one attribute, but to many attributes. In particular, if we talked to him of incorporation or artificial
! personality, unless he were an unusually learned sheriff, he would be puzzled. He would tell us that the boroughs hod franchiaeti (iU>ertate8), some more, some fewer, and he would in the end refuse to consecrate any particular l^ertas or tmy oombinatioD of libertatea as at once the necessary and the sufficient essence of a borough. We have not to write a history of the English boroughs'. The That task, even if accomplished only in outline, would be lung, i^dH**
BO various from first to last have been the fortunes of our ^[ii^ towna. We shall merely attempt to detect the more important
of the legal elements which make a borough something other than a mere rural township and to raise some of those ques- tions which the coming historian must answer. He will, »o we think, consider the borough from two difiereut points of view, and iiidced, were this possible, he should occupy both at the same time ; for the borough ie both organ and organism. On the cue band, we have here a piece of Eugland which is governed in a somewhat peculiar way. To use our mudem terms, there is within it a 'local authority' of a somewhat nnusual type and there is more 'local self-government* here than elsewhere. On the other hand, we have here a community which differa from the other communities of the land in that it
'is attaining the degree and kind of organization which we call corporate, so that, for example, it will bo capable of appearing as on individual landowner among individual landowners, as a angle contractor and as a single wrong-<loer. Neither point of view should bo neglected. In instill recent post varions causes
^bave induced Englishmen to think of the borough much rather
I 8m OroM, Uibtiograiiliy of UDnicipbl Butory (HatvuiI IIulancAl Stodlc*.
686 Juriadidion and Communal Affairs, [bk. h
rroUnti-
BecoHh
M ■ piece of the constilutioaiil inachincrj of the English alato thfto M oil ot:gnniBni and a poreon that han life and propertT Also it miiBt be oonfened thai thruaghuut iIm miik&A agw U* central itowur w«a stronger in England than vlwirbefv aod Ik boroughn served the Btst« lui ita organs and ila izntnnatalft. Still, if we ignore the poculiarl; ooqxmto fharirtar of Ifct hurgun»ic community, we fail to record ooe of tbc grokUtt SMnl and legal achicvemcntA of the middle ages, an ackMmoMol which made possible the coontteiH and Taricigatod onrpanliMt of modem days'.
In order that wc may find a starting-point for whal w have to say of the boroiighN uf the thirtoontii oeotary, w* an compelled to pramiw a nlight akotch uf thu buniuglis of aa older time. That it will be an imaginary slwtch w« MBy admit; but some reaMms have been given elaewhi^v fior ibv belief that it in founded tipon fitct, and may be n>ttgfaly teiM «f those ttiwua which xet au example for otiien*.
For at least s oeutary and a half bcfors tbo Nomsa Conquest, English law has known th« bonngfa a* different fmiii the ordinary Uim or vill. Th« tjrpioal has been (i) the hnrh. (\\) the port, and (iii) Ibc mooi-atav «f ft ahire*. <i) It hna been a fiutness and pboe of rvftigv whoa «arth-works have, at least in some cana, b«vn maintaiaod by ikt men of the ahire. It may even have b«on in aomo aoct a town : the gnnt people of the shire may bare been keep ill it hoUMe» or 'haws,' as thoyw«re called, and 'knigiila'sf the old English kind*. <ii) A market haa bs«n bald in it is to Bay, it has been one uf the few places in which bny cattle and other goods wiUwMit pnuiag thair jeopardy ; their baigaina wart ittarted by oAskl wit toll was taken fmm them, (iii) U has favaa Um msaling-
far Uw work ih&i hu 7*1 le bt dooe fa* Ba^ial t U b
lUs SMtfoo of our book. Msa/ ildM of tit* hI^m* h««« ^m mm^^m
tnslsd \y M».lox. Dr Hcobto. Dr Oi«m ud -Un Qtmm i km |a« ^ ^ ^
bsi rmtvid loo Uttk MlteBdoa. Tfas Hl«kiry at Ban^lM 1^
Bli|ili«i mtkm lo ■«, far sQ Ito tnduliT, lo b« s k^ BlBtahB.
• U» MstUaad. DomMdsr Book. y. in 1 sbs Matak^ Dereagk. OHBktMp^ IMS.
■ Koc DH«aHi4r of OM of Uw ombIIm of s Utor Ua*.
« ror thiM kBlghta. m 0««m. OM WiiiIimI. i. XWL fm ■gsian thU thMiy ms Tait. B.aR. tfi. TTt.
the moot-Btow of the abire, and perhaps because it was the couuty'H U)wu, it wa^ in no hundred, but hod a court of it« owt\, a burh-iuoot or port-moot, which was co-ordinate with the hundred-roooto. Moreover, a aevere and exalted peace, the king's hurhgri^, had reigned within it. This seoms to be in origiu the peace of the king's own palisaded homestead, and has beou extended to thasit towns which are the military, commercial and political ceutres of national life'.
Bat the boroug-h has been a f?tn, and we may believe that in many caaes its »oil hns been laid out in the old rural fashion : there have bcon wide open fields, meadows and pastures; there have been intermixed h»U^ and yiirdlands. The borough commuuily is a township, and, if in its moot it has the organi- zation of n hundred, it none the less hatt fi)r its territory Beveral square miles of Und on which corn ih grown and beaats are depastured.
I The texture of this community is unusually heterogeneous. We suspect that there are within it the knights or other de- pendants of the shire- thcgiis. As the military element bucomex Icfts prominent, these thegna will let their houses to chapmen and craftsinen at money rents, but will endeavour to maintain as long as powiblc a jurisdictional control (sake and soke) over their tenants. Also there may be free and lordless house-owners and land-owners in the borough who increase this heteroge- ncity by oommending themselves, their houses and their lands tu the king or some other magnate: in particular, many will pay a little haw-gavel or land-gavel (house-rent or land-rent) to the king in return for his jMitronage. Thus it is likely that the borough, if it nourishes, will escape the fate that awaits many a common village : it will not as a whole become the king's or any one else's manor. On the other hand, strips of its arable fields may be worked uito mimors whoiM centres lie eitho' within or without the town-ditch. At this point numerous variations aa> possible ; but, whatever happens to the arable, it is probable that the town community wilt retain some control over and use of the green pasture, and also that just in these vtlls the claims npon the pasture will begin to take a new ahape. The 'men' of important people will be taming out their
> It U not imptinl tLmt all of tbow obaraotoriBticA woiitil ho totrnd In tnry borough. It i» Uighly imprahabla that strict definitiuo wu pouible to the tenth uid ImpoHidble is the thirteeDtli oantar;.
Thp boToiwb
M vilf
The
borough's
betMTO-
638 JxtrMiction one/ Gommunal AffmrM- [bk. n
Tb* korovib
■ndlb« klnit.
Tlw
banHi«b
hones lo gnuie and yot bave no intcrett in the; arabli% mmI tit OfqxumDtty for lale and purchase of com aod haj whidi the nariiei offers may cause a rapid disinUigtation uf the old mi^ mifficing hides and yardlands. Then in having a naoot of own, a moot establiahcd by nadonal law. whose {m6ta rooeived by king and earl, the borough hu an ofjao of daoaing dooms about this pasture, and, at laasl in instaocQs about the arable land aim. and this power of ' nghl- speaking' can not be sharply dintinguidied from a regulation.
Thus to the eyes of the Canquerur's olBoeim, whose full of the fbnnnht of dependent tenoM, the oM bonqgfe presentft itself as a knot that can not be unkind. Cnit it it; but they scruple to describe it as being Trrra Rsgi*. aod iJcar^ it is not any one elw's land. It ia not part vi any cue's yet it is not like one of the king's demesne maaon^ fcr ( oommendation is hanleuing into tenure) there are ia it of many fieh. The king ia not ita laodtofd. cxoepft ia thtt «ii» and lonlly, rather than landtonlly, sense in which be is laadlaid of all Kugland. On the other hand, the king, though wamm- times in conjunction with the earl, is the Immedisla )m4 «l those inAtitutiuns which give the bonrngh its sfMxafte ckscMlsrc knd of its court and lord of its market^ with a btfa had d liberties to bestow upoii its buxgessea As tima fosa on, tb borgeaaes. who are coalescing in a new type of nianwwailjr. «9 bs treated as on unit which has no lonl bat the kng, mA «9 pay talUigea «4ten the king's demesne manoss an taUagad : baft they will make their profit oi their eommnnal * inunadiH^ ' hf depri^'ing alt landlurdmhip of its kinUy ohaiaeter and it to the level of a mere right to rant*.
As an oi^gao. the borough has its uool. which m t/skx sheriff or some port-reeve who is his fuemm. Bariiaps frv« men or the house-holders are entitled and booivd lo «l m doomauion. On the otht-r hand, in tome boroughs which bass been Danish, there seems tu be a group of hareditaiy la«*mM or doomsmen. Also we must reckon with the po— ^ility ^M the military organ iiation of the Ixmiugh has cauaad the tioo of wards (ctuiodia»\ at the bisid of each uf whkk
1 TW kiac «a sootcj avay hia lisiifcli ; hat la to lad • boroofli of higli tank thai hH bm
■salllUM
I.IIL§8.]
The Borough.
639
aldorman whose office, like every other office, ih apt to pnss to his BOO. But ihe little evidence that wc have suggests that a cloMj and definite college of doomsmen was exceptional, nnd we have small warrant for supposing the exiateiice of any legally constituted ' patriciate.'
The burghal community being heterogeneous, voluntary The societies are formed within it. Gilds spring up io ihe town, ud Uk The festive and religious gild may be very old, may even be "^ traced hack to the days of heathenry ' ; it is likely to fioiuish in the Ktil of a borough. In particular^ the * knights ' (of the >Id Baglish type) who are in the borough form gilda, and the ^linighta' gild may become an important factor in the life and even in t-he government of the town. The sphere of association and private enterprise can not at this time be marked off from the sphere of government and public power. The contractual or asaociative principle whtm it first manifests itself is unruly; we sec how the vassalio contract threatens for a while to make itaelf the one bond between men ; and even so a club of thegns or knights, or at a later day of merchants, may aspire (the phrase must be pardoned, for it seems apt) to ' boss * the town'. But at any rate gilds and gild-like structure have a great iture before them in the boroughs. It is probable that some of these traits of the old English Tnuwitioo borough were vanishing or ceasing to be distinctive even before xiu.
■the Norman Conquest. In the new age that then opened many changes tended to produce this effect. Castle-guard was substituted for the older httrk-b6t ; markets were established in many places; the ordinary village had a court, a manorial court; the old burk-gri6 was merged in an ubiquitou.^ and homogeneous royal peace. Another class of boroughs was ^KDoming into existence, the enfranchised manors. Perhaps the ^Bfrtie-tenurc of houses at fixed and light rents which was to be ^Blbund in the old shire-towns, sen'ed as a model and generated ^^the idea that, where 8uch tenure is, there is a liber hurgas', but Just in this quarter a French strain may be sought and perhaps
I
1 B« lietwnDAtin, Du eogUwJn OUdi im sclitfii JilirlioDdcrt. Archiv tOr du Stadium dei Deoereo Bpcmehen. xen. 899; kIh) OroM, Oitd 3liirehant, I. 174 fl.
* Id very nopot dayn Ipsvieh wu 'boMed' by ft WeUingtou CHab Mid Cambrid^ by % RuUiuid Clab. Sm oIm the itorj of OoveoUr u told b^ Mta Onta, Towu Life, U. 305 fl.
640 JurisduUiaii and Oammwhol Jffain, £b&.
detected'. Bo thu u it mi^y^ the bumbcr < inereaeed rapidly. A lord created a liher burg villein serrioes, hcriot and roerchct. and inrtod UmcvoC loik money- rente, ut, for (txamplu, twoWv peace from aach booaa Moreover, he might alluw his tonanca, his hur^mam, lo lum iW court, to farm a market btntUiwcd un him by ihe king, aad la eleat a hAiliflf. It was difficult or impowibte to nark ifci lowest degrw of privilege or exceptionality which wnald a township no mere townahip but a borough.
Wo may dwut) upon thin diOiculty for a ehort whiW it illiiHtratcii the hIuw gruwth of thnt new type at which we call intinicipal and ctirpornti'. Wc caw not a borough aM a vill in which burgage leQurc prrvaili^ fiar of this we hoar in plaoee which wcru not called borough**. We coo not aay that a borough i« a %-ill which ta held in fans by the men of the rill, for thie 'eelf'&niiii^* nay be aomc Itttlu villiigM. Nor again can we aay that the 10 a township exempt from the juritdiction of Uie ooOTt; many a mere rumi township ww (juite ea hundmial aa wan the nonnal borough, indeed it miglil be more exempt from the inlerfcrencv of (he oaoaty than was many a email borough, for ito lord <to& nn m^ the abbot of WeHtminvter) hod 'the return of wriu* in all h» manoca. Nor again can (he teet aSbcded faj the pmHiea rf^« the eyres have been applied except in a imeeidad way. n» bably a place which had ncrver anit twelves imrliad of foer. men to meet tho juxtimv wnuM have had lo a giBDt of new liberties before it ooald prateod lo ha a township; bat there eeem lo have bees in many places which senl twelve men to the «jrv and wfaich y«i were not called boroughs or eummooed to lo parliiuncnl*. And when the parliamentary
> Sot Fluh. \m ari(ioM ■!« I'aiwfaattt T^siM*, tt. SIS K., AIm th* maxj louiUiif Bhaddton In D. D. I. Mi, Mid %ammm, f^ W. poiat Ijm CottUuMi d> LottK ai. I'rou. tHM4, h« Ml af iMbwMw i
* TfauB Uio ftbbnt of Bw hu btincMK* unaau *t Alhw^twat la Wa flilirt PImh in U»nitruU Courta, L 40-1. So Uw •thai ti NutMt MtAnu ftt PUlDO la Pi ihiis Bis. MstaMh. iL M.
> In Eawud m.*! nten Um omm «l BahMiril fai Oartr^dn pniw tbiU rigfal to •ytmx bji tw»|v« turn; I*. Q. W. tsa. TW if** «1 bBDdi»J Todb aho* ft (opd mftojr ' OMaon,* MpattsUy sMlaBl <■■«■■• ■■■■•. ■pfMilsn Is tUc «iir. ana U mart U MfMmfand tlMt tW ■»•«« «f fl»
■■ WM la MM iiumi t&ud Uka
III. § 8.]
7%tf Boi'ough.
641
iipplicablc the* line that was drawn was irregular. It has been
itculntcil that under the first two Edwards 166 bnroughs
rert- stiiuiuuned uiice or more often ; that ou on average under
Edward I, no more than 7o, under Edward IL no more than
HO boroughs were actually repreHent«d'. At any rut*' the
^number rapidly decreased. That the sherifTs had an mimcD»c
>wer in this matter is certain. In 1320 the sheriff of Bedford
And Buckingham Kaid that Bedford was the one boroiigli in
his bailiwick, though in 1310 6ve others had been summoned,
namely, Amersham, Wendover, Aylesbury, Wycombe and
Marlow*.
^m The truth seems to be that the aummons to parliament RooroHu-
^wigendcrcd a force which diminished the number of the would- jil^u^uii.
^Bc borougha. Theretofore it had been well to be a borough ;
^^be towuafolk when they weut before the justices in eyre had
enjoyed the privilege of 'swearing by themselves,' uf not being
^nnixed up with 'foreigners'; but now they were called on to
Nond to parliament representatives whom they would have
Uj pay : — at such a price they would no longer be burgesses.
Another force was making in the same direction ; abbots and
Hpther far-sighted lords were beginuing to discover that it was
Hbot well to have burgesses. Long ago the men of Bury
Hfit Edmund's had been freed from all servile works; the vill
had received nomen et liberUdem burgi from the abbot ; a
^yiortmanmoot was held in it; Abbot Sampson had chartered
|it*. In 1302 the sheriff of Suffolk bade it return members,
sending the mandate, as he was bound to do, to the abbot's
^^ewanl. The steward made no answer*. Then from 1^04 we
^Hiear how the men of Bury have been making a 'conspiracy'
^nnd holding 'conventicles' among themselves; they have been
pretending to have an alderman and a merchant gild ami U* bo
■ free burgesses.' They must pay heavy damages to the abbot.
and those who arc too poor to pay must go to prison for a
month'. They have not a gild merchant, nor a community,
nor a common seal, nor a mayor. Thus Bury soon drops out
from the list of English boroughs, though long before this.
■ ■ BI«n, OeachiehU dos WahlTtohU lam iiBHBehM I^uUioeut, id, 20, * Kiew, op. at. p. S8.
> JoealiD of Ilr«]cclanc1, p. 78. The obarter it giveD in • Bary HcfiuUTt Cuab. UnlT. Lib. Ff. ii. »S, t. 04 b.
« Fiu-L Wriu, L 1S3. * OroM^ GOd MorthanI, ti. 89-A.
