Full text of "The publications of the Selden Society"

6 <-
THE

PUBLICATIONS

OF THE

^eft>en ^ociefg

irspt iravTos irjv iXsvOsplop

VOLUME XXI
FOR THE YEAR 1906

^ef^en ^ocitt^

Founded 1887

TO ENCOUEAGE THE STUDY AND ADVANCE THE KNOWLEDGE
OF THE HISTOEY OF ENGLISH LAW.

patrons :

HIS MAJESTY THE KING.
HIS EOYAL HIGHNESS THE PEINCE OF WALES.

IPresiDent :

THE RIGHT HONOaRABLE LORD ALVERSTONE.

Dlce^iPreeiDents :

THE EIGHT HONOURABLE THE MASTER OF THE ROLLS.
MR. W. C. RENSHAW, K.<1

Council :

Mr. J. T. Atkinson. The Hon. Mr. Justice Joyce.

Mr. Henry Attlee. Sir H. C. M. Lyte, K.C.B.

Mr. W. Paley Baildon. Mr. R. Pennington.

Mr. a. T. Carter. Sir F. Pollock, Bart.

The Hon. Mr. Justice Channell. Professor Vinogradoff.

The Hon. Mr. Justice Farwell. Mr. T. Cyprian Williams.

Mr. Chadwyck Healey, K.C. The Hon. Mr. Justice Wills.
Sir J. E. Gray Hill.

Uiterarg 2)icector :

Professor F. W. Maitland (Downing College, Cambridge).

Ibonorar^ BuDitors:

Mr. J. W. Clark. Mr. Hubert Hall.

Ibonorars Secretary :

Mr. B. Fossett Lock (11 New Square, Lincoln's Inn, London).

Ibonorarg treasurer :

Mr. Francis K. Munton (Montpelier House, Twickenham).

Don. Secrctari^ anD a;rea0urec for tbe 'GlniteD States :
Mf, Richard W. Hale (60 State Street, Boston, Mass.).

Borougl) Cu0toms

VOLUME II

prin'i'Ild by
spoitisvvoode and co. l'i'd., miw-strkkt squahi

LOXDOX

^efben ^ociefg

BOEOUGH CUSTOMS

VOLUME II.

EDITED
FOE THE SELDEN SOCIETY

MAKY BATE SON

FKLLOW OF XEW.MIAM COLLEGE, CAMBKIUGK

LONDON

BERNARD QUARITCH, 15 PICCADILLY

1906

33. Q. :

All risirlits roserv

CONTENTS

PACK

List of Abbreviated Titles xi

Contents of the Introduction xiii

Introduction xv

Appendix on the Sursise of Rent clvii

Additions and Corrections clx

Borough Court Rules 1

Rules for Pleading . . , 1

Miskenning 1

Mistaken defence 4

Privileges of the defendant .8

Priority of plea 9

Attorneys and counsel 10

Legal aid for widows and orphans 16

Error and false judgment 16

Borough Officers 20

Rules for their protection 20

Protection of prisoners 26

Penalties on borough officers 27

Restrictions on the Reeve's power to implead burgesses . . .30

Extent of the officers' power 31

Fee for distress 33

Duty of borough officers in guarding criminals 34

House destruction for communal offence 38

Sequestration for debt to the city 40

Compensation from the community 40

The Borough Court 41

Summoning of the Hundred 41

"What constitutes a full court 42

Giving of judgment 43

Order in court 43

Vacations and privileged seasons 46

Hours of courts 49

Head Courts. Rules for attendance 50

Use of the averment on allegiance 66

Exemption from service on juries 68

Custom and the Laws of Nature 59

viii BOROUGH CUSTOMS

TAGE

Seignorial and Family Law .... 60

Rights to First Purchase of Land 60

Pre-emption of the lord 60

Pre-emption of the kin 61

Pre-emption of land conditionally bequeathed 73

Pre-emption of dower 74

The Lord's Control of the Burgess's Chattels . . . .74

The lord and the intestate's chattels 75

Chartered right to make wills . . . . . . . .78

Caption 78

Feudal Dues 79

Heriot, relief, fines on alienation, oath of fealty and fine on marriage 79

Limitation of the lord's credit 86

Franchise by year and day 89

Right to alienate and devise land . 90

Alienation of inherited land forbidden when the existence of a

descendant is doubtful . . . . . .... 100

Husband and Wife . . 102

Alienation of land . . 102

Joint feoffment of husband and wife ....... 106

Husband's right increased by birth of issue 108

Wife's will 108

Frank marriage Ill

Curtesy of England . 112

Rights of second husband . . .115

Borough fines and the wife's consent by separate examination . . 115

Devise between husband and wife , 119

Dower and free bench 120

Dower of what the husband dies seised of 128

No dower of entailed lands '. 129

Dower as preferred debt 129

The writ Cui in vita must be sued within year and day . . . 129

Inheritance of Land . . 130

The youngest son 130

Partible inheritance . . 132

Children of husband's second marriage ....... 134

Bastards 135

Marriage by trothplight 135

Inheritance of Goods 136

Legitim 136

Heirlooms 138

Wardship 145

Majority . . 157

CONTENTS ix

PAGE

LoRL»'s Rights ICO

Escheat 160

Waif and stray 163

Relations of borough and castle 164

Pre-emption of Merchandise 166

Market price . . . . . . . . . . . . 167

Communal purchase . 167

Lot 168

Perquisites 180

Hosts of foreigners 181

Quality of merchandise 182

Merchant Law . . '. 183

Speedy judgment 183

Fair law 185

Seamen's law 193

Ecclesiastical Relations . 194

Probate of burgage wills 194

Nuncupative wills before borough officers 200

Intestacy 200

Mortmain 201

Court Christian 205

Punishment of clerks 206

The burgess's alms and oblations, tithe, &c 207

List of Rarer Words 215

Index to Custumals 217

Index of Matters 221

LIST OF INITIALLED TITLES, AND CONTINENTAL

CUSTUMALS AND COMMENTARIES BEFERRED

TO BY ABBREVIATED TITLES.

