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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. 

!■•  MM  mtvIm  a  torn  [mifrnm  ttip  motmmtrw  «•■  anb*)  i 

pmoa  •«  4«  ta«  KM«  MTTjM  •  aMB  aatr* 

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 

■  aiMniU.  b.  e.  «.  •  DM.  H.  l  10,  »L 

•  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^