41
042 t/uriadiction oi^f Covimunnt A/Faii'^. fmc it
Jooelin of Bmkeland, no frii.-nil i>f ihu towoitfolk, bad it ' the titlu and fmnchiac uf a borough'.' The of some burgeans who would not pfty rapnM&tatim^ tb* Bv- sJ^tednow of aoine lonit who just at the cntiGal mtimmi pemived that buigwitiett would uut bo guud tttowiU, ths ii now of sheriflTs who did nut oun to ontar, lor bo gun themHihm, npon an ardooius iitniggle» th« indiflurcaoe of Vmg who bad no xused of the mm of little Unrna, all m for tht> mrae reralt Btfiire th« end of the ftmrtwiuib om»my the uumbcr of town* reprowntod iu pixliuiwut had taShm l» a handrcd. and thoae van rooat onaTfioly diatribotad asMif th« voriouH countlaa. We an not calliid upon to «KfilBiD iAm pbenuineoou, for it bclooKa to the foartemikh eaoftarj; bat it forcibly Kuggwta thnt in thu ihirtiwnlh no «triot 'fi^nit^ of a butvugh waa poaaible. And lu the end whu ta t^ lagal dafloition ? The effisct t« put in pUoe of tba omm* : — ' A boq^ ta on nncient towDc, hulden of thu king or aay nihar load, which Rondeth burgoaeoa to the paHijtmetit...aad it ia A burf;li becauae it aeodeth mambeni to pnHiaroaot'.' Kvery note in tho gamut wboae two axinmw am th«
cs;,^. rami townahip and the gtvx ooaununity of Landoo aaigkik ha g^^^ ibnod and Mtindcd by the patient hiatorian, aad aon* tt ika amftii bomugha, wboec inhabitonta mnrer attain Co a urbnii life, are of great iotfeereat aa orahaeoiogical but wo muBt here glance only at the towna which von, and on the whole we nhall find that titaae oU Bhire-boroughs. of whoac early dayv wo hare apokan, in the front mnk throughout the nuddle agoa^ ^l^*>m^ * ^ othur towns, eepeotolly aome aeajxnta. beoaine prittimfiil Wa may fint look at the *liberti»* or 'feoochiaav* whioh beatowed by the oborter* of the twelfth and tluitoaBib turiea, and then v« may aay a liitW of tba ooqiacBU of thtf borough community'.
) Hm Ptk«. Intradwtkia ta T. & U K4v. la. ViL
dlHDMioa of Uw BM* of Wdla.
<Co.Ul.IOak. SMSl«WM.CsULHM.ttt.44a-4M;>taM WkhlnchU.
• DcsUm Uw tmrioe* bMMi^ AwM* *• iMl r^r «a
ouAuUm, Om nww^iar ef ipumUk (lUMfc BMk ti lU
Om b4tard» ot VMUn^m («d. llMi— ■ue>. Urn ■iimli •( Um, ttw Itoww^ of I tiaMm. at wkkth by iPm BfoB-i Mm fnat-AmHa, ll» Lmi JariidicCkm in Korviih (Mfcs
CH. m. §8.]
The Borouyk.
64a
t9«] (t) Jurisdictiotial privities. Usually there is no need lor •iwtMiia* the charter to grant the rij^ht to huld a court, for the court prMkfM.
(exititfl alreiirl^ either in the form of an luicieut borough-uioot br in that of a uaauorial court. Indeed one of the ' liberties ' that the burghera sometinies seek is that their court, their port-moot, or borougb-muot, shall not be betd too often — not Diore frequently than onoe'a week. On the other hand, a common clause provides that the burgesHes, except the king's moueyers and servanta, 'shall not plead beyond the walls' of the town, unless it be for tenements which lie eUewhere. Then sometimes a further attempt ij* made to define the com(>etence of the court in a manner advantageous to the burgeaites : — if ft debt is incurred in the town, the plea upon it i^ to belong to the borough court. Franchises of this kind are of im- portance in the hiatury of the boroughs because they give occasion for communal action. If a burgess is impleaded in the king's court, it bchovett the ofticera of the borough to appear there and 'claim their court,' and any negligence in
»thi5 matter is likely to be prejudicial to the borough sa Rowing that it is not ' Bcisod ' of its franchiBes. Not un- frequently the burge»«;s enjoyed in their court a procedure differing from that of the royal tribunal ; they were protected against innovations aud rufornts. When wo find that trial by battle is excladnl, we may think that civic is in advance of royal justice ; when on the other hand we find that trial by juiy is excluded, and that the accusctl burgesH of the thirteenth
H^ntuiy even in criminal cases will wage his law, while the huu-burgeHH must abide the verdict of burgesses, we know that from Uenry Jl.'s day onwards civic has been foiling
MJ behind royal justice^ has been becoming antiquated and setfiah'.
This may not alwn}*s be its own fault ; it has not been permitted
to improve iteelf; it is a chartered justice and must carefully
keep within the limits of its charter.
Cuftamtl. A DtAOUMsript copy of which hu been Undl; lent to di by the Bev. W. Hod^on. lh«^ Wincfaettcr Cuitumal (ttw FrtDoti version of wbleh ia ^veii by Kmirk*. Arofaaeol. Juurokl, iz. 6V, ftud the F.nglUb vonion hj Tonlmin Soiilh, F.ugliah OUda, SiH), tlia OoatamftU of the Cioqae Porta printad at th« «tul uf Lean's BUtoi7 of Dover, tdI. H., and th« Otunuo^ of Preaion, printed to I>obMii nod UikrUiid, Hiatorjr of PrMton Onild. I>r Orou'a BibUogrBpb; of UunioiiNil UUtor;. New York, 1897, is an admirable gnide
' Maninuntta OildhaUae. i. 103-ll'i. Mr Riley io hie margioal notoaninc* the dkUoeUon batwaon eompargation and Utal b; jury, Seleet Pleaa of Iba CiowD, L pi. sa.
41-3
644 Jurisdiction and Comnumai Affair*, [bk.
OtalMl
fir-
IJ«rii- Valuablu though tht>iM: ccurU mftj \mtt been to tb«> fdk, they wcrv Dot niffenyl to tlo much ham tu the a ooromon Inw. Soma of thu boroughfl dorftlopad n procedure of their own; aa 'mmm of firwh foree* look t^ plActi of the king'a aaaue of novel diMeiiin'; but cwn n Londou A proprietAty action for a burgage wai bogon by tb» king's writ of right, and when that writ waa aeot to k* favoured towm it oontAined the tumal throat of th« alMriff* interference*. The pnrt^ diaaatiified by the Judgment af tb« borotif;h court »mld bring tho mattor baftm tb« king'i tri- bunal by a writ of false judgment. From limo lo time jmtkom cominissioued by the king hold a M«iion At St Marttnli l« Cinuid To eorrect the (•rropt of the Londuo hovting- Umi Londoners held their pri\ilegc m high that they woold xwhm to answer oven in the court of a fair that thtry friqMOled: bfUgMWs of other borougfaii. thntigh they had the in their charters, were Iran haughty or muTD politic*.
The criminal justice of the borooglw iekfeoi any higher point than that of infiingthief and qHhigtihwt in other wonts, the punishment of criminals caught in act The borotighti had to appear beibiv the kii^'a Ji in eyre. It waa privilege enough for th^m tbat tbey appear thero by twelve of their own m«n aa tboogb Ihej were hundreds, and that thus no foreigneia ahoold malbt pR- >< sentments about what hod happened within \hm valla. R««m the city of London underwent viaitatiolu ; the gaul i4 Nrwgato wan delivered by royal commiananeiii. and an nnmannal wfm held at the Tower would aerre to bring the dtiaHne la wmtmUm for they were like to find that in the ejrea of th» U*^ advocates their choioeit libertiei had been — ilaiywl bf abuse* I ot Some of the more important bofOOfih* had aha the fmnchiw known as * the return of write,' It «aa to them, for, so long oa they had it not. ibe ahartffa were constantly entering the town in order to
1 Manin. Odd, 1. Ml. IM: Ipwkh Diwiilij. |l «; flL 17; Kawr^B of Kortluaiftsa, L tti, <TT.
a B«e. BrM. Oric. t 3 h.
< Bi)«7. ChfoaW*. ^ BL StUM riMi la Muiarial Cowta. i
> 8m tfat aMoant of thi «jn ol Mvaid U.^ 4ay ai Ika Taw if vlikk lartad tar trnmiyknt VMfa; M— 1— ifc nniiilli i voL O. f».
CH. 111.58.]
The Bumugh.
645
aud execute the pi'occssea of the kiDga court Xeverbheiei» it me not acquired until late in the day. John wan, to stiy the least, chary of gmnting it*.
(u) Tenariai VriviUgea. When the period of chartera PriviiMgwi begins, burgage tenure already prevaik in ujany of the large towua; the u>wu.sfolk already hold their lands and housee at money rents, and merely as tenants they nx|uire no further favours. Otherwise is it when what h&a hitherto been but a niral manor Ih to become a liher burgits. In such a ca.Hu there will be a commutatiuu of .services, a release &om agricultural labour. Sometimes a free power of alienating his tenement is conceded lo evei'y burgess, sometimes it is distinctly said that he may make a will or make an heir ; but in general the power, very commonly assumed, of bequeathing burgage tenements
BMike chattels' seems to have been ascribed to custom rathor than to express grant.
In the ereat towns the existence of a court eujoyinff royal Umd* frauchisus seems to have reaucod the mesne tenures to political bi tbm insignificance. At the time of the Conquest the buigeasea ""*"• of a county town were iu many cases a heterogeneous mass;
Kuj some of them hold directly of the king, but others were the
|t(mant«. the justiciables aud the burgci^ses of this prelate or of that boron. Seldum were the men of such a town ' |H>ei-H uf a tenure'; seldom was the suil an unbroken stretch of ruyal demesne. Not only might its bounds comprise many a private soke, but some uf the townsfolk were accounted to belong to the rnml manors of their lords. When therefore the king under pain of his full forfeiture ordains that none of them need answer iu any court outside the borough for any tenement within the borough, he is practically detaching these burgesses from the manors to which they have belonged and is defying the principle of feudal justice. The men who have -itettled ^^ round his btirh aud his market are his burgesses, whusuttoever ^kun&nta they may be. Here and there a lord who held some ^Bo«usidcrable quarter of a borough might keep a court for bis 'teiuuits, and, as he had acquired for himself aud thorn some immunity from taxation, they would refuse to mix with, to be at scot and lot with, their fellow townsmen. But a small
' BeoordH of Notttogbun, i. 40. On); io 13SS did Notlia^bun uqair* U. NortluuoptoQ in ISJJT: IWourdi o( Northuopton, 1- 4fi. C«Ribtul(|e m ISM; Cooper. Annalii, i. 44.
Jurisdictiofi <aid Oomtnttnal AJfhirM, [MLIL
StlKMvtal
ttatot
fntfai
group M ra«D who fonneiiy were reekooed to boloof lo MSt dwUot manor woald aooii be merged in tba fmoral ■■• of buri^!M(p8. They wouM miU piiy tvut. uot lo U>e kiag, wt to the kiog'B fkrmerB, bnt m rtf old to their lord; adll m othar oonnexion would bind them to him, and h* would watm rink into the position of a mere recipHOt of rent'. Wkv* tencmentu can be dcriacd by will caoheata are rare; the of tbc roenne Ionia are far|rott«n. and ibeo it ia aaad tbai Any tenement in the borough cwhcniH, it mcfaBata lo Um Such in Edward II.'s day wan ihv rulo in tb« dl^ of where many * banins* had onoe had take aad mdIw*.
Thn mpidity of thin procefti variwi from bnpttij^h lo In same of the Miialler town* that w^irv chartenJ by *■***■*** lordu it nevnr took place at all. The borghal coart Hoignorial cimrt. which ikunmed now the form of 'eoort ttud now ihnt of 'oMirt barott ' ; and ttich it * tr«] lo bt until the end. But evftn in awne groat U . ^-ugDorial
jnatio* wma a hardy plant. In Ktamfocd, which waa aa «U roy»l boroiififh, though it had oome m Idw baodt of tbe Bvi^ of Wamnno, four pnlatea and llvfl oUmt kirdi cleJawd have ooQit of all their tenonu; and thin in tbt fmr 1S7< In London n«ftntr tbt b<^inning of th* wniary thert many soke*, and it wems to have been oaoal that an for land vhould bo begnn in a feudal oonrl, and dMrnld aoly oome before the civic htuting after m de&uU ia jwMJM had been made'. Kven in Edward !!.'■ retgo many Iai4a h«*» la Kay by wluit warmnt ihcy claim frvochiaea En faawim. Tile BUhop, Dean and Chapter of St PMira hare tkivc aofcaa ia Comhill, BiidiopAgitU] luul Holbom where ibey enftH* ika right uf iii&uigthiuf, thou^jh the actual banging ii dooa oalaUp the city at Flnibui^' and S%efnayt The Prior nf Ttimty Cbnrrh, m rr>prva''ntinK the twtate of the old Kngtii4 gild, holdii the Portmikon and %» an aldormaa by leaioa ; dvic jiiroca admit that hu nwa and Lenanta mat aad med in hli coitrta*. Then ia IbadaliiiD in tbe gjUfcaO Robert Piu Walter Btill reprewnta the kink of BanMid'a though the cantle itaelf baa been aoU lo the ftiiMiiebiy ff
I Maltluid, Towiuhip uad honof^ p. 1L
* Pbelt. AMnr. 910 (LeoAoa). > B. B. i. *M. « HBBlm. UM. t «4^
• P. Q. W ITS.
9 aani^a
CH. III. § 8.] The Borough. 647
Canterbury. He must be summoned to every meeting of the common council ; when he enters the gildhall, the mayor must rise to do him honour, and while he is there all the judgments that are to be delivered shall be delivered by his mouth. Such at all events is his opinion'.
At a few points of private law the borough custom would ^S"**!^*^ swerve from the ordinary rules. Often the tenant of a burgage l»w. could give it by last will, at least if he had not inherited it, for some customs drew a distinction between inherited and pur- chased tenements. Then the customary rules of inheritance might differ from those of the common law. A custom which gives the whole tenement to the youngest son has gotten the name 'borough English,' and has therefore been supposed to be peculiarly appropriate to the circumstances of townsfolk. Really, however, this name seems due to a single instance. At Nottingham in the days of the Conquest a new French isa] borough grew up beside the old English borough, and the customs of the Burgua Franciscus as to dower, inheritance and the like had to be distinguished from those of the Burgua Anglicns\ Among the customs of the ' borough English ' was the rule in question, and after the 'borough English' of Xottingham the lawyers baptized it. As a matter of fact, there is no reason for supposing that it had a burghal origin. It is not very often found in the boroughs, while it was ennnnon in runil manors. Xottingham supplies us also with a rarer custom, namely (we must borrow a term from France), the retniit liijnaffer, the right of the heir apparent (or perhaps of any kinsman) of one who sells his tenement to come forward within year and day after the sale and buy back the tenement at tht_- jiriee given fur it'. At Dover the expectant heir had to pay iH' more than nineteen shillings for every pound that the stranger had jMiid*. On the continent of Europe such a right was common ; a mitigation it \\a& of old law which re<iuired the heir's consent to an alienation made by his ancestor. The Knglish Common law seems to have leapt over thi.s stage of devel(j[»mont, an<l to have |)assed at once from the rules laid down by (.llanvill, who in many cjises requires the heir's
' 1'. Q. W. 472. Mmiim. (iild. ii. 149-151.
■ lUconlH of SottinKlium, i. 124, 186.
■' lU-L-oniB of Notlinyhnm, i. 70, 100.
* Lyon, l>ovor, ii. 274.
ftt»^l
^48 Jurisdiction and Commvnai Affair*, [bk. n.
ccoiftent^ |4) the state of thingw ileacribnl by Bnctma in mob oonMDt w never nnrowty. Now in a boroo^ m look for ft gRAter and not for a leu power of Klling land* prevailed daewhere, and it ia not impiiwible that tfau of mime boroughs fell bohind just beeauM at an oariier hud been in advance of the common law. Tht) bcmogfa from the king a charter saying that if anj tmno hoUa & ment in tha Uiwn for yuar and day, the clattne uf mwtwy tu thni U'liimit^nt Hhull h*: bnni^l, unU«B be wm in undor ngc or beyond the Miaii'. The main object of Uua ia la preclude the clainu) of expectant heira. Tbia patn the autem in ndvauce of the common law nf Qlanvill'* day. Bat eoM* boroughs stop hero ; Nottmghom at leattl etope bef* lor a while ; itfl custom falU behind the commoo law and difiiap a rttrait lignagtr. At Northampton we find doC only tbe retrait lignager, but also the rtiraii fiodal*. Then, egaut. tW custom i»on)climefi pnivided for a landlord, whose rtni wm im arrcar for year and day, a readier mode of ejcoiing hia ImmbI than the common law would have giren*. Bat we do Dot fiad many jjeculiaritics «f this sort.
In thin context wt^ may mention another privilege tlMl n aometimes granted to n bumugh : — the serf who dwalla mhtf A year and a day, at all ovent^* if bo ha* beoome a member uf the merchant gilil, becomea free, or at be cliumod by his lord so long as be raooine witbin iW borough. In itH origin this seems an aMertioo of myal ngbL Hie king treats his borough, the wbota of bu heroagh. •• though it were one of hia aooieat nuuian. If a aerf eamm le
■ MallUad, PuwsmIuo tot Imr •ad V^j. La* Qm%miy TUf |>riTaati »M Krantwl lo 8017 hr Uw Akbol: Ifaa hsvt • lifalljr Mquiivd ' Uu tuMMnli BtfjMraa n.a.at.lMb. am aim CliiilnHM rf WfcMhl •ppuvnUj when a oMawi ol WfndMrtv vMm* to amkm ft b* pnwnu tiiB chAiivr lo lli« tMttmmt: UivvapoB 'Mm h«i' ftA«t Ihroa lU^v llw ehvtef ia M*lpd with Uw tkj'w mmi: pOMiilon Uv ^Mr uul da; ttm purcbaast i* mAl Km Um m Ib Korthunpton. t ooM by ICr Oma la C Q. B. lUL lia, m KonhunplCHi, t 4Mfl.