D.B.A. — J. Grimm's Deutsche Kechtsalterthiimer (1899).

D.R.G. — H. Brunner's Deutsche Eechtsgeschichie.

E.H.B. — English Historical Review.

H.E.L.— Pollock and Maitland's History of English Law (1895).

N.E.D.— A New English Dictionary on historical principles.

Amiens, Ordonnances des Rois de France de la troisi^me race, xi.

Antioch, Assises d'Antioche reproduites en fran(?ais. Society Mekhithariste de Saint

Lazare. (Venice, 1876.)
Aries, see Giraud.

Balasque et Dulaurens, Etudes historiques sur la ville de Bayonne.
Bauchond, M., La Justice criminelle du Magistrat de Valenciennes au Moyen-Age.
Bayonne, see Balasque.

Beauvais, L. H. Labande, Histcire de Beauvais.
Belv^s (Dordogne), Nouvelle Revue historique, 1899.
BergeraCf see Bourdot de Richebourg.
Berne, see Keutgen.
Bordeaux. Archives municipales de Bordeaux, tome v. Livre de Coutumes, ed. H.

Barckhausen.
Bourdot de Richebourg, Coutume general, iv. 1005 (Bergerac).
Bourges, Ordonnances des Rois de France de la troisi^me race, i.
Brissaud, J., Cours d'Histoire g^n^rale du Droit fran<;ais public et prive.
Briinneck, Wilhelm von, Siciliens mittelalterliche Stadtrechte.
Caillemer, R., Etudes sur les successions au Moyen-Age : 1, Origines et; d^veloppement de

1 'execution testamentaire ; 2, Confiscation et administration des successions par

les pouvoirs publics au moyen-age.
Carcassonne, see Giraud.
Champeaux, E., Essai sur la ' Vestitura ' ou saisine, et I'introduction des actions

possessoires dans I'ancien droit fran<;ai8.
Chdtelblanc, see Giraud.

Diericx, M^moires sur les Lois, les Coutumes et les Privileges des Gantois.
Fagniez, G., Documents relatifs k I'Histoire de I'lnduslrie et du Commerce en France,

2 vols., 1900.

Etudes sur I'lndustrie et la Classe industrielle k Paris. (Bibl. de I'Ecole des

Hautes Ktudes.)
Flensbourg, Paulsen, Staatsbiirgerliches Magazin, v. 71.
Freiburg-im-Breisgan, see Keutgen.
Gdnestal, R., La tenure en bourgage, Etude sur la propri6t6 fonci^re dans les villes

Normandes.
Geneva, Franchises de Geneve de 1387, cd. E. Mallet, M6moires et Documents publics par

la Soci6te d'Histoire et d'Archeologie de Geneve, ii. 342.
Ghent, see Diericx.

xii BOROUGH CUSTOMS

Giraud, Essai sur I'Histoire du Droit franpais au Moyen-Age.

Giry, A., Les Etablissements de Kouen. (Bibl. de I'Ecole des Hautes Etudes.)

Documents sur les Kelations de la Eoyauteavec les Villes en France, 1180-1314.
Grenade, Ordonnances des Kois de France de la troisieme race, vi.
Heusler, A., Institutionen des deutschen Privatrechts.
Huber, E., System und Geschichte des Scliweizerischen Privatrechts.
Keutgen, F., Urkunden zur stadtischen Verfassungsgeschichte.
Leon, Munoz y Komero, Fueros Municipales.
Lille, see Roisin.

Lorris, M- Prou, Nouvelle llevue Historique, \iii.
Lilbeck, see Keutgen.

Pauli, Abhandlungen aus dem liibischen Rechte.
Maurer, G. L. von, Geschichte der Stadteverfassung in Deutschland.
Montpellier, Thalamus parvus (1848).

See Giraud.
OUron, Black Book of the Admiralty, ed, Travers Twiss, ii. 256-397.
Ordonnances des Rois de France de la troisieme race.
Fertile, A., Storia del Diritto italiano. 2 ed.
Roisin, Franchises, Lois et Coutumes de la Vilie de Lille.
Rouen, see Giry.
Strasbourg, see Keutgen.
Salon, see Giraud.

Steenstrup, J. C. H. R., Norman nerne, vol. iv. Danelag.
Toulouse, Coutumes de Toulouse, publi^es par Ad. Tardif (1884).
Valenciennes, see Bauchond.
Viollet, Les Communes franpaises au Moyen-Age. Memoires de I'lnstitut National de

France, Acad, des Inscrip. et Belles Lettres, tome 36.
Warnkcfcnig, L.-A., Histoire administrative et constitutionnelle des Villes et Chatellenies

d'Ypres, Cassel, Bailleul, et Warneton, ed. A.-E. Gheldolf.
Y^tres, see Warnkamig.

CONTENTS OF THP] INTEODUCTION

1. Pbeliminary xv-xix

2. Process and Execution xx-lxvii

Causae majores, p. xx. Summons, p. xxii. Mainprise, p. xxiii. Free
custody, p. XXV. House privilege, p. xxv. Appeal and indictment,
p. xxvi. Trial by battle, p. xxvi. Compurgation, p. xxvii. Witnesses,
p. XXX. Archaic rules concerning oaths, p. xxxii. The decisory oath,
p. xxxiv. Punishment, p. xxxiv. Damages for wounds and leech-fee,
p. XXXV. House destruction, p. xxxv. Forfeiture for felony, p. xxxvii.
Beasts damage feasant, p. xxxix. Innocent intent and self-defence,
p. xi. Liability, p. xli. Attachment, p. xlii. Gaging of the judgment,
p. xliii. Distress, p. xliv. Sale of distress, p. xhiii. Reprisal, p. lii.
Foreign attachment, p. Ivii. Restrictions on distress, p. Iviii. Distraint
by bailed goods, p. Iviii. Distraint by the tenement, p. lix. Rent arrear,
p. Ixii.