> lUeot^ of Nflrthuopton. I. 914.
■ Ab lo lb* Uodoo -iwvvM- w* Miinlwim OMh. L ■; WlaobMlvff •oMaou Anhaaol. JoenMl. u. Tt. wA iW Oaaaia|U«.Omnli or Eo«ifeh toilMto. ad. I, t <U. sal Ite tOSlolB, BMOrda of NartliunpbkO. t. JtllL
dwoll there, his lord iau.st cluira him at once or not at all, fur the king wall not allow the lords to interfere with his lands. Ab regards a bon^ugh, an expreHs declaration of this principle is neoesaary, for. as wc have Been above, the land within the wall& of one of the greater towns was seldom an unbroken »tretch of royal demesne land. Neverthelestt ' the borough * »^ a whtile is the king's, and he announces that those who come there and form part of the burghal community, attbongh they may not be holding their burgage tenement immediately of him, arc to enjoy the security that ia conferred by the soil of the ancient demesne'. The first declarations of this right arc pitched in a royal key. Henry II. in his charter for Nottingham declarer that 'if any one, whencesoever he be, shall dwell in the borough a year and a day in time of peace, no one, except the king, shall have any right in him'.* We are not told that the serf is to be free ; but what remains in the king's hands for year and day becomes the king's. As the borough gniws more indcpcndont of the king, the rule begins to take tbc shape of a privilege conceded to the burgesses instead of being a royal prerogative. The burge«aes are glad of the concession ; it keeps their town free from the interference of foreigners, and someone thought fit to add to the Conqueror's laws a clause stating in the widest terms that, if a serf lives for year and day in a city, borough or walled town, he shall become free'. Nevertheless, it would be a mistake to think that the towns- folk wished to obliterate the distinction between free and bond ; on the contrary, they were carefid to prevent men of servile birth from becoming citizens*.
(m) Mercantile Privileges.. The borough is not merely ^|*^"
tnnntoll.
■ Sm ftbore. p. 4S9. > ItesordB of Nottingtua, 1. 1.
* Lc«. Win. Conq. m. c. 13 (SeUmid. p. S&T..)
* On lhi> mibjpet mw Slabbc. Hoveden. vo). ii. p. xxxriii. It i> tniv tluil wa read in GUovill «ni) a few ohartera of the privile^ m exialiag la eerlKtn bonoglui before w« hear of It u exiallog oa the ro.>-mt demanM IuhIk; but ia general the peoulinritiw of the Bnaeut demeuw »re resBrded m verj KDoieut; tbey uti »upp«i«ed to mprcHnit the conquest Bettlenuml. In I31S the wnnl l>ba Iaw or ehftrter of the Coaqaerur wu pletded b; penona who were living in Norwioh: PUoit. Ahbrer, p. 816. In 180S Bimou of Poriii wm iU|irt«ODed an ■ viUein; be brooKht an action uid Ute ]i)(ia that he waa a dtisen and aldciiitan of LoodoD wu not rt-oeived : Y, B. 1 Ei)w. U. I. i. At Norwidi no oau eould beoom* m dtiien nnlen be wu ftlread; a fnw man: Norwich Caitlumal. cap, M, ThU waa tnie of Iiondon alao: Uoniiu. Oildh. i. 88. H«e Orosa, Odd Merehant, i. 80.
briMd*
650 Jurlitdictwn awl Commmuii Affnir*. [bic. It
« goveromeotal And in a cfuiain meAnm a WK&Ugainam^
district, it iH a powetaor of mercantile privilege*, and, aa will be
rfroarked below, it \» chiefly in thia fiharaoter that it
a penon in the eye of the law. When a borau^ had
the right to fann itoulf, one of tbe mo«t important
iu revenne was toll. Of thitt we intMt ppeak hereaAar
wo di«cuwi the Jirma hwyi. SoraetiixMU tUs faant of t
waa prolocted not merely by a rule of eominon law« vbkli
A-fititd h»ve prevented even the king from attUinf up a a*« In
the damage of iw old market, but al»' by a royal ban wbidi
oompelled the folk of the noighboarhcxKl tu do tbtnr buying aad
MiUing in the borough'. But thoao who took toll were
to be quit of toll, and perhaps the buigimuj regarded
from toll OH thf moAt vital of all their rigbta^ Alfwdy in
day book we read how the man who was domtdled in Varm
and there paid the king's dues was quit of toU throogbovt a>
England'. Subaeqnent charten threw about such bvxmn wjik
a lib<!nd hand ; Bometimea the burgeaaoi wen to be tmnmae QMI
throughout nil KnglAiid, nnmetiioes they earned Ifceir UBonMty
intt^i all the king'n IjindH beyond the nea. Id o«r eyvt^ H OMgr
be. the beat outcome of this privilege was thai it proridsd M
ever-recurring the-me for inter-municipnl litigstioo and
in the bomiighH n conAciominem of their penionality.
(IV) The Firma liuryi. ()fu*n the bttfvugh fiuvwd ii or ptThafH we htul bcltvr My tot the |iretenl that tlu9 tinned the bontugh. They might hoJd tlwir tcnro nadir a Imm lor yean or during the tesor'a pleasora; Ib^ niigfcl bill it in fee fium : that in, under a peipeltuU l«asa» Importaal m this step towards indeftendence might be, it was not tahoi l|f •ome towns of high nuik uutil late in the day ; it woold «■•■, for example, that the citisens of Wiucheatcr did not uhtais a perpetual lease or grant of tbeir dty until the raig* of Rdward III.', while on the other hand at a mnch ■arlisrdaii many a rural manor was being fiumed by *tbe ibso of Iba manor/ though hardly farmed in fee;
Now in them eases the charter «aya that the Idqg granted the burgua or the siUa to the bwiesBai*. What «■•
1 MaUlaad, TowMhlp and BoMoch, p, SU. > Firau BorgL IS-Mi Oro«. QM UmAmt. I H • Tha tnnnattoa !■ ■owliiDaB oaOad a hoOiMi John aafcogj* thalimgiiiiii af Pwty.
:h. hi. § 8.]
Tfic Borough.
651
t of such a grant? As we understand it, Hhe burgeefiea*, taken in some coUcctivo ^hion, were to step into the shoes of the sheriff. They were to be untitled t<) certain revenues which he had previously collected. These would be chiefly the bolU, the profits of the court and such house-rents as had therefore been paid tu the sheriff aa the king'ti farmer; ^aud there might also be the profits of a royal mill or the like. )n the other hand, the king bad not paited with all his landlorHly rights. The burgesses, tAken collcctiTcly, had not obtained a place in the scale of laud-tenure. They had not become collectively ur corporatively the domini or the tenetitea of the soil that lay within the boundary of the town. This iwwms to be proved by the law of escheat E^ch burgess still l<buld.s his tenement cither of the king in chief or uf some bher man ; he does not hold of the community, and, if there 'n an ew:h<>at, the nomninnity will not profit by it'. This is the situation that is set before us by that minute descripliou of Cambridge which appears upon the Hundred Rolls, 'The bnrgeaeeB of Cambridge hold the viU of Cambridge with all its appurtenances in fee farm of the king in chief, as in meadows, pastures, mills, waters and mill-pools with all franchises and customs belonging to the said vill.* Neverthele-ss the see. takeu collectively, are not conceived as being the |>loard of the individual burgesft or of his tenemeut. If he pays rent to them, or rather to their bailiffs, the phrase need with wearisome iteration is — not ' he holds of the borough,' nor ' he holds of the burgesses,' but — ' he pays to the bailiffs of Cam- bridge, who hold the said vill at fee &rm of our lord the king, ao many pence for haw-gavel, or so many for laud-gavel tnwards their farm'.' Boiienfant the Jew held an open place in tho town uf Cambridge ; but he has lately been hanged for clipping coin, and that place han escheated, not to the burgesses, but to the king*. The general theory of the law seems to be that, in [becoming a farmer, the burgesses become rather a bailiff than a tenant, though n bailiff who, like many other medievnl bailiffs, has to account each year for a fixed HUm and may make u profit or a lo8s out of his office. In short, when a ' borough ' is granted to the burgesses, this * borough ' belongs to the category >f 'things incorporeal,' a category which comprisea 'counties*
' Ah to the eacheat of l»oA% in LoDdoti, SM ftbov*. p. MS. ' B. H. ii. 856 ff. « B. H. ii. 8M.
652 Jtti'isdiction and Communal Affairtu [bk.
Thrlkru of Um Till •ndUw •oOaftbo tUL
and *huDdr«d«.* Whon n miw in Appinnttsd aJKiiff, ibe king oommits to him ' our county of A* * ; and m the king vill gnat to M baron the humlrcd of )V The sheriff will not a«B 1^ soil of th<^ county ; the lurU of thu hundrvtl n««Ki ixH be UMOl or lord of the soil of the hundred ; in t-mrh otfv what u given ■ not nil owiuTHhip nr tenftnoy of any l&nii but a oomplfX "f rajal rightH ami |K>w(;rH to be oxorcised wiihtn the limit* <if a tract.
This quoKtion is of some imporbuioc ; we ha«e bcMd being rained in theae laKt tirnea between a mnnieipal aud a telephone company — Did the /rmu Intryi cumpnaa owncrKhip, any tviuLHcy uf the aoil 7 Tberefore we will add fiirther iu^nii*nt. Tht^ citizena i)f London fanncal oat cadj tW city uf I/undon but r1m> the connty of MiddlflMUL. Now, nrM only doea no one ttuppuae that the civic eorpuratiua haa « pliM in the scale of tenure between every Uiddleasx hmikMrn and the king, but no une mippotwa that the civie oocpofBlioa became the tenant uf all \X\v nuda and opisn apacaa within th* boondary of tfao shin*'. So again, tbe oUtMfls of York the wapentake of AiuHty, and, if what was aakt be ill they treated it lltcy anb-lot it at an advaaoMl nnk a bailiff, who uiied hit* f»ubJ6ct« no vilely that thry talkad •ailing thi'ir t4>m>ment« and leaving the conntry'. Bstk •* we undcntmid the tnattcr. the ciliaeiut of Yuri held tW wapeutake in the aame mtwt that the archbiahop might haw hfld it withfiut being owner, lord or tenant of a mud ni Inad. Shuuld u qumtion nrim^ abiHit thcao mattcra in our own day. great weight would ver^' properly bo aaoibcd to acta ut tmm*, and (to Miy nothing uf modern statntoi) maoy hoTB^^a w haw ampler chart«ni than ihoae that wen* gmrtad ia Aa thtrCeaotb century. But at to the hiatorieaJ qnaMka. »• eaa not think that thn gmnt which made tba bof]|«Maa ^/tnaeni of thu burifuM, nuule them damini or Um^nit* nt tbe lead ihiA lay within thu hurtput.
(V) Prtfperty of |A« Borou^ Bui the ' bocoogh which the king 'granted* to the bwipana oftao in aome aunae or another a targe traot of ambltt tad
'3
• Tb« 4oe4nn« which givM i^ aeU of ld|^-«ai« ^ 1^ ■*•■ aJteh**"!! '*'"*' t' oo».''*f»ptiiBidi4.of wryMwitali^^i halMiaiiBa «aa Bot b* ilUeuMad bat*.
> B. n. L lU-%. • 8m BtektU v. Cttfm^mm V 1m^ L. I. T Ok. OI
CH.iii. §8.] The Borough. 653
lying without the wall or the ditch, for the borough occupied the shell of an old agrarian community. The charter will purport to concede the whole vill ' with all meadows, pastures and waters thereto pertaining.' Now as regards the arable, this was holden by individuals and the most that the king could give away was his seignory. Apparently he did not give away even that ; the escheats were still to come to him, though the burgesses might now receive such rents as had formerly been paid to the sheriff. As to the pastures, which were ofiben. of wide extent, it is very probable that no exact idea of ownership was yet applied to them. On the one hand, rights of common were being exercised over this land, and we may believe that such rights were no longer so closely connected with the amble as once they were, but were being more and more regarded as annexed to membership of the feudally heterogeneous burgensic community which in its moot had an organ for their regulation. On the other hand, the king was lord of the vill, and the right to ' approve,' or make profit of, its waste was rather in him than in the community. This continued to be so even when ' the burgesses ' had become the farmers of their town, for the right of approvement was not one which the sheriff could have exercised for his own behoof while he farmed the royal revenues.
Thi' siirao seems to have been true of the intramural The intra- ' waste,' and of this there was often a goodly supply which waste, would be piufitablo at a later day. The walls, ditches, streets and npeii spaces of the borough were not as yet conceived to be ' holden by' the commimity. They were still the king's, and h(! who encroached upon them committed a ' purpresture ' against the king^ The grant of the vill has not entitled the buigesse-s to approve this ' wawte ' ; a more explicit licence is requisite, and such a licence they will sooner or later obtain. The men of Bristol aciniired it early ; on the other hand we may find Edward I. specially authorizing the citizens of London t^t let certain vacjint spots within the walls in order that the rents may be applied to the maintenance of the bridge", and other towns were asking for a similar permission at a much later time^
' See the account of Lincoln, 11. H. i. 397-8. Ibid. i. 203, Canterbury.
2 Munimenta Gildhallae, ii, <li>, 274.
> As to all this matter see Maitland, Township and Boroagh, 185 ff.
654 Jurisdiction cmd
4/fa*r«. [wu
titr
wmaU
None thi' le*ti. anbjoct to this xvpd tonbhip^ th« wmic bath intnunnrni and cxtnunaral, hod from Uw fiist b»kiii||ed in some vngao mrt Ui the cummuDity. aod then mn taafeMMB in which the community dealt irtth it. Thu*. for aramplt, in 1200 the community of Ipswich grmoiod thst Uicir twth* G^r portmen might h*Te a certain meadinr br Ihs Miffsi of their honuti' : and at an earltor time tb« men o^ OdM gav« an isUiid to the alderman of their gild who gmvs H I* Ossoey Abbey'; nhu we may Ami thu men of CWinbrs%B urocting « huHpital on a piooe of common land in tiw adddk of thoir town*. But before thero coold b* moch frvaty pio- priotory dealing with the paston) land ua ihs pvt of tW burgcnsic univtrntas, the rights of the oomnMDeni had W ttks the form of a mere uaage which the cofpofal«r la pwuiiHaJ to mako of the land which the iiniMrnlos owna. 80 kiag aa the rightH of paHtiuv tirv cotioeivud to be rooted in the fmmmmm of arable strips or buixage bouses, tboy are an irapadimtaA to those (xansactioaa, leases or mIos, which wiioU daaoMliail* that a corporation is own«r of the anil*. On Kb* wfwl* «s believ« that in thu thirteenth century the boq^aasie muuity. taken m unit, was tmrely dnwiog any revftnao* out of the huid which in this ragiw an it, and seldom was thoro any land which bdoiiK*d l» it in any other sort : the community wan but nsWy m fmcfcaar of land, and burgesses were not as yet derisimf tnod la • monioipal corporation. A statute of Richard CL fafhids lbs borough curporatiouM to acquire land withoni Kesaci, sad proclaims the discovury that they are *a« pe«peiual ■• msa sf religion'.' When wo coninder that ever siDot 1S79, and indnd at an earlier lime, the churches had been dabund by Ww
> OioM. uoa lUnhui. u. in.
• n>ld. ii. 1{M.
* Uaitlaod. Towt»hlp ftnd Boroqgb. 191<
Ml i* iD this qumrUr Ihsl JliiUns, 1 «M V slrvdy msi ms pMoUkrilj of ilw eiliw Mid bcionli. *1imd 1— iBi prtivll rtm] tutsa . . . Usoi leokHi it mm ewtb yiisih, *l— I Omim ymmitm H df iMa.' Ths sciaina abbn tlial Iw b dOsUas ml lo the MM of A boraofli jroo havi a riffal of pawn dwi b B«t • pinocuL' bat ■ looftL' It u sot aaawrf ta s pOTKSM, tmt U atnimi bjr «U mma^hm at tm
•fkmaktmm lakM boa ttiew «te jWHilitaiiofahwnitoU.
« sm UBfe. as. a.
CH. III. § 8.] The Bm^ough. 655
from augmenting their territories', we may draw the inference
that only in the course of the fourteenth century was the
attention of the king and magnates drawn to any diminution
of their feudal revenues occasioned by the ' perpetuity * of
municipal corporations*.