3. Contract Ixvii-lxxxv

Sharing in bargains, p, Ixvii. Official witnesses of sales, p. Ixxiii.
Team, p. Ixxv. Honest purchase of stolen goods, p. Ixxvi. Breach of
covenant, p. Ixxix. Earnest, p. Ixxxii. Servant's contract, p. Ixxxiv.
Detinue, p. Ixxxiv. Account, p. Ixxxiv. Merchant law, p. Ixxxiv. Agency,
p. Ixxxv.

4. Alienation and Inheritance Ixxxv-ci

Freedom of alienation, p. Ixxxv. Subinfeudation, p. xcii. Devise of
land, p. xcii. ForisfamiUation, p. xciv. Inheritance, p. xciv. Be-
quest of chattels, p. xcvi. Heirlooms, p. xcix.

5. Husband and Wife ci-cxv

Husband and wife's rights in land, p. ci. Chattels, p. ciii. The
wife's devise, p. civ. Devise from husband to wife, p. cv. Dissolu-
tion of the marriage, p. cvi. Tlie widower, p. cvii. The widow,
p. cviii. The second wife, p. ex. Wife's debts, p. cxi. Summary,
p. cxiv.

xiv BOEOUGH CUSTOMS

6. Rights in Land cxv-cxxvii

Seisin, p. cxv. Heir's seisin, p. cxvii. Disseisin, p. cxix. Nuisance,
p. cxxi. Writ of right, p. cxxii. Mort d'ancestor, p. cxxiii. Writs of
entry, &c., p. cxxiii. Waste, p. cxxiv. Termor's security, p. cxxvi.
Attornment, p. cxxvii.

7. MiNOBiTY cxxvii-cxxxv

Age of discretion, p. cxxvii. Wardship, p. cxxviii. Guardian's
account, p. cxxx. Idiots and lunatics, p. cxxxiii. Minor's legacy,
p. cxxxiv. Minor's marriage, p. cxxxv.

8. Seignorial Claims cxxxv-cxxxviii

Escheat, p. cxxxv. Waif and stray, p. cxxxvi. The lord and the
burgess's chattels, p. cxxxvi.

9. Wills and Intestacy cxxxviii-cxlv

Probate of devisable burgage, p. cxxxviii. Testament of personal
property, p. cxl. Executors, p. cxH. Intestacy, p. cxli.

10. Borough Courts cxlv-clvi

The borough moot, p. cxlv. False j udgment, p. cxlviii. Miskenning,
p. cxlix. Counsel, p. clii. Attorney, p. cliv. Punishment of borough
officers, p. civ. Recourse to the laws of Nature, p. civ.

INTEODUCTION

1. Preliminary

The chief purpose of this Introduction must be to explain how the
borough customs differed from the law of the land, why they differed,
and in what way they were brought ultimately into such harmony
that borough custom has ceased to be a matter of much practical
interest. The primary interest of borough custom, as of all custom, is
the glimpse it affords into a remote past : the more that can be
deciphered of the dim writing of custom lying underneath the modern
script of the common law, the more possible it is to read the whole
palimpsest.

The borough customs in one particular after another show
retention of early law. An analysis of each section of the material
will, we believe, serve to show that we can resolve the composition
into two parts, as derived on the one hand from folk-law, and on the
other from a vigorous royal process of execution which lent to the
folk-law a new strength. The * special peace ' or * grits ' of the
borough has been connected ere now with the peace of the King's
own house : ^ what may be read of the characteristics of the justice
administered in the older boroughs in after-centuries goes to confirm
the belief that the * burhgri^ ' was not a descendant of primitive custom,
but came of a grafting of royal law on early custom.'^ At a time when
every dwelling had a * peace ' of its own, defended by the gods of the
hearth, the peace of the King's house was peculiarly well defended.
It has been observed that the amount of the fine paid centuries later
by the Londoner who was guilty of the graver offences, a sum of
100 shillings, or the greater hundred, 120 shillings, tallies with the
sum which early law required of him who broke the King's ' burh * :

^ Maitland, Domesday Book and sch. 1898, with force against the siig-

Beyond, p. 185. gestioa of contrast other than that

■^ On the distinction between royal between early custom and later adniini-

and folk law see Briinner, D.R.G. 1. 277 strative law.
sqq. Seeliger argues in Hist. Viertelj.-

xvi INTRODUCTION

that is, who disturbed the peace within the verge of a royal dwelling
protected by an entrenchment or fence. It has been observed also
that an ancient account of the distance which the King's peace
extended from his * burh-geat,' the entrance of his stronghold, and
presumably the place where his court was held,^ tallies with another
statement which describes the distance from the city gates of Canter-
bury over which the King's reeve of that city might take the fines for
the breach of the peace. The peculiar jurisdiction of the King's
household court, the court of the ' verge ' of the royal palace, and the
privileged jurisdiction of the borough court within its own * banlieue,'
had at one time in all likeUhood much in common. What the borough
customs add in further illustration is the evidence that within
the ' banlieue ' ^ or area of borough jurisdiction, the older boroughs
retained a process in execution which was like that of the royal ' ban,'
but required no royal writ to put it into motion. If the * ban ' at
first belonged only to the royal reeve, it passed in the end to the
court over which he once presided. The suitors of that court were
the men who guarded the boroughs, and on that ground were (like
the guardians of the forest) out of the ordinary ' hundred -law,' to find
instead a hundred-law with their own fellow-burgesses. But the
borough ' hundred-law ' was of a peculiar character : its peace was
as sacred as that of a church, and its peace, sacred all the year round,
was symbolized in all likelihood by the permanent presence of an
actual * figura judicii ' or ' Gerichtsbild.'^ The perpetually guarded
peace of the King's stronghold was there, and the power which
defended that peace was the ban.