Moreover, it appears to us that the community or cor- Th« . 1- . Ill -111 oaroagbB
poration of the thirteenth century rarely had any considerable rerenm.
revenue of which it could freely dispose. The farming of the vill was a more individualistic arrangement than we are wont to suppose. The burgesses were jointly and severally answer- able to the king for the whole fee-farm rent ; but, as between themselves, the plan was that their annually elected bailiffs should collect what the sherifis had theretofore collected and should be solely liable if this sum fell short of that which was due to the king*. Perhaps too the bailiffs were entitled to any profit that they could make; but we fancy that a normal surplus of income over expenditure was not to be looked for. In order to get rid of the sheriff from their court, the burgesses had promised a heavy rent*. Thus the old revenue consisting of the haw-gavel rents, and the profits of the court and market, was no free revenue, but was appro- priated to the satisfaction of a chief-rent which it would hardly iiio(it. In course of time other sources of income reveal theniselvus ; fees are paid by those who acquire the freedom of the borough ; inorcantilo privileges are sold ; bits of waste land are lot to tenants ; a treasurer or chamberlain begins to appeal" beside the bailiffs and to keep an account with the cointnunity ; there is a common chest. But all this is the work of time', and even at the end of the middle ages the freely
' See above, p. 33-1.
- In our first editton too little notice was taken of the right which the burRcnsic community {ut mticeritilan) may have in the 'waste' or 'common' land of the vill. See Green, Town Life, ii. 237. An attempt has been made to repair the default elsewhere: Maitland, Township and Borough.
* Maitland, Township and Borough, pp. 77-9. See also Records of Northampton, i. 96.
* At a later time many of the rents were reduced on the score of the poverty of the towns, and, though we must not believe all the plaintive tales that the burgcsHt's tell about the ' destruction ' of their bailifts, it seems fairly plain that the rents were heavy. See e.n. the story of Bedford, where the rent was reduced from i;4(i to £20; Munic. Com. Rep. 1S35, jv. 2104; also Maitland. Township and Borough, 77; Hist, MS. Com. si. 3, p. 4, Southampton,
' The Records of Leicester are especially valuable at this point.
Jui-udiction tmd Oommwud Affairs, [bk.
olUw
lira >*<
(UffpoMblc' annuo] income of a f;reat bonngh «u n
The growth uf Htich un incanw, though it haa
little studied, is uf much importAnoe in legftl hiMof^r. far ifct
town's pcreonality only begin* to stand out dettrijr whm ' kkr
town ' hoM n rovonuo which is not going to bo divided
the lowiutfulk*.
If Ihu Qtmntunity ownvt] chAitrls, these mnat bars and of no grvat \-alue. Porhaps almdjr wo Biraid, simio chain uf iiffice wiw handed on froa tm/fot to aanfor, mA there ntay have been drinking horns and caaks of wine and bew for which it wuuld hjive been hani to fiml an owner in hW world uf natural penwinH. There wan a munimeni cboM aad there was a common »eal. But it is not for the Hike <A socb trifles as theae that law will und«i^ the |Hin of givii^ batb \n the juriHtic perwm. 5%>mutimpK, again, theru wooU be n boa with inuui'V in it ; but, hod a thief ntolen box or mott^, •» suspect that he wuuld have been charged with itealiag Ifas proper goods and ehatteU of sorm natnnU man. tbe najcr m the chamberlain of the borough. Thai those who ooUeet and taxes aboukl misappropriate the umbim that tbry in, if we U'lieve thi> jnrom. n common event; bat do od«, «0!9 Ux lis wu know, evitr spt^alu in this oonloxt of tbeA or UAoa/j, Wc shall see in another chapter that the <|a««tkao whslW the treasurer (I) i)wne<l the money and owed a debl to Ifct oommnnity, ur (2) merely pofineinod mono}- thai win owand hf the ouinmnnity might long be shrouded bum vi*w*.
(VI) EUcUon of 0fic9ra and Ootisi ■aiowf uf tAt lUim^ Already Hnury I. hod promised the lAmdooon thai they m%hl elect a sheriff and a justiciar from nmong kbflmodvM*. Bsl Lonilon was iu advance of other towns. Qradoally ■onia of tfcs greater boroughs obtain the right of electing ihoir their bailtfls, who however do not enter on their they have been preeented to and appnivvd by %hm kuf* justiciar. Sometimes this step is lftk«o befctv the have obtained the right of farming the borougfa in
> M*iU«iid. TowpAlp mi Haieinh. V» «. ; tor Ljm, Bml MA. 0««. tL J p. aim.
* Sm Okiha. D. O. R. U. 7B4, ' Bm Iks Mstion OB MovaU* Oooda is osr maamA mitmm. Tbp
raryefltBi at oor taodwa clnba wla* U Mntoid ftmSUm kg • law if whKh U out BMdUva).
* Sehmid. OmIm, r> IM. to Wissi. Qi^ij db UkaisiMa, f. MT.
CH. IIL § 8.] The Borough. 657
such a case the bailiffs, though elected by the townsfolk, are still much rather the officers of the sheriff than the officers of the community. They begin to look more like the officers of the burgesses when the burgesses themselves have become ans^verable for the Jirma ; but even then, as we have lately said, it is the bailiffs who, as between themselves and their fellow townsmen, bear the loss if the farmed revenues fall short of the king's rent. Some towns stop here for a long time ; many following the example of London buy the right to have an elected mayor. No doubt this step also was important. No doubt the Londoners, influenced by what was happening abroad, set great store by the election of a maior who should be the head of their communa ; ' come what might they would . have no king but the mayor^' Even if we take no account of such aspirations as were never fulfilled, it was important that the town should have some one man as its chief; the anthropomorphic picture of a body corporate required that there should be a 'head'.' Still it seems clear that a large and wealthy city might get on well enough without a mayor; until 1403 the citizens of Norwich were content with their four bailiffs*.
Beyond conceding the liberty to elect mayor and bailiffs Borongli and the liberty to elect coroners ' who shall see that the bailiffs '^**'' of the borough deal justly and lawfully with rich and poor,' the charters of this age seldom define any constitution for the borough. They make no class of councillors, aldermen, chief burgesses; they do not say how or by whom the dooms of the burghal court shall be rendered. As we might expect, the 42] active organ of the borough is rather a court than a council. The frankpledge system prevails in the boroughs. A view of frankpledge is sometimes held for the whole borough (a ' mickletuni ' it is called in some towns), whereat the mayor or the bailiffs preside*, or else the borough is divided into wards or into ' Iccts,' each of which has its separate court'. The busitiesH of viewinj^ the tithings and presenting offences
' Stiibbfl, Const. Hist. i. 071. * See abova, p. 491.
■'' Ihidson, Archaeolofiical Journrvl, vol. ilvi. p, 293.
^ S.'c the extracts from the Mickletorn rolle in Records of Nottingham, vol. i.
■■ Norwich wna divided into four Icets. See Leet Jurisdiction in Norwich (SeldtD Sue).
P. M. I. 42
658 Jurisdiction and C(?mmunai Aff<^irt, [bk.
n«
Cowt «nd
«e«iicIL
wema lo bitve boon ocKidocted within buruu^h walk
u it wu rooductcd in the open coontry. KaUinll/, bovMic^
the Bystem of Lithings aometimoa took » terriuinal form .
BRuill district of the town or each ttnet had its titliiiigiBaa'
Occasionally in boroughs which h&ve Kttle other
a ' court led ' will in cuunie of timo usame the ofawMilar flf <
regulative and goverumcntal organ of a humble kind*. m4
in some large towns the lower ord«ni will giro Toin in 'pw
sentments* to complaints against their nil«t«*; but ia iii
origin the leet or view of frankpledge is ranch r«UMr n nyil
poUoe court thiin a communal assembly.
Then thuru in the old borough court bok&i^ ftu|Ml ■Mnona Often it mU oaoo a week, and wban 'foraifMn* were concerned it would sit hvm day U> day. Often it bad no other name than ' the codrt of the borwigh (ettfi* Awryi)'; Bomt'timcfl it was the ' husling,' the ' burwaremot*.' * or ' portmaumote.' Over it the mayor or the bftilifb and perhaps in some places any burgrw wsh capable of in it as a doomiman. Bat the amiHjnl of busii hod to do would inevitably deprive it aoaotror blor ti popular chnrsrtrr ; the miwelUnmiiK raaas »f bar|, not easily be brought to do weekly suit of ooart Alraadjy ■ Henry I's day there was in London a ' boating* diaChwt flnn tho ' folkinoou' Already befuro the Cooquost than v«c* tilts Uwmon, twulve iudictM, in somu of tbo botYmgha.
In 1200 John granted to the ibmi of Ipswteb a Ubml charter. In poreuance of iu ttimii they forthwith ekcCsd t«« bailifTi* and four coroners. But thuy did not liop Iksm Hm^ decided that there sbonld be in tbe boRMlgh twolr* ptirtmen 'as there art) in the other ftvs boroi^lH of who abonk) have full power to govoni and nmialti^ tlis ' and Tender the Judgments of the town, TbOTMpMi 4key twelve men. — among them were the four ooraMfa* two of' were also the two bailiOi — and thtM iwnlrc guanl and govern the borough, to maintain its Ub«ti«s svd tu rvnder the jndgments of its conrta. Thereupon all ibe mm 1^'
\m^ tiim
> Bm Noctiiishsm BMOvii^ ftf. voL L p, lAVedaetkin lo Lmc Javi«UallaD ta Mwvkfc.
■ tfinAirtM rnnn t m Wniirti i LmAw. RmbsI* «l
> OrMB. Tom Life, ii. S4I (KsUMmvJi I^Wmt Sa«IUh TovB (Oomtiy).
CH. III. § 8.] The Borough. 659
of the town swore to be obedient to them and to every of them, save as against the king and the king's power*. We discover at a little later time that the twelve chief portmen hold their offices for life, though they may be removed for misbehaviour by the judgment of their fellows. Vacancies again are filled, not by popular election, but by co-optation'. Now certainly it would be rash to draw any wide inferences from the few clear cases that come before us ; nevertheless it would seem that very commonly some select body was formed^ some body of twelve or twenty-four chief citizens, chief bur- gesses, chief portmen; formed by definite act as at Ipswich or formed by a practice of summoning to the court only ' the more discreet and more legal men.' This body at first is rather a j udicial than a governing body, for the powers en- trusted to the burgesses by their charter are much rather justiciary than governmental. But municipal life grows in- tenser and more complex ; the court has to ordain and to tax as well as to adjudge, and it is apt to become a council, the governing body of the borough. Then, as trial by jury pene- trates the boroughs, it sets up an important change. The old pattern of a court with doomsmen who are there to declare the law gives way before the new pattern with jurors who boar witness to facts. In the town, as in the realm at l;irgc, ' court ' und ' council ' are slowly differentiated ; the borough court becomes a mere tribunal, and by its side a distinctly conciliar organ is developed. This, however, except perhaps in t.'xceptional London and a few other towns', seems to be rather the work of the fourteenth than of the thirteenth century*. The ]>ower of acting in the name of the borough passed little by little from a general Jissembly of burgesses to a courifil or ' si'lect body'; but even until 1835 there were towns, and towns with lung histories, in which all the most iinjjnrtant biif-ine.s.s of the corporation had to be brought before a meeting in which every corjjorator, every burgess or freeman,
' Gro-iB, (iild Mcrcliant, ii. 11.5.
^ I|iswich Domcsilay, p. 107.
' Kor LumloTi, nee Slulibs, Const. Hist. iii. § 809.
* rerhiips \\i- may hiive to dinlinKH'sh casws in which an old body ol dcinm.siiion i.ir lawjjien ilcvelopsi into a council from others in which a council is newly an) ilelil)rrritely instituted. In Germany the relation of the Staiitral to an older Sr}i']rTi)ik-(ill.-;i ]uin been much discussed. Sec Ecutgon, Urnprung der doutsclieii Stadtvcrfas3ung, 218 fT.
42—2
660 Juritdictvon and Communal Affain. [:
mU-
hftd ft vote: snch vma tho osh at Windicsier, Cunbridge, Ipsvich'. In the tbirtecnib ooatary we waay timed mispect thai gnintii, nrdiiuuiow uxl ■gmoMnti to vlU * the burgesses ' or ' the community ' mn tud to b« putaM mm Bot have been aaoctioDcd by nny gooeml wicaibJy ; ImI tkii should be no more than a RUMpidon until it oan be in the history of the town that is in quMlioo*.
(vii) By-lawt and S^f-ffovtrntnent. Tbe ehiiew d> expressly gmat any power of U^pulation ; bot no dovbi * piwer in %'nrying degrae* wa» often exereisvd : — tn Taijjyg dbgieee, for however Uttlo distinction the law might mak* this rpsp<^t between boroof^h and borough, tb«n nttit been a mitrkt.sl diffrrcnrc in fact botwoen tbe ei^ of Lo and some iimAll markct-town which had just attaiord to befgU imnk. Not that wo can nt nnce aaeribo grwUr pomss ce ikt wealthiest towns. On thi* rontrnq*. in the potty boroo^ vImw goToming court wan Rtill the court of its lord, the lord with kha aaent of his cotirT. would otill bo able to make ordii as oBirily ut, with thu aMwnt of hia oonrt. be eenU ordinances for hta rum] nianora. and tbo validity of soofc would often pan unquevtioned. But ru nn eofranekisai grew in trade, in wealth and in population, jtn ibUc wonU be tempted ur compullod to enter on tfai! rt<galatiaa of sftne which had no oiistence in laM busy plaeea. Its ' owUhm * had been guonintced to it, and the function of deebnMg coftoie could not always be nmrkrd off from thai of impoaiitg aev rules. In London definite IcgtslfttioD baglM al an oariy twa In 1189 Pitz-Alwyiie's Aamxe was ivued tt has bean wel called the oarliest English ' Building Acf^ ; it 'i^'pinp provisions about the housen that neo may ered A similar finlinancc wiu iwuM in 1212 after a groat lire, and il did not scruple to fix the rote of wages for msenni tilan and the like* Thenceforward eaUtioos oUsflnpto
* llute. Corp B«p. 1925. vol. it ^ *M (Wlsillwh f. NO vtwra Um gotmU wwRnblj' bwn Uw asm of Bsi^asl*t{ wL fat. ft. BSi (CObWUc** 1 ^ MM (Ipnrteb).
■ vr« mwl osnruUjr ilUti^Mi trtmie (■) ifaa In Irpwisl if • mmM wilbia lb* bwvMuria hiAj, wU (») ihsilfcuaKilliiii rf ■ fcisHi^ mJ U ^ !• nwU. Iiiimailii bo4r bus tk> mam wt h^iMlsili Of Ik klM -Vi-^- «• ■ksU iVMk bdo*. Tkeaffa balk pvoMMs My m^ to ' o^pnlv.- iWy w* T«7 dtffwmt For Um Iowa eoeaaBi if ■■!. sr^ mm Omhs, T««a Uk ik MSfl.
■ MaalA. OUah. L pp. kxx. tl9. • lUl B. I
CH. m. § 8.] The Borough. 661
J46] made to regulate the price of commoditiea and the business of the various crafts. Now it is the poulterers who require atten- tion, and now a code must be issued for the saddlers or the cordwainers ; and then again exceptional privileges are conceded to foreign merchants ; such a grant, for example, is made to the men of Amiens, Corbie and Nesle, for which they are to pay an annual sum of fifty marks towards the farm of the city*. The mayor and aldermen of London seem to conceive themselves to be endowed with almost unlimited legislative power over the whole province of trade and handicraft. And no doubt their ordinances were obeyed. The individual citizen, the individual ' foreigner,' dared not quarrel with them.
For all this, however, many doubts may occur to us touching Limito to the limits set by common law to their powers. Over against powen. their wide claims we must set the wide claims of the king. Now and again some knot of traders, which thought itself oppressed, would be rich enough to stir the king to action, and when the king takes action even the City of London is apt to look powerless. In Edward II.'s day a dispute broke out between the civic authorities and the body of fishmongers on the one hand and certain fishmongers who did business at the Fish Wharf on the other'. Ordinances had been mjide pro- hibiting tlic sale of fish by retail at the wharf. The king was iiidiiceil to (lisputo their validity. Much was said about their g(Ki(l and had effects; but the king's counsel took high ground: — 'The city of London is the city of our lord the king, and of his demesne, and it is not lawful for the mayor and commonalty, nor for any other, to make any oixlinanccs in the said city without cdUKulting the king'.' So, again, at an earlier time Walter Hervey, mayor of London, had issued ordinances re- gulating the affairs of various crafts and affecting to confer on the craftsmen pcjwer to make yet other rules for their trade; but the validity of thene orrlinanccs was disputed, not only on the ground that the aldermen had not been consulted, but also because the regulations favoured unduly the richer men of the crafts*.
During the jieriod now before us the common law does not Enforce- come to close ijuarters with municipal by-laws; it is rarely, if by-l»wB.
.646] ever, called upon to uphold them, for they are enforced in the
1 Munim. Oild. ii. U. ■' Ibid. ii. 395-407. ' Ibid. ii. 405.
* IliU'v, ClironicU's of Old London, p. 171.
662 Jnrisdictioti and Commutud Affair*, [i
lUd
mtmicipal courts by tbooo who made them'; H b nrrijr aSkd upon to condemn thorn, for be most be both * bold hkI « ridt eitu«n who will call in the king ogmiiut the dty. And m we obtAin no jurijiprudenoe of bj-knv, &o for their validity.
The one thing that we can aay with eone oertai&tj ifl thai in theory no one in En^and can claim to legialat* saka tbat power haa been ^vea him by the king — to eay ftnthing of parliament. Those who olaim to make by-law* must thorn ih^ sooh power has been jpran to tbera by royal charter, or elM tbay must show (and thi^ they will hardly prove lo the *»*'Tfrn1frw ef the king's juvtices) that they hare been cxefOMiQg il ftwk time immemoriaL On the whole, we may doobt wbellMr ia tikt majority of English towns much waa doiM by way of that might not be represented as being no more neoenaiy definition and development of ancient costoaia daoeot penon would consider himself aggriawd if Sk edge was gireo to old mica directed agaiort tike widEV^M the ' foTPstAJl^r' who enhanced the price of victuals'.
(viu) Mf-Uuing powerM. Powen of '■*^»***' an axpreasly coooBded by the eharteni of this s^ and Ibcgr hare been confined within narrow Umita. If the wiflhed U> repair their walls, thetr bridges, thoir sknsAi^ Ihsy had to apply to the king for a grant of rnmaga, pnnTnga «r pavAge : and mcfa gmnta were not to be had aa nistlrw «f ooone* In Edward I.'s day the petittoa eame bsli^a lk» royal couneil iu parliament, and the * local mte,* w« wa»f my, was frequently a ' parliameDtary tax ' ; bat as tike king had doI
rieh d«M
1 IfDalm nudli. U. SM. Tli* ditiaoi^aw olih* FUh Wteif mftl^^v esa t*t so nAiwm in Uw dty eovrli liar MMtr aitswitai ' mmM aMMia « ■weon Is k dit« dti.*
* 8h UmI Mm* of tb« Cram. irf. tt7. let m mM^ hMisii U tJU ite »B of Wnwitir eoalHB lo hsvtag *pn^mi' Ifasi ae aaa tk^ mM fMnfc Mm Ik* boot «( prtBH. At Morwleh tWn mittd W m Wytiv m mmm nnlll t>ii> Un ksd raac for 4h» mam ol oar U^: HmrmHh <^rtiHiL •- It TIu Ipawicli Pwoiwdsj eoalsiafl a cood bmii; mim wkiok ■•• mM M t* ordsfaMd kj Urn aommannUy. Ihoo^ u m •hok ii «a* m^mtaA m h tl^t^mmt of suiilMtCMiaaw. It «m lo onatala (p^ M| • llw ls«« aal aio^M af ite wm SI the WM ooaU U «« telh {• jriv fw fM tei k«
>aai 10«: ih> dUsMH of gMwfcww^h !■*• WNa iwmi 9m ¥m yi tijeaa tlM Uow fw «iilah U •» ti«aM h> iIm». I« UM • m s W pTBfacTwJ by Iho MSM boT^iiiM fa wtewi ly Hw Ufi ■sktkKi.flk
CH. m. § 8.] The Borough. 663
yet lost the right to talhige his boroughs, he could permit them to tallage themselvea ■ The royal nature of the power to tax is well illustrated by the loud complaints which come to our ears from almost every ward in the city of London : — The great men of the city have purchased charters exempting them from tallages and thus the burden is thrown upon the smaller folk. * Not just once, twice, thrice or four times have the mayor and aldermen set tallages upon us without the special command of the king or the Eissent and consent of the whole community ; they have spared the rich and distrained the poor, to the disherison of the king and the destruction of his city'.' A certain power in ' the whole community ' to tallage its members, these London citizens are willing to admit, but how far they would have allowed a majority to tax a dissentient minority is doubtful. The heavy imposts to which they had recently been compelled to submit were occasioned by the fines to which the city had been subjected owing to the share which its citizens had taken in the Barons' War. Speaking generally we may say that tallages, lines and amercements imposed upon the borough from without, were (together with the murages, pontages and pavages which, if not imposed from without, were at least licLHsed from above) the main causes for municipal taxes.
The borough community had few other expenses to meet, Borooflh it wiLs nut a,n ' improving corporation ' with hosts of paid ture. s^.■rva^ts^ The individual burghers had to serve as officers, as ci>nstablt_-s, ale-conners and the like, or find and pay fit sub- stitutts, while .small fees taken from suitors in the borough ciiurt, or from the youths admitted into frankpledge, would strve as a remuneration for the town clerk. On the whole, the bur^dier'.s duty of pnying 'scot and lot' with his fellows cjune huiue to him chiefly, if not solely, as a duty of contributing towards sums exacted from the borough by a ' not-itsclf,' and the quthtimi its to the legality of rates made for other purposes *>is] was scidtmi raised^ Had it been raised, the recalcitrant
' H, II. i. 40lt ff. e^pfcinlly 411. There is a great deal about thin matter in the Libor de Auliiiuis I«.'j,'ibu3, See also thu complaint from Northatiipton, R. H. ii. -1.
- Hiiwtjvcr in \'2'M t)ie Loinloners )ia(l alrt.'ady been 6ngR^e<i in making a ctindiiil to Ijrin^ thi; Tyburn water to the city ; Muuimenta Ciildhallac, vol. ii. p. Gli.
'' See the pLtssa^ei? descriptive of scot and lot in CirosB, Oild Merchant, i. C:i-o9.
664 Jurisdiction atxd Communal Affwr». [bk.
burgbcr would have found do &voQr in lb« boroo^ acmA, wfail« an appeal to the king's court wju only open la oaa vW coultl aflbrd lu begin h small civil var agaimt hU BoigMMm But even the city of London thought fit to vbtaia 6mb Edward II. an expreaa power of unpodng taUagw tur iu ora uae>.
A largo part of the borough's rovcnue wm ikrivcd ftcN tolltt, if wc UM that tenn in ita UrgestMoae to indudc pontage, lastagp. (rtallagc, bothago, ewage, tniCMgv, wearnge' wad the liko. Naturally a borough rammunitr intruttBil vilh ikt farm of tolU was tempted to impoao a atrinj^t aad proUrtavt tariff: its ideal of n perfectly *frc«* trad* waa an unfimtlfd power to tax other [leople. Nevertbeleai we may ilnobt whether it had any right to create now tolh. Tha efaarg* U levying new tolls is extremely common; and thoie agatatl whom it ia brought miem always ooDoernt!>d to deny that Umsv haa been inQ0\'alion. The laud, it must be rcmrmborad, «■■ full of private lords who were toll-takors. and tbera cuuld be one rule for them and another for the banmgha.
(IX) The Gild Merchant In a Luge ntunbed* of lowna of the privijcgctf that hoa boon grantod to tbo bargaMDa and beira ia that of having their gild merchant or marlMi gOd. wa atttmipt to expand the briof phraM uMctI in tha efcartar aeom brought to aomo such nault as ihu following: — Tha givea to the burgeafos a right to form or retain an for the purpose of eniptuying tij the be«t advant^v tlhuM morcantUo immunitiua which by nthnr wocda of his dttrt*' he has oonferrt'<l U[h/U thrm. They arv to ba toU fnm\ lh«y may organize thenuelvea liar tha parposa of maiateiaiw Ikii freedom.
A detailed flt4>ry oomes to as frnva Ipawkfa. In 1X00 King John granted a charter to the bgrgnsaia ; they war* •• b^ Uio borough in fee fium ; they w«r« to be ^\a^X of loO and al similar dues throughout the king's Unda ; they »m nol toi W impleaded ouUude their town; they wef« to hava tliair giM mncbant and their baose; they ware to eUet two fit naa la keep the reeveahip of tbe bormtgb ; tbcy w«r« to elect bar oonmen. Thereupon tbe whole oonuimity met in tke chsn^ yard and elected two baiKffii and four oonoan^ and unhiiMJ. as we have aaid before, that there should be tvalva aUaf 1 Maatak OBOl *«L M. ^ m.
CH. III. § 8.] The Borough. 665
portmen who should guard and govern their borough and give its judgments. Then on a later day the chief portmen were elected and sworn. Then the bailiflFs, coroners and chief port- men held a meeting and resolved that an alderman of the gild merchant should be elected by the community and that four men should be associated with him and that they should swear to maintain the said gild and all that appertained to it. Then the whole community met again and elected an alderman and four associates, who swore faithfully to govern the gild merchant and faithfully to deal with all the brethren. Then the alderman and his four associates in the presence of the people proclaimed that all who were of the liberty of the town should come before them and put themselves in the gild and give their hansc to the gild. Then the bailiffs, coroners, port- men and the whole community took counsel how the gild might best be maintained, and they decreed that the alderman and his successors should have a monopoly of gravestones, pavingstones and the like, and that of the proceeds of this monopoly he should render account to the bailiffs and coroners*.
Thus, having got their charter, the burgesses of Ipswich The did proceed to form two different organizations ; there is the gorern- governmental and justiciary organization with its bailiffs,"^** coroiioi-s, twclvi- chii-f j)ortni<'ii ; thf-re iw the gild organization '*o™°r1'- with its alderman and his four associates. Certainly the two art' closely cojiiicctpfl. The gild is to bo no mere private club. Evrry burgess is to placo himself in the gild and pay his hansc, his entrance fee, to the gild, or otherwise, as we gather, he will InPf some at least of the advantages, notably the mercantile aiivaiifafjes, that the words of the charter give to the burgesses of Ipswirh and their heirs. No doubt it would be imprudent Were We to base any lar^'e generalities upon a few cases. Not all the charters of even date are exactly like the Ipswich J-'*] charter. Thus in tli<' same year the same king granto<l a charter to the men of fJhmci.'ster. In this the privilege of not beinjr iirijiKfided without the walls anrl the privilege of being tree of toll \ven> expressly confined to 'the burge.s.ses of (Jhnicester wlio are of the merchant gild'.' In one place the merchant gild may have been of inure, in another of less imjiortance ; in one place it may have b<'comc in ])ractirc, thou^'h Iiar<lly in theory, the governing btMly wf the borough,
' (Jro.^^*. Gild M.rcliAnt. ii. 11.'>-1'23. ' Ilot. Cart. Sfi.
666 Jurisdiction and Commwwl Affmr$^ [bk. U.
while in aDothcr pince there wu no nich gifc) »! »U. la London itsrlf iracus of » merchuit gild we, to wmj tbe I«mL Tcry faint, wbilo Norwich vtand* ovt w «D otaaipl* of tW flourishing cities which to all seoming mtot had a gild'. The mercantilB privilcgra granted to the could bu maintained iwd enforced without toy sudi tion, while with tho public jiiNtica and polioe of the boromih the gild aa a general rule had nothing to do. lo banvgb which had a gild merchant the bargeea waa DOi ntetmm^ • gildsman, tho gildnnan was not neeeaaarily a hiirg—
Tho main nhject that the gild nMnrhftnt haa to now i* the maintenance of the mercantile pririlegoa thai have granted by charter. This ia on important and matter. A few merehanta of the town go to some dtftant bit or market ; toll in taken from them ; tho lonl of tba fiur, tiM bailiffs of tbe rival city to which they have goiM, aooff al thw ohaiten, or temperately and rea»>niibly art charter againil charter and seisin against seisin. In such a caae a c^itarj tiader far from home needs all the help that hta fldloiia ota give. And they are interestod in his cause, for ooea Ist ft be eslablinhed tluit the bui;g«nea of JT am in Mtaia of talnag loB from the bufgesaee of F, then only by litigatioii. if at all, wiD the burgoaacs of Y ntoottt mmn of their immunity. If the privilege is to be preserred intact, the indiridaaJ mtrdhnl muHt bt> backed by a coinmunitv nf merchants vhirb wiH laks immediate: uctiuu, which will otimplain to the king aod anpfMft its complaint with a handsome gift, or which «iU lortfcvilhlHV make reprisals sgain^^t the aggreason. To make rvptiaala Ihiy are encouraged by tbeir chartera It is thus fiir example thai the king speaks in his charter to the men of OlouniXir — m$d limilar claosea are not uDcommon — 'And if any oaa ta nv whole land takes toll from the mea of Uloveeater of Um giU murchntit, and nhall rvfiue jostke^ (be Aeriff «f Olumjaila flhiro or the reeve of Qlonccater shall for this takw a mam al Oloueesier'.' If a gildsman of OkftMoMKr bn sabjwtcd la toll another town, the men of that otbar toiWB had hatter ttot
Joom. Tol. %M. p. tM. 9m tUo lit Ko«tif«faui. i. ISt. TIh IpMTUh D0BMI47 Os ijOi haA noUtloc to do wttfa > BM. Cwl. 67.
aiii««va.
CH. HI. § 8.] The Borough. 667
their wares to Gloucester. The merchants of the borough must be organized in order that this inter-municipal warfare may be conducted vigorously and prudently. Both vigour and prudence are needful ; all those who are not exempt &om toll should be forced to pay it, while it is perilous to touch those who are exempt. In order that their action may be both prompt and deliberate, the merchants must be organized, must constantly meet, must have executive officers and a common purse.
Still these mercantile privileges are not of equal importance The did to all the burgesses. Many of them are not traders ; but few buigenes. of them will carry goods to distant markets, though those few are likely to be rich and powerful. Thus the gild organization may remain quite distinct from the governmental organization ; men may be burgesses who are not gildsmen. On the other hand, it would certainly seem that rightly or wrongly the gildsmen take upon themselves to receive as brethren men who are not burgesses, men who do not live in, who do not hold property in, the town, but who desire to share the immunities which the traders of the town enjoy*. Thus, though according to the terms of the charters ' the gild merchant ' is a liberty, a franchise, conceded to the burgesses, the gild comes to be a body of persons which does not include all the burgesses and dou.s not excliidu all who arc not burgesses.
Furthtr, at kiist in some cases, the gild merchant evolves The gM out of itst'lf a cuurt of justice which exists beside the law *^ covirt of the borough. This can hardly be provontod ; the craft gild.s of Londtni evolve conrts of justice, the French and S2] Gernian merchants in London evolve courts of justice, the Kariied universities evolve conrts of justice; there can hai"dly exist a body uf men permanently united by any common interest that will not make for it.self a court of justice if it be^ loft ftjr a few years to its own devices. The gild-brethren at thfir ' uiornin^^f-speeches' do not merely take counsel for the niaintrnance of their privilegrs and the regulation of their trad*', but they assume to do justice. In the first place, they decidi- tpK'slions of inheritance and succession. A person ',s (jildn, that is, his right as a member of the gild, i.s treated a** an objirt of ownership. With the consent of the court a man
' S*.f tlic coiiiiilnint ii;^it,iu3t the eoniiiiiiiiity of Lynn; R, H. i. 4C1 ; aliio tlic coniiiluiiU iigiiiiisi ihu iiitri uf Bt-dfurd ; P. Q. W. 18.
C68 Jurisdiction and OmmuAoi Jffain. j^iBK.
Dm
bOMMlb
Inttdiiv
Ji«rflH|^i
tnny give it or sell it If he dies poMMMd of it. thai U vil descend U) hu heir. And to nt the monung-^pmcH one p«BM will cumc and demand ngoiiuit auotber tho 'giM* of * dead ancestor ' u hiti right oiiil inheritanoe,' luang tbo vmy tarm «f wordii by which he* would have dcmandod aaoeati^ Uada Such disputes, such actioni we must call them, tha (il^ men h«ar and dctc-rmiue at thoir mocniiigHipMdMik Bift besides this ihay cntertaio actions of debt and oovtnaal taA tnepan, and hardly dare we call such aaaemUicfl OMra amxU of arbitrution, for they con vnfarce tfacir own dacraaa; if it cornea to cxtremitiuD, the contumadoua bcoUb«r can b« #■- peUod. Tho right of eaoh gildaman to daim m ihara at bargain that he aoes one of hit fellowi nialriag ia anothar fur liligation*.
Such in brief were the main fhuichieoa that tb«> enjoyc<I. and tbeeie franchiaea, aome or all of Lh«m, macki borough to be a borough. Thia gave the king a tight huU upon the townsfolk. The group of burgoaws wh a franrfciai holder in a land full of franchiip-buldera, and bad to aabaut la the ruloM which guvcniod ihc other puaaeaura td roymi righla. It might lose ita privileges by abuse or non-uie; it mighl them by not claiming them before the jiuttoea km t^fT% in thia case n muclcrate fine would procnre their Four timea at Itmst within eteveti years did Honry JU. i the city of Lund-^n iuto his haada» oooe * far rscaiTim Wi Bnrik'r without wnmmt for to d<MDg,' unoe tuirarwi of a Ub ^ judgment in the hiu*tiDg», uuoe bocauw the dtiaena pnrviataJ the mayor and aldermen from diamiiwng oartain naaltc^i with the kingV justice*, and oooe beoaow the awian of braad aad ak was nut kept*. No doubt Heniy waa ^raanical and graa^. bat theee eeijcures show bow weak was the moat po««rAtl af aO the English citieflL Then Edward L kept Loadoa far a^ years « ilhout a mayor, and during thia Liro« ha liipBlaliMl far it in royal fiuhiun : — ' U Hoy toH.' such ia the bnauh by «h^ by-lava are made*. And the king'a innuasla aaareiMd ««t ihi aeoreta of the bonmgh ; he waa not to be |i«l off with lh« iMj told by the rulera of tbu CMomnnity. If he deaitvd to
I «M la Otom, (HM Mochaat. <d. U. ud« lafciw. <MUiM. TsteM 1 bIw B«arav of Uiewtar («d. B«*Moal pamim, t.^ |i taa • BIkr. CbronialM, p^ U. U. 1«, tt ' Umim. OilSh. 1. Ul ff. i ••• wyiihWy pf.