Into the original sources of the power of the King's ban we are
not called upon to inquire ; it may sufiice to notice that some regard it
as derived from the symbol (bandva) of the god set up in the Germanic
' thing ' or judicial assembly ; and if this be so we may treat the royal
power as an expansion and extension for administrative purposes of
the temporary safeguard of the peace of the ' thing.' Whatever be the

* The court of the castle is often Wilts Domesday, p. 4 ; Thorpe's Laivs,

described as being held at the gate glossary; also Schmid, Gese^^e ^er^. 6'.,

Here would be the bell-house, which glossary ; Armitage Smith, John of

with the ' burh-geat ' was associated Gaunt, pp. 437, 438.

with jurisdictional power. The King's ^ Cf. the Colchester charter of

court of the verge might be held either 1 Ric. I., and JjKichdAxe, Communes, p. 69.

where the King was or where the ^ Grimm, D.B.A. ii. 433, note

' tynell ' was. The ' tynell ' has been by the editors on the ' figura judicii.'

interpreted ' bell-house,' and it also had They refer to Hiillmann's Stddtewesen,

the meaning ' servants' hall ' ; also, per- iii. 276-9, where an account is given of

haps, of household. Cf. Bolls of Pari., the pictorial emblems which marked out

ii. 336; Du Cange s. v. tinellus; Jones, jurisdictional limits in the Italian cities.

PRELIMINARY Xvii

truth of this matter, it is clear that not only were the King's person
and the King's palace under a peace of a specially sacred character, but
that by means of the administrative * ban ' the King could spread his

* peace ' beyond the circuit which his personal presence could influence.
It was his ban which was the primary source of the power of the
King's Court ; it was his ' ban ' which enforced his * word ' and his
writing. But that ban could be used by the ministers of the King
with his authority, and the time came when it was exercisable in the
borough by mere burgesses, admitted by royal charter to stand in the
place of the King's reeve.

On the Continent there is traceable an exercise of the administra-
tive ban which served as a useful means to prepare the way for
outlawry of the severest kind, of a * foreban ' which, if it did not bring
the accused to answer for his offence within the term of year and day,
proved him contumacious, and exposed him to the full ' ban.' Of this

* missio in bannum regis ' for year and day the borough customs
afford, we believe, some traces. This foreban could be used also as a
means to threaten no more than a loss of the property placed under
the royal sequestration, if within the term allotted the party subject
to the foreban did not yield himself to justice. Used in this way it
might work as a means to bar hostile claims, when there was public
proclamation in court giving all persons notice of the term within
which a claim must be entered. Under this principle comes the
borough rule which caused the lapse of year and day to convert the
right to detain distrained goods into a right to sell them. A further
example of the same principle is found in the borough rules on the
cesser of rent. When land was let at a rent and deserted by the
tenant, after fruitless attempts to distrain, and the lapse of year and
day as the term for satisfaction or replevin, the land became again
the lord's demesne. We see a wider application of the same principle
in the borough custom which enabled men to justify their seisin of
land, and convert their possession into ownership, if within the year
and day after formal delivery in court no counter-claim was entered.
Another example may perhaps be found in the rule which freed the
villein from his lord after residing in the borough for year and day.

Armed with the * missio in bannum,' exercisable in the borough
court, in the presence or in the absence of royal officers, the local law
of the older boroughs showed a vitality greater than that of the folk-
law, which was administered in the shire and hundred ; the borough
justice may even be said to have been creative, for it has happened
that a borough custom, which served tha boroughs well while the

VOL. II. a

xviii INTRODUCTION

fashions of the common law were changing, was fated in the course of
time to return to the public service ; it returned as the latest of
fashions, not of course precisely in its old form, but with some
adaptation to new conditions. We may perhaps see an instance of
this where we see an instance of the retention of the * foreban,' in
the history of the landlord's recovery of land for rent arrear : certain
burghal analogies to the statutory recovery introduced in the time of
Edward I. seem to justify the suggestion that we may seek its origin
in the boroughs, and not, as has hitherto been believed, in Roman law.

On the one hand we find the retention of many archaic practices
derived from the old English and old Danish folk-law, and on the other
traces of innovation and reformation which show that the burgesses
of their own initiative were prepared to part company with much that
was old custom. So far as the old folk-law could be used to give the
burgesses additional facilities and franchises against outsiders, it was
adhered to ; but when it tended to hamper the burgesses — for in-
stance, in its strict rules for verbal accuracy in pleading — the more
advanced of the borough courts were prepared to amend or abolish
the old system.

We shall have to linger long over the law of distress in the
boroughs, and shall seek to show that the peculiar extra-judicial
distraint of the * foreigner ' by the burgess must be regarded, not as a
form of self-help of primitive antiquity, but as a form of self-help
sanctioned by a royal grant, and due to the special guarantees under
which all contracts between burgesses and outsiders had to be secured.
But if it be disappointing to resign the link with primitive antiquity
which the extra-judicial distress seems at first sight to provide, there
are other hnks to offer in its place. It is impossible to read much of
borough custom without being reminded of the tribal hostility to all
persons outside the tribe, and of the jeopardy in which lay the lives
of all who dared to enter a strange land. * Love of the citizen and
hate of the foreigner ' was apt to guide the verdict even in the coroner's
inquest. The special arrangements made for the peace of the foreign
merchant did not conceal the fact that he was after all an enemy.^
Londoners extended their hospitahty to him from the ancient limit of
three days to forty days, but for that term of peace there was a toll
to pay.

Over and over again in borough custom we are reminded of the
close intimacy between ancient law and ancient religion. In no

* Cf, Grierson, Silent Trade,

PRELIMINARY xix

matter is this more clearly brought out than in the customary
punishments of some boroughs, but it lies not far beneath the surface
in almost every section.