CH. m. § 8.] The Borough. 669
what bad passed at Lincoln, be heard one jury of the great, another of the ' secondary,' a third of the ' lesser ' folk\
We ought now to inquire whether the borough community cnponto differs from the other ' land communities * in exhibiting all or ^^I^*" any of those peculiar characteristics to which we make refer- iw""^ ence when we speak of corporateness or personality. And at manUj. once it must be confessed that in the scale of ' towns * which begins with the common village and ends with London no break can be found. This does not, however, absolve us from the inquiry: black and white are different, though nature displays every shade of grey.
The doctrine that some act of public power is necessary if a Corponta- corporation is to come into being had not as yet been accepted, bertowad Probably we must wait for the fourteenth century to hear a tej?" king's advocate proclaim that the burgesses can not have a communitas unless this be granted to them by the king*. As yet the charters contain no creative words. Nothing is said, as in the charters of the fifteenth century, about the erection of a ' corporation ' or ' body politic ' ; nothing, as in the charters of the fourteenth, about the formation or confirmation of a cqmmunitas'. The communitas is already there; it may want privileges, but it exists. The notion that there is some ' feign- ing ' to be dune, some artifice to be applied, has not as yet been rccuived from the canunists*, and perhaps we ought to regret its reception ; the corporation which exists ' by prescription ' seems to defy it or to require that one fiction be explained by anuthur^ Tho foundation, however, is being laid for a rule which will require a royal licence when a new corporation is to be furnifd. This work is being done partly by legists and deerutists, who are discussing the collegia illicita of Roman law, partly by English statesmen. The king had begun to interfere with tliu creation of new communitates, with the creation of voluntary associations or gilds. Such intervention was dictated
' R. H. i. 309-15-22.
' p. <;. W, 18. See the assertion of the Abbot of Bary, Oroas, GUd Merchant, ii. 34.
* Sco (irofls, Gild Merchant, i. 93. * See sbove, p. 502.
* Must we Ray, for example, that the University of Cambridge (which is a corportilion l>v pre^^cription) in fuigned by the law to bo a person, because the law first fcisriM that by some charter granted before the time of Richard I. some king ."aid ill I'fli'ct that there was to be this fiction? That thia story would contradict some known facti^ in the history of the University secma the least of its demerits.
670 Juri$diction and Communai A^ffairt, [i
by
theory of pfirwnaKiy,
dftb*
bogroogh
MB-
'junstio nccewity. by political mpedieoee «nd 6111 trouble ; they may beoocM ftggrc ^pe. 1%e LondooeTB from of old arv a cummaiiity, htX tib^ mii«t not forni m swoim oumnuuui unloii Um kia^ *Ada]kcrinG gilds^' niut be luppiaid for nuch tbc reoBon u that which dicrtxM th« deotmctioo of *»d«ll fiftlw' Bflaidos, btf« Uea a not disraputablD mnmm at U«& will pay for leav* to form duha ; and it ia to be bered that the medieral gild ii oeirar ooottnt with tlia pmlf private position of a modem rlnb, but aapixva to esorciBS tamt juriadicitiia and ooorcive power uver ii« luemhen. and firtrtirr over oataide& Thoe the notion ia propagated ihat gfld-fiki atructiiro must not cxiat without royal bccnee. and ihia at a timer when the strocUiTe of the bui;geBBtc oomnanity ie aMi> ing a gild-like ahapa*.
For that w bnppcuDg. Th« idea of Toluntary was moulding the oommnnity. In tho gmat biiroiigha sums of money were tubacribcd in order that prinkgaa be bought from the king, and the subeoribtng towbaCDlk aai«n% oooceived that they purchased tboee pririle^ fcr IhiiamlTM Some definition of the privileged, the IVaoehiaod, body «w neoeseary, and yet in the great boitwghs that budy oould tu assume any of the old aeoostomed fonna. The Ude or thf yardUnd could no longer be the groundwavlc of Even ibv freehold tenure of a hoase woold not serw to the line, for leasee for years wen beeoniqg fcrfiin—bl 1 la the big townsL The gilds, aspeoially pscbafa Uia gildi «f merchants, set ao oiample. The commoai^'of tiuijlsii k a ToluntAQ' AMociatiun. Some men, it may be. have « ri^t le join it, while others hare no such right; bat evany of it has joined it by a defimta acL He
> 8c«bta.CoaiLBiit.I.4M.
« Bran Uw ItiUui ]mwym, wfaow fcHiliiw al m iUm b«. SN ladiMd to ^mH Mm! Ihn an aviaia kMi if |ianttU«d bjr Uw soMfml k>. maA «UA IhaAii mt viUiout moj BpMul tieaosi fraai th» ralar. Tb*
iU«ad w givM) in aihnim tad I7 fBHtil U* it Mittla UnOM* «b)Mai. 9m OtetW. D. O. R. UL I MrtudBtMal Oat lOmmrpmaH itintlr «■ h> MINI.
CH. III. § 8.] The Borough. 671
community, been admitted to it, paid an entrance-fee, 'sued out' or 'taken up' his liberty.
A step is being made towards corporatenesa. The borough kAy^im^^ begins to look somewhat like a religious house or an order of g^gwi knights. Just as the monk or the templar becomes professed of his own free will and is solemnly received into the order, so the new burgess enters ' the borough * (not the physical borough, but an ideal borough) of his own free will and is solemnly received into the community. If the monk took vows, so did the burgess : at Ipswich he swore upon his father's sword to maintain the freedom and conceal the secrets of the tuwnV This process of transformation is still exceedingly obscure'. Besides the influence of the gild, the influence of the sworn comviuna of the French town may be suspected'. But also the freedom from toll which has been granted to the burgesses may have played an important part at this crisis. The towns- folk perceived that they had enviable ' liberties ' which were communicable to others, that they could, at least for some intents, make burgesses out of non -burgesses, that by so doing they could raise money, and that within limits which were not precisely ascertained they could themselves define the class which should enjoy the chartered liberties*. The task of tra- ciii<:r this change must be left to those who can afford to treat each bormigh separately, for doubtless it wont further in some towns than in othei-s; but it helps to transmute the idea of burgherhood.
In c-Murf<e ai time a definite right to burghcrhood is estnb- TbetiUe lisheil. Though there were many small variations, there wa« ["^V'"8liM'- ultiniati'ly among our greater boroughs a remarkably unani- mous agreement tliat this right wa-s communicated by a father to his sons, oi- at li'ast to his firstborn son, and by a nuiater to his apprentices. We have not here a case of inheritance, for the son niay claim 'his freedom' in his father's lifetime; but
' Ipswich Domps(la_v, p. 123,
• Kiir tlif panillil proct'ss in Gcrmnny, see Giurke, D. G. R. ii. fi92. King Jo)in hml liecnKrii tlie swiirii coinnmiie in mauy French townH ; see Giry, Ktallli.s^^c^u■lltrt \\e RoUfii, paf-fim.
'■* It f.iTiis highly iinjirubiililo that tho nfttli to niaiDtaiu the liberties of the town wii.s dcvilojiLi] i.iit nf tin.- oath of allpfjiance,
* Sri,- ttir i.'arly instances from Ipewich in Gross, Gild Mercliant, ii. 123 ff. St-e also Ip>\vicli Domesday . p. 1 '>.') ; Norwich Customal, c. 36. For a conipliiiul of tht; sale of citizenship in London, ste K. H. L 405.
672 Jurisdiction and
Affairt, [i
borooKh chaiicn.
the* cummuiuty continues it« uiistoDcv hy rirtDv vt ma Ukdi* dualistic oomm a oi cation uf right hj oii tilU to a n»w mmabm; Tho right secuns tu fluw downwards in blood mnd cnft. U curious idea and has not been nubjectod to the carelu) ecptofc" tion that it dowrvos. DtspiU it* imiTamHtj. we nay, aft leaiit aa regards bho a]>pr6nticet, doabl its groat antiqoitjr, aid should not bo surpriaed if it hnd ita origin in a ivactiat wbiek exacted from thu son of o burguM a smaUor cntnuoa-fca Ihm was dcmandud from other a[iplicnnt«'. Wbon and vfanv tikis right to burgherhood was established, the |>rirttciged bndjr might become by di^rvos vorj' different from and nneh aMalW than the sum of the sabatanttal men of the towo ; bat w« hm* little raaaon to suppcou that during tho age at which ve an here speaking this effect had beoorae pronioent No dovbl from the 6rBt there wore in tho town manj people wh« ««■ not duumcd to be 'burgesses' or active and folljr qoaUsd members of the communitjr of th«r Till There w«>« wsaaM. sons living with fitthers, menial aerraata, appnatkas: n a W(»d the * mainpost ' of the burgeosesL Pevaoas of tkia a«( there were in every community, in every towoshipk Nor iuipoa^ible that some otbem wer«.> left out on the soore uf poverty: ihi'y hrui contribalc'd nothing to thoae heavy which were the price of the charten, and coald pay do f(to to the roromon ohest It in lilccly that from the i nini^ast period our ancestors were fomilior with the ide* thai a oIb« of men may be within a commuDiiy and yet have xm right lo share in the conduct of its affiura. Sticb probably vsa the position of the hordarii and coton't in the riUagea of old tftae'. This idea bore new fruit in the boron^ ; maoy mtn aught W within ibo community of the town and yet have bo voio ia aay btngensio asaembly.
These changes take place in a darfcosaa which is oailfaas* nated by legal theovy. Legal thought and l^aJ phrasi* «s^ to bo lagging behind the GMto, If ws examiae the ftm of a
1 Bnaillmi a dbarttr bulgii pdfflapM «a «b* ms sf ■ hmg^ la h*
IklhK^UMM; riif-frirMlli Irtinfriil rf^nilwll t1. H. kv* ainbwNiBiilil,M. OoiiiywObrU.P.O.aa.S»ft; —JIIimIi rfl^w^
* Tbaj wen Selmtiftmamtn, bal not Vsttgi So U Ite Ommam mmm
■km wOl U • pMrivi buslucs,* »arttr «Ium JtarywmAi. «» (Ma^ O. A K.
U. f»0. 'OS. TU pcHltiM of Um grfialMi la lU i^tmif M Biholan U daOsf.
I of tkia a«t^i ip^ Nor b i^^l soore uf Ihsi^^l baavy sua V DO entiaiMw
CH. III. § 8.] The Borough. 673
borough charter we see that the king or some other lord is conceived as making a gift of franchises to 'the burgesses' or 'the men' of a certain town 'and their heira.' But in what mode, we may ask, does this gift operate ? (1) It may possibly give to each person, who at this moment is a burgess of the town, a several right which he will enjoy in severalty and transmit to his heirs. Or (2) it may confer on all the now burgesses of the town a right of which they are to be joint tenants or tenants in common, and may thus institute some kind of co-proprietorship. Or (3) it may be placing the right in some corporation or group-person in which the burgesses of the town are organized and unified. And if we have to consider 167 1 rights we have also to consider duties. 'The burgesses and their heirs' become liable for the farm of their borough. What does this mean ? Who is liable to pay what ? What goods or lands can the king seize if the rent of the borough be not duly paid to him ?
The difficulty of these questions will best be seen if beside i>Ucn»Bion a borough charter we place three other instruments, very charten. similar to it in form, however different they may be from it and from each other in substance. The Abbot and Convent of Malmesbury declare that they have granted a certain piece of ground at Pilton near Barnstaple 'to the men who have taken it of our hoiiKu — our cell — of Pilton for the purpose of building houses, tu hiive and to hold to them and their lieira of our said house of Pilton by rendering to the said church twelve pence yearly from each burgage'.' Now in this case we can hardly doubt that the rights given by the charter arc rights given tn each tt.'n:int scvurally, and rights that he is to enjoy in sevundty. He has takL-n a plot of building land and is to hold it heritably on tho terms of burgage tenure, though Pilton is not, and is not to be, a borough. There is to be no corporation; nor only so, there is to be (so far as we can see) no co-owner- ship, no cuiiiiuoii L'ujoynient. We turn to another case. King John would liave it known that he has granted to his men of Cornuail that certain luooi-s shall be disjitf ores ted and that the sai<l nu'n may hunt thereon; also that without their consent their serCs shall not be received into the liberties of the king's boroughs; also that the tees of the honour of Mortain (whi<Oi are suialT) shall not pay the full rate of scutage. 'Therefore/ ' li«^'i,-.o. MiilmcsLiif. ii. ;j-l. » See above, p. '2'h.
P. M. I. 43
674 Jurisdiction cnk^ Oammunrd Affnim Tfir li
ho
says.
wo
will tlttltlMaiid
tthnll hold nil tbo pnmiMi of n •aA ttttr hUtt' and free cuctooM'/ lite third chut«r to which *» vould mk attention ia one by which this sarae Kirif^ Joho mtd* % gnat Up all thti frco men uf Kugland and tlimr bein ; it u no olfca- than what will be known for all time aa liw OrvftI Cbartis. At the end of its (kmoufl cUnses we read how aJI llw moa vl Knglnnd «rv to have and to hold oortoin Ubectiaa to them aarf their huirs of King John and hi« bein for ora:
Now thcso last two inKtmmcnt*. the Conuah diartar «od[y4 Ihc Great Charter, aro in fomi jtut like an onlioMj banagjk Um iriiS?' ohartar. Tbt* king gnuts libertaUa to the men of ^iiUimhiM '*"'- the mtin of (^mwoU, the muu of England and their hntra In
what mode do the groatcee bold the libertiet I Dees aaefe ' man ' acquire a nrenU right to be enjojed in aerenky t O* all the * men ' bocomo teoante in oommoa or joint A^Mn, i» the inic rtwnpirnt of the gniot rorporotiun ' The fonn i>f lh<> (Irvat C.^luiri' no
for the men of Cornwall oom|iol tw to My that thiei q liavu not been bcod. If we lake the Qraat Charter aod wvA out any theory as to ite grantees and the mode in vtooh thgf reeeivcNl tbo boon, we are brought to abmrditiei. The Knglifihraon who would take advantage of iu pmriaaaiw tthow hiuaolf beir of some one who lived in 1216; or, if a of the charter be broken, then either all Engiiihrnen maak f0^ in an action against the oBtodar, or the corpowHiun of Ifngt— d mast appear by its attorney. There mnaloe the that thiN w a gift lu uncurtain pereona, to all and at any time shall answer the deeeriptiun ' maa of the nalm ti England': — but is sncb a gift oonoaTableF
It may bo replied that Magna Carta, whalerer ila fana, ■ in Hobstanoe no deed of grant but a oode of law. Thai b trve . but (he &ct nnaaina that the form of ihia aolann iartraHMtf IB that of a deed of gnuit That waa the ktm whk4 to Iki prelaiet. clerk» and lawyent of tbe time mantd tha meM afa for tbe purpoae. 'I*he king waa to gnmt Ubertiaa to the ■•■ ti KogUnd aa be bad gimoted thorn to the men of CorawaD aorf die men of London. Or let oa look at the other ode of llw fdmilitude: — Hrnr}* IIU if hir granta libertMe le the bm «f Ivultinghun, will cxucuto an insLrumeat whoao jar^
• BaCOvCMOa.
Oartan
CH. in. § 8.] ITie Borough, 675
be exactly the same as that of the charters which he seals in favour of the men of England. This makes the borough of Nottingham look, not like a corporation, but merely like a portion of the earth's surface within which certain laws are to prevail.
Now it can hardly be doubted that certain clauses in the CrUlolBn 669] borough charters should be read as grants made to individuals bono^ of rights that are to be enjoyed by them in severalty. Such, «h«rt«r». for example, would be a clause declaring that the burgesses and their heirs shall hold their tenements in free burgage. It is like the Abbot of Malmesbury's charter for the men of Piltoa Each burgess gets a right to hold his tenement heritably at a burgage rent. ' The burgesses of X and their heirs' is here but a compendious phrase which saves us the trouble of naming many men by their proper names. And may this not also be true of other clauses : for instance, of the clause which declares how the burgesses and their heirs are to be free of toll throughout all England ? Suppose the grant made to the burgesses of X ; a certain burgess of X goes into the town of Y; toll is demanded fix)m him ; he refuses to pay ; his chattels are seized. Now who is wrouged, who can bring an action against the offender ? Has this injury been (luiic to the individual merchant, or to the mass of the men (if X aw co-owuLTS of a franchise, or to the corporation known iis ' the borough of X ' ; or again, have there been several wrongs ? There is good cause for doubting whether the lawyers of this age wore ready with an answer to these questions. On the one hand, we may find two citizens of Lincoln, who have been distrained in the town of Lynn, bringing their action a^Miiist the bailiff of Lyim and relying on a charter granted tu the citizens uf Lincoln*. On the other hand, the plaintiffs who take action for such a cause will often be described as ' the citizens,' or ' the burgesMos,' or ' the bailiffs,' or ' the mayor and eoiiunniialty ' uf the town whose charter has been in- fringed-; and yet we can not be certjvin that the courts would have given one action to the individual tnuler and another to tlir conuiiunlty, and conipelled the offenders to pay first fur unlawi'iilly seizing a niorcliant's chattels and then for infringing a city's charter. Modern lawyers may be inclined
' V. H. ly Kdw. m. f. 0 (Hil. pi. 10); Grose, Gild Merchant, ii. 177 fl.