Although our story must be in the main a story of * lost causes
and forgotten loyalties,' and although the cause of the franchised
burgess against the unfranchised ' stranger,' .happily for all, can raise
no longer any enthusiasm in the breast of the reader, nevertheless we
think that no student of the custumals will feel inclined to condemn
as unworthy every object of the ambition of the borough courts. To
prove that the justice of the borough courts was not wholly unpro-
gressive or incapable of development we need but point to the early
attempts to abolish rigid formalism, and to the very curious history
of wardship in the boroughs, which has been strangely neglected.
Even when we have to record the final victory of the common law over
the somewhat feeble efforts of individual boroughs, the hesitating
course of the borough may serve to tell more than we could otherwise
know of the precise nature of the victory won by the common law.
The borough law is specially helpful in the revelation it affords of the
nature of those earlier doctrines which the orthodoxy of the common
law has absorbed or set aside. A good example of this may be found
in the burgesses' treatment of questions affecting the property of
married women. The common law chose a short cut to clear doctrine,
pursuing a course not identical with any of the various pathways
which some of the boroughs, in unscientific fashion, strove to make
through that difficult country.

We have now to discuss in detail the remains of primitive law
embedded in the customs, and the tentative schemes of the boroughs
for the reformation of their law. The discussion will show, we believe,
that the borough customs have contributed something to the stock of
legal ideas which went to make up the law of the land.

An attempt has been made to keep in view the fact that the
course of development of English town law is but part of a much
larger story — the development, namely, of town law in other
European countries. But the ocean of learning belonging to this
subject is so wide and deep that to play upon its edge is enough for
average human strength. An insular treatment of * borough custom '
would, however, be wholly unsuitable, and suggestions and illustra-
tions have been looked for abroad, so far as possible, wherever these
lay ready to hand.

XX INTRODUCTION

2. Process and Execution.

< Causae majores ' in the Boroughs. — The restraints ultimately set
upon the criminal jurisdiction of the ancient boroughs, and the
absence of criminal jurisdiction in the boroughs of late origin, have
tended to obscure the importance of the early borough jurisdiction.
The ' haute justice ' of London and the Cinque Ports serves to recall
the fact that there were boroughs whose powers were not originally
restricted to a mere right of ' infangthef ' and * utfangthef,' of dealing
summarily with offenders caught * hand- having ' against whom there
was fresh 'suit.' When Edward the Elder, in 904,^ gave to the
bishop of Winchester and his convent 'hoc idem jus [in Taunton]
. . . quo regis homines perfruuntur regalibus fiscis commorantes,'
with the ' town's cheaping ' and ' census civilis,' we get sight of what
may well be a grant of a borough with the ' Blutbann.' Although,
as soon as the age of Norman borough charters opens, the jurisdiction
of the old boroughs was beginning to be subject to restraint in several
directions, many traces remain to show that the borough courts of
early origin had control of the * causae majores,' causes touching life,
freedom, and land. It is a vexed question what exactly was meant by
those phrases found in the charters of the larger towns (and those not
all county towns with shire courts held in their midst), which, follow-
ing more or less directly the model of London, grant that ' quod de
placitis ad coronam pertinentibus se possint disracionare secundum
consuetudinem ' of London, Oxford, Northampton, or whatever the
example may be. But at all events in the original grant to London
made by Henry I. the existence of a distinctive criminal justice for
the City is recognised by the phrase ' Et si quis civium de placitis
cor one implacitatus fuerit, per sacrament um quod judicatum fuerit
in civitate se disrationet homo Londoniarum.'

The effect of Henry H.'s legislation by the Assizes of Clarendon and
Northampton might be such as to compel the presence of a jury of
the burgesses of every borough before the justices in the shire-hall ;
and under the borough charter it might be possible to secure no more
than the right to exclude non-burgesses from juries summoned for
town suits,2 or the right to a compurgatory oath when others had
none in criminal causes : nevertheless there remains enough behind,
in these very privileges, and in the measure of criminal jurisdiction

^ Cod. Dipl. No. 1084. Kemble, lege is well illustrated by the story of
Saxons, ii. p. 332. the Bristol insurrection of 1816. Mon..

2 The value attached to this privi- Malmesb. ed. Hearne, pp. 167, 168.

PROCESS AND EXECUTION Xxi

still retained, to show what once had been the sphere of the older type
of borough court. The appeal in the busting usually led in the later
thirteenth century only to replevin till the justices came in eyre, but
appeal must first be made in the busting. The same thing is seen in
the borough processes of exigent and outlawry. It was not till 1321
that the Londoners agreed to allow that they could proceed to an
exigent only after the issue of a royal writ or judicial order.^ In
1258 and later the citizens tried to keep the justiciar out of the Gildhall;
they failed, but, in the presence of the justices, the citizens rendered
the judgments on all dwelling in the City.^ The same thing is seen
in the borough processes in pleas concerning land. The justice which
the King promised to the Londoners by charter was originally a
justice given in the City court ; later on the burgesses were willing
to receive the King's justice only when the plea had been begun in
the City court, and some fact was alleged wherefor the court could
not end the plea, and in other special cases. ^

In the case of Dover, Domesday Book * records that the King had
pardoned ' sac and soc ' to the men of Dover in return for ships, and
a royal grant may here be the source of * haute justice.' The boroughs,
which owed no suit to outside ' moots,' held within their walls a moot
which was royally privileged. The officers in charge of such boroughs
were royal officers, and to them the King looked to recover the fines
for his pleas. When at a later time the King gave the selection of
their own officers to the burgesses, the burgesses' court in some cases
continued to hold royal pleas, and the weapons of the royal power
were placed in the hands of burgesses.

The speedy * justice ' to which men caught in the act were subject
was the same in the borough as in the country ; the ' hand-having '
offender bore upon him marks of his guilt too manifest to admit of
doubt ; as a breaker of the peace caught red-handed, he had put
himself outside the peace, and rendered himself unholy, an enemy of
society, a wolf. At Pevensey (I., p. 75) the place of the gallows was at
a late date known as Wah3trew (Vargtre), the felon's or wolf's tree.
It was unnecessary to go through any solemn form of trial : hot-
blooded action in summary vengeance found here the last opportunity
which was left to it, when law set to work to restrict and formalise the
processes of vengeance. Without accusation, appeal, or indictment,
the hand-having offender was executed at Dublin (L, p. 53) in 1300, by

^ Assize Roll, 14 Ed. II. No. 547, m. ' Liber Cust. p 314 (14 Ed. IL).

70. 4 D. B. i. f. 1.

^ Lib, Ant. Leg. p. 40.

xxii INTRODUCTION

a summary * judgment ' of the tolsey, at once, whatever hour of the day
it might be, before dinner or after (I., p. 74). The * tolsey ' consisted
of a few municipal officers who could be speedily assembled, and had
not under ordinary circumstances any * haute justice.' But the hand-
having offender was never to be taken to the gaol to await his judgment
(of the hundred), unless he were of such high birth that the mayor
accorded him that grace (I., p. 53). The Halifax Gibbet Law, last
carried out in 1650,^ yields the latest instance of this speedy justice
in case of flagrant delict.

The raising of the hue and cry was attended by more risk in the
borough than in the country, for improper raising of the hue was
liable to be punished with great severity. Small fines of 3d. and the
like were usual in many villages for unjust raising of the hue, but in
Dublin the fine was 10s. The hue was in itself a disturbance of the
borough peace, which must be justified by the witness of the neighbours
who joined it ; otherwise the raiser of the hue had to go to prison
until he could find pledges. If he failed to find security for his good
conduct, he was banished from the city for ever ; for disturbing the peace
of the city he was deprived of his right to enjoy the peace of the city.

Summons. — Failing a hand-having capture, or injury so freshly
discovered that the raising of the hue could be justified, there was
another means of remedy, namely by summons, if the person
suspected was a burgess. In this matter burgesses found thj3 old
folk-law suitable to their case after it had ceased to be suitable to other
men who were bound less closely by ties of old tribal unity. The
* mannitio,' or private summons, continued in borough side by side
with the ' bannitio,' or public royal summons. At Whitby in 1185
(I., p. 89) the rule was that a man must three times ask for right at
the house of the man who had wronged him before seeking the jus-
tice of the borough, and the law of the Scottish burghs (about 1270)
gave special opportunity by means of the summons (p. 110) to allow
time for a reconciliation. Amicable agreement seems to have been
welcomed, and even in the fourteenth century Bristol (p. 89) ordered
a plaintiff to send twice by burgesses before obtaining an official
summons. The fine for putting burgesses to the oath (p. 167) may
have been intended similarly to discourage litigation between
burgesses. These rules and the rule ordering triple summons
at the house of the accused,^ long prescribed by the common

* Full references will be found in Sir ^ The rule is found in the Lex Salica.

F. Pollock's Expansion of the Comm,on When there was no house at which to
Law, p. 91, note. deliver summons because it had been

PKOCESS AND EXECUTION xxiii

law,^ in the boroughs formed a burgess privilege, for the burgess could
not be expected to summon three times the stranger whose house was
not in the town. The stranger was attached without summons. The
boroughs were willing to give further privilege to burgesses absent
from home when the summons was delivered, and absence from home
on long journeys, presumably for trade purposes, seems to be expected
in the case of the burgess. He might neglect the summons (p. 90)
if his foot were in the stirrup,^ and a similar rule applied also in the
old common law.^

The rule requiring a triple summons seems in some cases to have
made it impossible for a plaintiff to bring an action against a fellow
burgess whom he happened to meet at the assembly of the moot
(I., pp. 90, 107). The old Kentish rule (Hloth. Ead.c.8) ordered that,
if the parties met in the * Ding,' only * borh ' could be demanded of
the accused. Some old Germanic rules, on the contrary, inclined to
make it necessary under these circumstances to answer.^ The interval
allowed after summons seems to have been shorter in the borough
than in the country. Fifteen days warning was allowed by the
common law ; in the fifteenth century Komney allowed only three
days. Dublin in 1300 considered summons to appear on the morrow
an insufficient notice.

Mainprise. — The ancient forbearance of the folk-law is shown in
every aspect of the borough law. There was reluctance to subject
the burgess to the process of attachment by gage or pledge, and there
was much reluctance to arrest the body of the accused person if he was
a burgess. Mainprise was allowed even to those accused of homicide,
provided they were burgesses, a rule first changed in London in 1321,
and in the Cinque Ports maintained in the fifteenth century. A
wiUingness to accept pledges in criminal pleas was a characteristic
of old Enghsh law,'' due partly to lack of prisons, partly to the

burned, this was taken to make summons culum distulit, justum est, ut, quicquid

impossible till the Ed. Pist. (864) ordered adversus ilium habet, usque ad reditum

summons on the land where the house ejus dififerat.' At Montpellier, if the

had been. On the triple summons at the accused were starting on a journey he

house in Soest and other German towns, had only to give pledge (Giraud, i. 75).
see Maurer, iii. 604. =* Bracton, f. 336b, and see our Vol. I.

^ Bracton, f. 333. p. 90, note.