^ Note ISook, pi. 10, 145.
43—2
676 Juriadictton and (hmmutiai Affairs, [i
WM
a
to say that when mich a clause* is treal«d ai on each individual burgesA it ia treated u oa act of k||MlalAai^ not aa ao act of donation ; that the Inirpeaa who briay iW action is not raqoircd to provo (very poanhlj ho cnoU ant prove) that he van heir to one of the original fknaoa; ihal m raaUty a Uw or an unlinauce has been mad« dvdaring that any penon who at any time fhall bo a citlien of iiwJ»« be quit of toll; but then this difltinotaoo bekwvan lav* grants is not one that wo find in onr recofda.
ThcrD arc, however, othor clauaeii in the bora«i|^ which can not bo thus treated. For «xample, there ii t^ olauM relating lo the feo &nn of the * boroo^' whidk eertuily doee not mean that each burgees ie to boM a certain tktam it the * borough.' paying for that ahare a certain rent tn the hdqg. Again, so for at* wu have obaervtMl, the im)Mirtant dave wUah declares thitt the biugeeeee ahall not be tmpleailed ootaide borough is rarely, if ever, eonstraod to inean thai a right refusing to luiswer in fonngii ooarta is Diafi?rrer] on bu]:gesa. On the ouuUary, whun a baigeM is impleaded k the king's ooiirtt the regular prsctioe is that tba oAchb or * tho buTgosM<M * of the borough should intcrreoe and daiai oognizonco of the cauw, *ir <to use the laagoage of the iimm) *cmvo thoir court and obtain it*.' Ooee moca, if we take maA a finaoohiee as the return of whta, we can not poaably tnmt this n» having boon oooferred on indindnab to be ogsgpid ly Uu'iu in sevMatty. In hom aenao or fTKrt^g' it naaft to the comumnity as a wbola But then in what
Thiit brin)^ um to thr great problem, la the right as iuheriug in many men or in an orgaaiMd gnmp whiek for this purpose an indivisible nrnt f The bMt aMwer tlal we con suggcj<t fur this diffictilt quostion is that the law^iM are tr)-ing lo rtlaiu old fomu of Sfwech and Ihiiaght eod to regard the burgessee as a set of eo^praprioton^ whOe at tks same time they are beginning to know thai the community differs in kind friim all othor ' hmd aud that Itnu't^fii boM ^)C hutd of tha right idea vbeii be it aa um^tniitu,
* Keie Bosh, KM, SU, 189. £77* lee. MS. lOS. Hm Kmm^ a U ftoriim tlut mbmo rngalmnm l» ^aimmi Ut ths «hte «Mrt *» lb* piomMmt iluil U paU bj tba dtbndui, bu. If Im <aa sM fag. «ka»lMrls4B of Um ciijr moat fV- Tfa* «lslB of sogslHaBs te bMi^ m • WMttm vhUh Isflf pMt importuMi ha sD Ihe
gbt eeoKSfwi^^H
CH. HI. § 8.] The Borough. 677
In the first place, they are beginning to recognize the feet Inherit- that the idea of inheritance will no longer serve to describe cessioD the means by which the existence of ' the burgesses ' is per- ^ni^iion petuated. The words ' and their successors ' begin to supplant the old formula 'and their heirs V This is a step in advance, for on the one hand the burgensic community is separated from the set of co-proprietors, and on the other hand it is brought into line with religious bodies. Even this novel phrase, however, is not very good, for the new burgess or new monk does not of necessity 'succeed' any other burgess or other monk. Our forefathers found it hard to conceive that one and the same community can continue to exist unless each new member steps into the place of some departed member. We have seen how in modern times there was within our boroughs an individualistic communication of right by father to son or master to apprentice, and this can be vaguely pictured as a kind of succession or perhaps of inheritance*. Down even to the present day the formal language of our law but ill expresses what has long ago become our thought. A trans- action which would be commonly and aptly described as a contract between the University and the Town of Cambridge will become upon parchment a contract between Chancellor, Master and Scholai-s of the one part and Mayor, Aldermen uiul Bnrgossos uf the others This retention by legal docu- ments of a style or title which seems to lay stress rather on the plurality than on the unity of the group has set snares for those who would penetrate beneath style and title to the thought that is struggling to express itself*.
' An early examplr, from 1225, will be found in Nottingham Becorda, i, IS-- '20: the burgesfleH of Retford and their Buccensors are to hold of the biirgossofl of Nottingham and their Buccessors. See Gross, Gild Merchant, i. 95. The new phraae makes its way but slowly into royal charters ; the chancery waa consenativo. However, for an early example of 'heirs and succcsHors' in a royiil document wee Jolm'a charter for Waterford: Chartae, Privilcgia et Im- munitiiti.'H, Irifh liecord CommiHnion, p. 13,
- Tho iilirase which tells ub how a corporation may 'hold land in Buccession' i-i a mimiescription of what really happens. Littleton and Choke make aome pood reuiiirks about the use of the words 'and their successors' in Y. B. 39 Hen. VI. f. 13 {Mich. pi. 17).
■' Apjjaiintly in Gcrnmny the stylo which purports to grant liberties 'to the citiztiis, their heirs and succcs.-iora ' yielded at what Englishmen must call a very early ilati- to the style which troats 'the city' as the recipient of the chartered right.'*. See Cierki.-, D. G. 11. ii. (527 ff.
* ThiiH, in Hpite of Mrs Green's able arguments (Town Life, ii. 231), we are
67B Jurisdiction and Communal Affairs, [i
liBbUtty
But we mint pftoi from form to salnteooe. Oar hnr Mt difficulty about attributing miade«di of many aoria and kiflik to oommumLioa. Ilia countiear htudfwb and iiiynahi|« an alwaya being fined and aneroad ibr wwugfiU acts md So too the boroughs can be puniafaed. Etoi^ boroogfa England from the city ot London downvaitk 1ms in peril of forfeiting ita chartora^ of seeing ita menaatile laitilaya annull»l, of aoeiiig tla elected magbustiaa dii|iiBoed aad itaatf banded over to the mcnaea of aome royal ewtof orfirmarimm. If Loodonen inaolL the qoeen or take the wioag aid* in tb* Barom' War. the city will have to redeem ita piiifltgia wHfc an immenae aomS If in the town of Derby 'Hi|aiMmi«a' tulls are taken and the membarH of the gild menAanl us nnduly favoured, tho liberties of the boroagfa will be wmmd*. The dty of York cUiroed to 6um the Aiaaty ; ia aupfwH. af thia claim the mayor producvd a charter whicb be of the fourth year of King John ; bat the word written over an enwon. Judgment «■■ giwn that ibe flhould go to primtn, that the charter ahtmld be qoaabad, aol that the citizens should lose all that tbey claimed ibiiniiiMfa' The mayor of Sudwich waa fomid gnilty of —irlim bf mBm of irioleooe certain Mippoeed franchiao* of bii town ; 'aad W> OMae be ts oonvktod of iba iaid treapua, and hananaa is doM by the mayor in matten aflbeting Iba the act of the oorarnunity itaelf. it is adjadgM) that lb* munity of SaodwieJi loae ita UbortyV Nov puoiithiA«Dt of a borough awl the poniabiiMai of a village little differenoe woaM at fint b« aaeOr *ni« ima be fined ; the other can be fined. The lut thai tbe qS the impost will diatribate ilaelf rouc^ moiw aal in tho rural liiatnel than in the bonngb, wbow wealth will probably bo aiaeased, is a UkX of wbiob no need be taken by the ooort which inflicU Um pa«aH|.
tadlaid M tfciak tlM hi tarly luiaMti Uh aqsMMA hj (1) Vm wmiar H hmr$tmm, (I) Hm (Q Sm maim at twyisia tt MM mammtim ttfMi.
■fatti at iImhHbi Aal Qw nayar sod bot 1% M in tboM mjF, *aMtaa la UmIt
> UU«]r, ChniiiialM.p.a<! lim ItmUimn va^
• P. g. W. WO.
> PUdL Abbf«r. UB. * fls*. fclhwi. t/k.
CH. III. § 8.] The Borough. 679
it must become evident sooner or later that the borough community can be punished in a peculifir &shion ; it has liberties and it can forfeit them. It can be equated with other franchise-holders and punished as one of them would be punished if he abused his franchise. Taken merely as unit it can be punished, and the punishment may continue to operate while old members are yielding place to new, whereas a fine inflicted on a hundred dirides itself immediately into punishments inflicted upon certain men who are now living. Sharp distinctions are not to be looked for in this quarter. Even in the nineteenth century a county may be indicted for non-repair of' highways and until the other day a hundred might be sued if rioters did damaged But still the 'liberties' of the borough give the law an opportunity of enforcing here more clearly than elsewhere the thought that if the organized community acting organically breaks the law, it in its unity can be and should be punished*.
In the region of civil liability little advance was possible. CItII The burgesses may ' farm ' the borough ; but an ordinary town- ship may farm its vill*. When the king accepted the burgesses as farmers in place of the sheriff, he certainly did not mean to exchange the liability of a well-to-do man for that of an unit which had tow, if any, chattels. On the contrary, instead of looking to the wealth of one man, he now looked to the wealth p.fifi3] of many. If the rent of the borough fell into arrear, he could l)roco('(l ajTjiinst all the burgesses or any burgess. A common ])ractic(' of the oxclie(|iier was to attack the rich. The sheriff would ho ordered to smnninn wis of the richer burgesses to iuiswor for thu reiit^ This wa.s for the king a convenient procechire. He could exact payment of his rent, his fines and
' Stut. I'j & .'30 Vic, c. 38, The cliiim for compensation io now made to 'the jiolice luitliority' iinil paiil ont of the police rate,
- The talk iihont ' tictitiouH' porsonnlity did not prevent the legiatfi nor, with siimo L'xceplioiix, the cAiionistH from holding that an tinirfriitiM can commit a crime ami l>c puiiiHlicd for it. On the contrary, they went great lenKths in the punishmuiit of cnr|u)nitioii8 ; some of them were prepared to nay that if a civittu commits i\ Lapital crime, fluch an treaiion, aratro di^rapili'tur. See Gierke, n. (;. Jt. iii. 2:t4, :iC>, -iO'i, I'-tl, TM. In modern America the old doctrines which would dtprivo a corjKiration of corporate existence if it abuned its i>owor have borue ntiw fruit, aud joint-ntock companies have learned the muanintj of ((Ml) tniniiito.
* Firmii HurKi. c. 3. Sec above, p. (i'iS.
* Firuia Hurni, p. 1,37,
680 Jurisdictwn and Commvnal Jffair», [ml.
nrocrooroontn from thoae who bad money, and Uma onaM «By bo the burgVMM at targu — ' Now yon am •wttle tbo ulUmM* inddoooo of this impost lUuoDg yaoiwlvea ; tbu ccUleiD«U is your oonoom, not mine; at all events, it ia not mj ooeeem wm long M 1 am acting, not ox judgu, but u creditor ; fur all of y«a arc. and cnch of yoa is, liablo to me for tho whole stun.' TlMa insidL' Lho borough, or the mancrir, there wnold be » ■ottltow t To meet tiie annual rent there were fundi which nonaaQy would be snffident ; the burgage rents, the toUi, the pro&ta of the court ahould be appUod for this porpoMt, and tika elaMad 1^ bailifix might bo bound to make good tho de6cieney'. If a &M or anwrcomtmt had been iiiBict<<l. then a rata m^gkl becaM necoMary. Tho men of a rural manor wooU pmbably fan charged according to the scheme of commcnauiable UmmtaPmi the burgi'WGfl would be iiMfwl aoeording to their viahb in goods aud chattels. If really then mro any iMidtai or gooAi which we oould properly describe as beloogifig to the burovfk corporation, these abo might be taken, bol tbey wirold be u«ly a part, and usually a very small part, of the propctiy td iha community ; for the property of the community oonpriaad. a* least for this purpose, all the buds and all the gowk uf efciy burgeaa. Development was especially idow in this qiiaitv; Av not until 1285' could land, aa distinct bum the pfvtfts of Isad, be regarded as an ' available asset * for the satuAtetioo of dete^ and the nn-sceiit inunii-i|ial ctirpdmlioo had few, if any, chaMili^ and litile, if any, land that borv crops'. n«eaai- Nor as vet can we find any marked distiookioo betwsea the
hutiunti vanou.H communities when they take pari m IttigattotL ibs doctrine that a community can appuar in court udiy by attorney, that it can not possibly appear in penen, has csrtaUly not been grasped. ' The citixens of J ' or ' the bargSHBs sT f * are said to appear, and they are not aud to appear by aUoiMy. Or again, the mayor, or the bailiffs, or the mayor aod baflift appear to uigo the claims and defend the rights of Um rounity. It is so with oommunitiBS tn wbkJi we cai
> 6m »bav«, p. 6i5.
* SUL Wml u. «. U, vUeh tatrodaoti Iht «ril iltlMtt-
■ la «*Dt. IV. tb* DotioB of pan Mrporala UsUHtj vis Was pa^M x
abow, (L 4M. For Um gnnrtb o( ItaBsa 4a«lrtDa. Mt Qka^^ D. a L a. US.
m. A Mfaridlaij UsUBly oT Um •f^paS fK lfa» Ml sf fta
T"'"****"^ hy many vritata.
1
CH. III. § 8.] The Borough. 681
ascribo incorporation'. In the exchequer 'the men' of this hundred, ' the men ' of that township, are sued for fines, taxes and amercements. * The fullers and dyers of Lincoln' sue ' the aldermen and reeves of Lincoln'.' In Edward IL's time Emery Qegge and Robert Wawayn ' on behalf of themselves and the other poor and middling burgesses of Scarborough ' sue Roger B65] atte Cross, John Hugh's son, Warin Draper ' and the other rich burgesses of the said town*.' John Abel is attached to answer Betino Frescobaldi ' and his companions merchants of the firm {sodetas) of the Frescobaldi of Florence*.' At a later time when an action was brought against 'the Fellowship of the Lombard Merchants of Florence in London' and the sheriff, by way of making that society appear, distrained two of its members, the argument was advanced that this was an illegal act"; but in the thirteenth century we hear no such arguments; no one seems to think that they can be used. Much rather we are inclined to say that if there is any group of men having a permanent common interest, and if an unlawful act is done which can be regarded as a lesion of that interest, even though it does actual damage only to some one member of the group, then the members of it may join in an action, or one of them may sue on behalf of himself and all the other members : — as Bractou says ' Onines conqueri possunt et unus sub nomine univcr.sitatis''.' This is so within wide and indefinite limits. Ill the case of a borough attacked from without, it is natural tliat the coinjilaint .should bo lodged by the chief officers of the community. The burghers compose a body, and what the head does in matters concerning the community, the whole body ducs^ But this is hardly more than a special instance of a
' Nutt; V>ou\i, pi. 10: the bur^tsHCx of Scarborough complain of the bailiffs of York; tliL- cijiiplaint is nn^iwered by the mayor, reeve and bailiffa; pi. 145; the b^l^^'csst!s of lievcrley complain of the baiHEfH of Lincoln ; the complaint is answorud by tho mayor and builiffw. I'lacit. Abhrcv. p. 118 i the whole county of llutitiui-'donsliirc suon the burncast-H of Huntingdon. See Firma Burgi, ch. 7. Vi'T castB ill which tlie hmnine* of places that are not boroughs appear, (H.C abovi-, p. t".:i;(. In 1"275 the little towuHhip of Graveley 'by its attorney* hrinj's an action in tlio court of the Fair of St Ives; Select Pleas iu Manorial Courts, p. l->0.
^ I'lacit. Abbrcv. 05 {temp. Job.).
•' Finiift iiuryi, p. DO, * Firma Burgi, p. 07 (temp. Edw. II.).
' Y. H. lit Hen. VI. f. HO (Trin. pi. 11). « Bracton, f. 2*28 b.
" I'iucit. Abbrov. 21'A (temp. Edw, I.): 'et factum maioris in hiia que tant;uiit cominnnitatcm etit factum ipsius communitatia.'
682 Jurisdictum and C<»nmunal Affainu [i
X>«6ta
«W«d to
genenU rulo. Invtood of being itftflrad i borough mhy he divided within. If m. llwfi A mk! B 't» behalf of tho poor huigceees' oao eo* C and D 'aaiJ all olW tbe rich bDf;guMC8.'