2 Cp. Strasburg, c. 30, of the twelfth " Brunner, D.B.G. ii. 834, 841 ;

century, Keutgen, Urlcunden, i. p. 95 : Maurer, iii. 604. At Cork (I. p. 107)

' Civem in procinctu itineris existentem, those who were in the borough to attend

scilicet jam navim ingredientem aut the county court could be attached

equum vel currum ascendentem, nullus without summons for the plaints of

concivium suorum per querunomam

impedire debet. Sed quia adeo se negle- * Hloth. Ead. 10 ; II. Eadw. 8.

xerit, quod causam suam in ilium arti-

XXIV

INTRODUCTION

sanctity of the pledge relationship. The willingness to accept bail for
burgesses is found also in the custumals of the Continental boroughs.^
The common law of Glanvill's day forbade mainprise where there was
an accusation of homicide, and in the following century, by the Statute
of Westminster I., c. 15, further statutory limits were ordered
without being accepted in all the boroughs which had ' haute justice.'
In London, so long as the liberty held good, the pledging was a serious
matter : as many as twelve pledges were required to release a citizen
accused of homicide, and each pledge was answerable to the amount
of his wergeld, lOOs.^ In early times the best guarantee for the
execution of justice was the rule that the kin should have their
kinsman in ' borh.' The lord's pledge or the pledge of an artificial
pledge-group was not less acceptable, and the number of pledges
required in London — twelve — may be connected with the number of
persons in the pledge-group or frith-borh. The same number twelve
was, in London and elsewhere, a favourite number for the compurgatory
oath.

There are signs that the duty of offering mainprise for a burgess
of good character accused by a foreigner was regarded by fellow-
burgesses somewhat in the light of the duty incumbent on the kin in
earHer days.^ The Etablissements de St. Louis ^ speak of the pledging
as a duty owed to friends, and sometimes there seems to have been
compulsion on burgesses to make them become pledges for each other
at least when charged with debt,^ the duty falling upon the immediate
neighbours who were perhaps in frank-pledge with the debtor. A
duty more generally enforced was the duty of the tenant to become
pledge for his lord, traces of which are found in many countries.^ Some
Irish burgesses obtained exemption from this duty by borough charter.
The countervailing duty of the lord to offer mainprise for his tenant
was also rejected in some Irish boroughs."^ The willingness to accept
mainprise in borough lasted long, not merely because it was ancient
privilege, but also because it was a useful means by which to oppose

^ Thus in the custumal of Bergerac, therefore bound to pledge.
c. 11 (Bourdot de Eichebourg, Gout. * ^tabs. i. 104, quoted in Esmein,

gin. iv. p. 1014), the burgess was released Proc. Grim. p. 56. ' Car se nous plevis-

on bail if caught or arrested for crime sons nostre ami, nous fesons ce que nous

* civiliter agendo,' as also in a ' causa devrons.
pecimiaria.' « I. p. 101 (Scottish burghs). Fertile,

2 Esmem, Procedure Grim. p. 56, iv. 512-3, on a similar rule in Italian

quotes Etaha. S. Louis, i. 104, on the cities.
pledge's fine of 100 sous and Id. « Brissaud, Droit fr. pp. 709, 1391 ;

^ The Lombard law of Eothari, 247, Leges Henrici, 44.
allowed distraint to be levied on the ^ Vol. I. p. 101.

' gafand ' who was the next heir, and

PROCESS AND EXECUTION XXV

misuses of the seignorial power.^ But the city officers did not appre-
ciate the restraint of their own powers. In the fifteenth century
imprisonment by the * commandment ' of an alderman in London,
without opportunity for bail, was a frequent cause of appeal to the
Chancery,^ at a time when the strength of the City custom had been
undermined by later legislation.

Free Custody, — If the burgess failed to find pledges, his confine-
ment was reduced, pending a decision of the plea, to the condition
known as * libera custodia ' (I. p. 64) : that is, as the * Dialogus de
Scaccario,' II. xxi. , shows, he was kept * infra septa domus carceraUs '
but he was not in durance vile, not chained or put into a dungeon.
The Scottish burghs (I. p. 65) had a rule that the accused burgess
who could find no pledges should be kept in his own house in chains
for fifteen days, and, if he still found no pledges, he was taken to the
house of the King's beadle, to be kept at the cost of his accusers, the
beadle finding the chains.

House privilege, — The forbearance of the borough law in refusing
to allow officers to enter a burgess's house to arrest, attach, or distrain
(I. p. 102 sqq.f II. p. 33) was the forbearance of early folk-law, which
made a man's house his castle,^ or rather his temple, for the sanctity
of the house seems to have been due to the religious origin of the
house-peace.^

The Londoner might be attached for * causae minores' only in
mid-street, for the house-peace extended beyond the walls of the
house, and the tenement, not the house only, was sometimes (as of
old) included in the area of exemption from arrest (I. p. 104).^
Indeed the burgess's privilege was so extended as to exempt even
his market-stalls from distress (I. p. 103). An exception, however,
was made in favour of distraint for the King's debt. The same
principle of the sanctity of the house-peace perhaps underlies the dis-
tinctions made with regard to the distress which was taken outside or
inside the house, in the hall or in the private room (I. p. 105). It
was only after judgment, not before, that some rules admitted distraint
inside the house. Others, to shorten the prolonged delays, gave the

^ This purpose was recognised in the rule in German towns.
Livre de Jostice et de Plet quoted by * Wilda, Strafrecht, p. 241.

Esmein, Proc. Crim. p. 55, ' pour * Cf. Concil. Legionense (1020), § 88,

estranper la cruaute as seignors.' forbidding officers to enter a man's

^ Trice Martin, ' Chancery Proceed- hortua to take aught ; § 41 forbids the

ings,' Archeeologia, 2nd series, ix. pp. reeve to enter the house for any plea or

1-26. to take doors in distress, in Mimoz y

^ Brissaud, p. 1365, gives numerous Komero, Fueros Municipalea.
references, and cf. Maurer, § 119, on this

xxvi INTRODUCTION

full power of distress on the second refusal, before judgment (I. p. 108).
In order not to destroy the burgess's privilege of protection in his
house-peace, some customs caused forfeiture of the franchise to precede
arrest within the house (I. p. 105). At Waterford in 1449 a
law was made that if a freeman protected a fugitive debtor with
his house-peace, he himself became liable for the debt (p. 105), and
as neither party could quit the shelter of the house in safety, the
burgess and the fugitive were made to * sit in ' after the manner of
early Germanic law.*

Appeal and Indictment, — Those boroughs which kept a full criminal
jurisdiction clung tenaciously to the process of the appeal, with all the
old-fashioned forms which testify to its origin in a formalised, legalised
blood feud. The old rule held good that if neither the man who had
suffered the wrong nor one of his kin appeared to pursue the appeal, no
appeal could be brought. * Wo kein Klager ist, da ist auch kein Eichter.'