Everywhen) wu find the mom uoeertetn pMp of which we aro wont to regard ■■ elemmtAry. Henry in., be diod, owed £4iOU to the oommunity of N ortham pioo i—m «ay the jimirs uf Northampton. Here at laat, w mmy aaj. it a dtHtinct ca«o of a debt due to a onrpomtion. Bnt how wae it incurred 7 Thus, say the jurom: — during thA twenty la«t 7*iB of hia reign the king's pnrreyoni {cafdorm) took to hia 9m peltry to thHt value in the bira of Xorthamploa, StaarfanL St Ives, Boston, Winchoater and St Edmnuda; what ia Bon ha owes the drapors of NortbamptOD £100 lor goods takan la Ika same fairs. The story, if true, is aad, for * many of th« tow folk are dying of bnogor and begging their bread aad ban abandoned their tonementa in the town and tba town ttoalT.* But King Henry has not been taking tbe goods of a tioD ; we mnoh doubt whether there has been any j> trading by all tba burgesaee or all tbe diapeia of Xaribaia|Asa; be has taken the goods of individual tradeta. XetreitbdeHc i> popular eatiniation he haa inoomd a dabi to tba esnuuani^ by taking goods from tbe stalls of Northamptoa neicbanto wfta wan exerdaing * libertiea' of trading which wens granted to aD tba man of Northampton and tbttir baim Again, if a iiieii hal of X owes a trading debt to a merdiant of V, tb«a if etber mercbanta of X go to tho town of F, or to aocne fiur wbm the creditor finds them, ihoy will Uke aanogb ba iHld ansasisbla for tbe debt— at all eventa if be pfwes that be haa HMda a frnitlesa afibrt to obtmn jnatice in the ooart nf X i — tbsj sea tlie eommiaant of the principal debtor, they arv ' bis paan aad paroenem,' they are ' in scut and Uii ' with him, aad ibey, aaJ each of them, must answer for his trading d«bu: for tbat is, incurred in tbo cxenase of trading prinlagaa they all ei\|oy in oommoin'. And aboukl a bailiiF of X ttkm
I B. n. iL s.
• BtUot riMS la lUadiisl Conrti, pp. IM-A; tol tm aboal lbs fU miintoiu an vUtelma. This ia 111* yotai tt m in boroai^ disrtcr* le Ito ciwl itol • to^pM AsD est Is $m wkldi b* M iwiib« priaolpftl Mftm am pMl^ "to la of Nolliushun, L 40. Xn ItH (HtoL Wal L «. »» ihte «w
CH. ra. § 8.] The Borough. 68B
unlawful toll irom a merchant of T, then woe betide the mer- chant of X who enters the town of 7. * ColIectdTe liability ' — this seems the beat pbraae — we may see eveiywhere, in so much that we are tempted to say, not merely Quod communitag d^bet^ d^)ent gingvU, but also Quod singtUus debet, debet communitae. In alt seriousness we are driven to some such proposition as the following : — If several men have some permanent common .M7] interest, and in any matter relating to the prosecution of that interest one of them commits a wrong or incurs a debt, all and each of them will be liable. This is not the outcome of any doctrine of 'implied agency,' it expresses the nature of a communitas. But pure corporate liability — that we shall not easily find'.
Nevertheless (and here we must turn to the other side of The the picture) the burgensic commumty is attainmg that kind seal, of unity which is personality. When in 1200 the community of Ipswich received its charter from King John, one of their first acts was to obtain a common seal and commit it to the care of the two bailiffs and one other of the chief portmen ; they were sworn to set it to no letter or instrument save for the common honour and profit of the burgesses of the town, and only to use it with the assent of their peers, that is, of the othur chief portmen'. Xo doubt by this time the greater boroughs were getting themselves seals^ Now we would not exaggerate the importance of this step — and we have seen how in Ed^viird I.'s day the coimty of Devon had a seal* — still it VinH important. In the first place, it was a step towards the co-ordination of the boroughs with the religious houses, which in their tuni were being co-ordinated with individual men. In
statutory rulo bo fur a^ En(;liflhnitjn were concerned. Not until 1363 vaa the benefit of the new rule extended tu alien merclianti. Sec Stat. 27 Edw. III. 8t. 2. c. 17 ; Fletn, p. ISO ; Coke, Second InBtituto, 204.
1 Miuius, Firnia Burgi, c. 8: 'Anciently a corporate commanity might be nnswL'iulile fur the trecpasri or debt of particular peraons members thereof; and particular membera for the trcBpass or debt of the community.' Suhm, Die dcutsclib GenosHcnsehuft, p. I'J : ' Die QenoHaenschaft baftet fiir die Schuldea der GciiosRcti, und dor (ienosHC haftct fiir die Sehulden der Genossenschaft. Beide Siit/.o izehvn durcb daa ganze Mittelaltcr.'
- (irufs. (iitd Mtrclmut, ii. ll'J, I'il.
'■' All ii)ipres!>ion of the common Hual used at Nottingham in 1225 may be seen in tin: ftunti^piecc of NottinRbara Records, vol. i.
* Hie ab'tvi,', p. 535.
Jurisdiction and Communal Affairs, [bk.
th« second place, there wu now &n outward ukI niible iigft it the borough's unity'. A mode of oooTeying' ri^U and obligationH ia eitablUhed which goes fmr to confulo Um that ihv commwniUit is a mere mm uf men with joint righlB aiul joint linbilitiim. If the coimnunitoM be thii^ iboa ibc acA by nhich it uotivoyi away iu rigbta or Mibjectii iUrtf Co aa obligation should, eo we DattmUy suppoae, be aoni* act dene by u)] ite menibon*. And «o we have mm bow ilw hmb of TiKldingtoti, thinking thnJ. Lb<!y hod land to give to the Pmvy of IhinMlabIc, met in una place at a court hoklen lor ToddiogMa aad there by their unanimoui ooucnt mad* the graat. Aad lh«u wo have seen how nfltjrwiirda they maurud ihiU ifa* tmiifiActiou did not bind them beoaiuB aome of than w«r infantJt when the graol wm made*. Thu it noi the way is which corpomtoni behav«; it is the way in which oo bcha\'o. No donbt there are other &daoc» in wbk^ a ration can bcojme bound beside the appoettioa of a •eal; we must not inakc our English fonuaiiam a maaaare far all mankind ; still u formality which •omewhat diMizicUy matfa off eome eommunUaU* from nthurv^ and a farinaUty wKick m never used by co-owners who have ooine to ooHnraerdup by iIm operation of merely private law, which !■ ornsr need hj o heira. ii> important. What ia more the aoal is iiitniel«d to IIh gnaidiuuship of a few. The oommanity at Ipawieh i^ieh hae just rooeived ite charter, which haa jort cxofciaed ita dcv r^ghi of electing bailiffii, which is in the act cf eiiiWidiii^ aeoooaii o/[ chief portmen and a gih) nerdiaat. aeeaa to iael IfcaA hi only ia it paaning from a lowtf to a higfaar nok ■■(■<§ tka oommunitiea of the land, but that eoroe new iligi ae or tw^m kind of unity has been attained : it muai have a laal thai ie ila, for it may now come before the law as pore onit and liw ae a penon among penona. Ralee ae to when and by wham thae aoal may be affixed will be dev«k^»ad in cootie of time, aad a dufiuitv theory about the power of m^^tiae will toka Um
1 llOTnrtfbv and 9li|ihae8, RMoty of
plaew whleh had miIi. tal • wkkfa bava tr ao4 all. M tbam Kid a« oh Uhm «r aBoUiH a and Biaajr of Ihara w«n loU l« Mod BMsban l« nlca. Ai •uYj *• ISM ih* fiwkUaDan ot 81 Maiy Wi^^m aonunon aaal. Sm BUkkUn, Dotbam OoDaft B^K Oiliad laatania. ttL pp. vl. M. * Baa above, p. 880i
CH. III. § 8.] The Borough. 685
place of some loose notion which demands unanimity but is content if the voices of a dissentient few are overwhelmed by the shout of the assentient many. The unanimity of ancient moots is wonderful. Unconscious fiction begins its work at an early time. With one voice all the people say 'Yea, yea' or * Nay, nay.' But now there is to be a small deliberative assembly ' to govern and maintain the borough ' and the votes of the twelve will be counted'.
What now is necessary is that the community, acting as The unit, should begin to develop its property. As regards rights proper^, in land, critically decisive acts are hardly to be expected at this early time. In some sort the ' waste ' land, intramural and extramural, may belong to the community. But on the one hand this community must come to terms with the king about the right of 'approvement,' which is rather in him than in it', and, on the other hand, it must come to terms with the singuli about their rights of ' common ' ; and this may be a long process. The early examples in which a community disposes of land have a strong tinge of co-proprietorship about them'. Apparently the fourteenth century had come before there was any considerable quantity of land that was paying rent into municipal chests ; and until this was happening, the notion of a truf coiporate ownership of town lands was insecure.
Unless we arc mistaken, the property that was most im- The
. , borongh'a
portiLiit in the evolution of corporate unity was the property property in that tliL' boiijiigh had in its franchises, but more especially in its t'lUs. Already in 1225 ' the burgesses ' of Nottingham under their onimon seal had demised to 'the burgesses' of Retford the fulls ' belDiigiiig to the borough of Nottingham ' and arising within certain geographical limits — 'to have and to hold at
' Tor the dtvclopmcnt of practice and theory touching the power of m&jorities, Btc (ii. ikc, I). (;. 11. ii. 17a ; iii. '220, ;i-22, 392. 470.
- Scf abnvc, ]i. t'i'i'A.
'•• Take for in-.tanct: the trannnction chronicled in ReR. Malmesb. ii. 150-5. Thi- abbot and convent quitclaim ' to the burgcsBes who are of the gild nitRluiiil of Mill 111 r^biiry tlit-ir bt-irt* and assigns' all right of pasture in certain land. On thr other band, A. H. alderman of the gild, C. D and K. F, stewards of till' t,'ild, -I'Vftitctn other named persons, ' and the whole intrinsic comnionity of the .-iiiid vill (uul uf tilt' tiijd merclmnt,' di.'clare]that 'they' have quit-claimed to the iibbiv ]i!irt uf 'ibrir' heath callod rortnianueahethe, and that none of the R.iid fniuniuriitv nor any of thrir successors or heirs will claim any right therein, and thereto tbev set tbeir common seaL
686 Juriadu^ian and Oommunai JJfain, [i
fimn to the nid bui^gOMes of Betfard and ibeir aiid our succesKra for ever' »! a nmt of tnrant^ marki*. N«* ihiM wti can hardly regard olberwiie tluui as a IraiMKiiea between tvo penona. It can acuoelr be thnoght khat ibe mam burgoanipw of Xntiingham are in anjr lutoimbla aenao m iiaiMi of the right of taking toll No ooe of tbom b entiUad to aa Aliquot ^are of the totla ; no one of then naa anythiDg ihal l« coutd doniise to a burgeai of Darby tw of RatPml : nay. if the Retford folk took a Heparate deed from each man of NoUiaglMia they would get nothing thereby. What ia wantad b ml joint ai^ion but constitutional action; a oommoo eeal wmk be affixed by those who according to tho oonaftitatiaD of the borough oro entitled to affix it. Very poaribly oo maa «f Nottingham bad yet said to bimaelf ' Oar borough b a pertaa.' ITod ho done ao he wonld hare been ta adraaoe of iba aiiutiMl Engliith kwyers of hia Lime, lor Bracion and lib maatar Am were not rery clear that the rw tiritati* wwe noi the fW orRii'um ctriHm. But had he hoard how a pOfie 'fictitiuuH pcrwnality' to the uniMraifM, he would have Raid: ' YitH, the Holy Father b right; our bocwugh af Nottingham is a porwnt.'
It is in thu region that we may find * the ideal will * «f iha
borough, a pennaoent purpoae that keepa it logeihcr jtaiK m a
reKgioud honao in kept together by tike purpaaa of glohfyti^
Ood according to the Beoediettno or Cwlerdaa rmU. TW
borough wills to maintain aad profit by ita ftawiibr^ antalf^
to take toll and be quit of toll *Thc frmoehiaaa aad t&sftba
of the City of Norwich I will maintain and aoMaia wbli mg
body aad goods '-^mich is the oath whiek ^m ftvaaaa of
Norwich will take from century to ceotaiy. The eoaaty, tbi
hiitidrfd, tho totvntthip, haa no anoh will, no aiMfa (b4wl%
abiding purpose. It haa no fraaehiaea, or, if il haa a irw. aei
such as must bo rigonwaly * maintained aad wittamed' by ihm
bcrflie* aad goods of ita membora and aaxioaaly gaaidad aad
administ45rod by il« rulon.
''**^j^^> Wc may now sum op the whole of a Um^ disnnabm whbb
fadfo^-* haa strayed into ragtons that an* inanfieiflatly azfikaed. Xhm
^Sr^ question. When did our Engliah boroagha baeoaH iaavfvevafte?
ia one to which nu precise answer oao be gi
qnaetioit about the evolution of a thoery on iha
1 BwonU of rmtti^hi^. L la.
wflBorUw
CH. III. § 8.] The Borough, 687
the appearance of certain political, social and economic facts on the other, and then it is a question about the application of the theory to the facts. The process was slow, and those who were concerned in it were unconscious of it. But this we may say, that before the end of the thirteenth century the orgBJiization that was to be found in our greater towns was of a kind which imperatively demanded (so it will seem to us) some new idea. Such old categories of legal thought as the vague communUas were no longer adequate to express the relationships and habits that were being formed, and a new line had to be drawn between the boroughs and the other communitates. We may add too that Bracton saw this, though he saw it dimly\ And if the facts were ready for the theory, a theory was being fashioned for the facts, though those who were preparing it were Italian lawyers. But as yet there had been no junction between English life and Italian thought. 'Church' and 'borough' are still standing far apart from each other; the English courts are not yet co-ordinating 'mayor, aldermen and burgesses' with 'abbot and monks' under the rubric of Corporations. What happened in the fourteenth and fifteenth centuries must some day be told us by one who is adequately learned. If we may venture a guess, he will say that, along with some idi_';is which were of the highest value, there stole iiitn nur temporal law {ithers which should have been left in that i'cr'lcsiasticjil sphere which was their native home". But for us at tile iiionieiit all this lies in the future. At present we have n*ti heard those negative propositions which will give a keen eii;;e to the law of corporations. We \htcn in vain for any one ti» say tiiat the lands of the city are not simply the lands of the citizens, o[- that a debt owed by the borough is not a debt owtd by i\\r bur<,n-sscs. So long as such sayings arc not said, till' ]irT-oiKiIil V of tile group-persitn is latent and insecure.
At tiie )nesfiit time tilere is ])erhHp.s some danger that ariiecom- little too mueii stitss will Ije laid on the connnunal traits offtndtbe iii'dii-\ai history. It is a iKird tasii to see old times just as"'*"^°" tii.y wiiv. 'I'd a s(ii()i>i which could only perceive individual nun and a ' si)Vriri,L,'ii one oi- many' succeeds another which, at
1 Si'C •.ih,<\i\ ]>\>. llltl. i;.'.!.
- \\i iiri' iiLit hiiiiiiii; ,ti anv (iiriiml or thorouuli receptioD of the Italian ti.clriii-', liut ciit.iid (if it^ plir^i^i's Iieo/irin- ]nirt of the common inheritance of Ml',iiMt>il nrinhiiiii. I'lvLiy inir kiii.'W th;it a corporation is pemotuijicta, or even IU-IH--II inn.; tlj.Ll JL e.iii nut -in. will iini \w Jaiunt'd, and 80 forth.
688 Jurisdiction and Cotnmimal Ajfair$, [WL,
lesst when doAlin<; vith mediev*! hbttoiy, cdcalln the dtmcu Aiid auluiiuiny or i*»aib ur all of ihoe^ cofDmuoitn* li« within a nation. C«rtainl/ it wu high tine %hmk tin* nwction tihoulil bo fell ; but it must oo( taxry m bajrvad iW truth, aud in thi* cbiq>ter we may have ascB eooa|(li to ipw « pause before wa Mient to any grand dagina wlucfa wmikl toMkt j 'oomcDanalifiti) * older than ' individualism.' Th« tippmrmH «ai^ munaliflm of old law oovora an inrliTvlaaUm wkaek baa dnp and ancient roots. Evvr)* ri^ht, evory doty, bowsrcr ita character, spontancouidy btcinnr» the right, lh« dqly an individuai by attaching itaelf to the Land that b* Because he holds a certain nuanagv he uay lam oat ivo ou ' the common of the rill ' ; b««MiM bo holda a nsMBoage bo is a doomsmao of the eooa^ eoort. Again in the twelfth and thtrt«nth cmturi— «• ha«* •■■• tMi some mighty force*, making not against^ bat for eonaHnMbMi of a certain sort. In many qoarten wa havt aasa th«r fhf, Tbe oonnty is amurood for &lae jadgmeota, the hoodiad m fined for rourdors. tho townships arc compttUad to aUMMl IW juAticoH. men aro forced into frankpledga, tha bofyhan a*v jointly and severally liable for Ifao Jirma hmrgi, tha maiaaisl lord treata bia rill«inii as oh iMpoMible gnrnp. Maa an drilled and regimeol«d into cocnnonitisa in ardsr that tha state may be strong and tbe land may bo at piara. Mach af tbe communal life that we see is not ■pontaftaooa Th* oeaK monity is a oommunity, not becanse it la a ssif siiflifMni organifim, but bocauao it is a anboffdinaio nembcr of a giaalis commuuiiy, of a nation. Tbo nation ts not a oyslem of fcAnatad oommaoicies; tho king is above all and has a direct biid « oTCfy individual Tho oommunitics on Ibr mon oAsM Iha b««i«ia of duties than of rigbu; they sppsar bafac* iha ooHito chiefly as punishable unita; the piwidait dty will lam its libortios tf it aKoeodi or abnaea tboae powen that an gma la it fron above But above tho king binaelf— thos joatioe may think — is the grealesfc of all untVLTUty of the realm'.' The Eaglaad thai m« iba birth Englinh law, the England of klanrna Ckrta and parliaments, wss a much governed and a UtlW
i,t ITIb.
7805 U30
BND or TOU L
JO^