In the fifteenth century (I. p. 73) the appellor was compelled to be
his own executioner, executing thus, through the appeal and under
legal sanction, a private vengeance.

In the Cinque Ports there was a tendency in the fourteenth and
fifteenth centuries to confound the appeal with the indictment under a
verdict of a coroner's inquest. After an indictment a term of * three
hundreds ' was allowed to elapse, in order that a prosecutor might
appear. This term may at one time have tallied with a term of * year
and day ' allowed in the appeal : such a term was introduced into the
statute law by the Statute of Gloucester, c. 9 (1278), which aboHshed
the old necessity for * fresh suit ' in the appeal. Furthermore, it is
noticeable that the same method of compurgation acquitted a man
both in the appeal and in the indictment.

Trial by Battle, — The exclusion of trial by battle from the boroughs
was subject to various exceptions, showing that the burgesses only
gradually arrived at a complete exemption. In the boroughs which
had not control of the Kmg's pleas, the duel had to be allowed where
the law of the land required it, and even where the burgesses were
exempt in charges of felony, they still had to allow the duel if the
appellor was a foreigner bringing appeal for the death of a foreigner.
This was the case at Bristol about 1188, but Dublin about 1300
(I. p. 37) declared that the appellant's weapon, the * baculus
cornutus,' was broken as against a citizen, for the citizen might not
come to battle. In other boroughs it was necessary for the burgess,

^ Cf. the rule descriptive of the insitting ' at Cork, I. p. 95, and on ' Hausarrest '
8.V. vnnesitten in Schiller and Ltibben's Worterbuch.

PROCESS AND EXECUTION XXvii

who was to fight a foreigner, to quit the borough — such seems to be
the meaning of some obscure passages; battle fought within the
borough ' gri^ ' would be a disturbance of the peace. Another inter-
pretation is, however, suggested by the fact that if two London
burgesses were the parties in the suit, both might agree to accept
trial by battle, but a temporary loss of franchise seems to have been
inflicted in order to secure to Londoners their privilege.^ At Preston,
when the court had to adjudge the duel in an appeal brought by a
knight against a burgess, the knight was not allowed to have a substi-
tute without sufficient reason.^ There is some indication of the
intention of the burgesses to make it difficult for the foreigner to win
in battle against a burgess in the Fordwich rules for the approver's
duel (L p. 32). If a foreign approver appealed a burgess, the burgess
was armed with an oar and sat in a tied boat, while the approver had
the * baculus cornutus ' but stood in the water, and so could not come
to close quarters.

Compurgation. — Hostility to the duel was counterbalanced in the
boroughs by a faithful devotion to the merits of compurgation.
Although the system of compurgation was tolerated by the common
law in civil actions till long after the close of the Middle Ages, and was
not abolished till the Act of 3 and 4 Will. IV. c. 42, s. 13, in the
criminal law it died out in the reign of Henry H., under the influence
of the Assize of Clarendon.^ Only in some of those boroughs which
possessed high criminal jurisdiction and the chartered right to deal
with pleas of the Crown according to old custom, the compurgatory oath
was admitted as one of the forms of criminal trial when it was long
ago forgotten elsewhere. In London the democratic party among the
citizens agreed to allow the custom to be set aside at a time when the
London officials were on trial (1257). Arnold FitzThedmar laments
the lack of appreciation which the poorer citizens showed for a custom
which had cost former generations of citizens large sums.* In the

* The Sicilian laws forbade the duel * Liber de Ant. Leg. pp. 35-6. In

even by agreement of the parties 1301 the judges, sitting under a special

(Briinneck, p. 332). The Freiburg-im- commission at Leadenhall, refused

Breisgau custumal, c. 19, ordered ' Ex- the ' parva lex ' (the seventh hand)

traneus cum burgensi duellum non to London citizens, accused of wounding

habebit nisi ad voluntatem burgensis.' J. le Chaucer to the risk of his life, as

On the duel in Valenciennes and other being directly contrary to the common

towns, see Bauchond, Valenciennes, p. law of England. Ann. London, ed.

103. Stubbs, p. 128. Again, in 1329 before a

^ Rouen allowed no hired champion special commission of judges at the

to appear against a citizen. Giry, J^tabs. Gildhall, leave to find compurgators was

i. 25-6. Giry, Docs. p. 27. denied in a charge of conspiracy. Ih.

^ Thayer, Evidence, p. 26. p. 244.

Xxviii INTRODUCTION

Cinque Ports the compurgatory oath was admitted in criminal trials
until in 1528^ it was excluded from the reformed custumal. That it
should have lingered there so long as a process fit to meet some
even of the gravest charges is no doubt due to the restricted sphere
within which it was admitted. It could not be used in cases where
there was * proof manifest,' the actual evidence of guilt ; it could be
used only in cases of suspicion, and thus it was reduced to the position
of testimony to character. Its usefulness in this direction gave
compurgation its longevity in the common law as a process of trial in
pleas of debt and minor civil charges, and the same reason may
account for its use for other purposes in the borough.

The custumals, which retain much of archaic law in many matters,
yield but one reference which serves to show the original basis of the
whole system, the solidarity of the family. That in the earliest times
the compurgators were required to be kinsmen of the principal appears
from a twelfth-century London rule (I. p. 47). If a citizen killed
someone who had entered his house, he might acquit himself with six
kinsmen if he swore that he killed the man because he had been
billeted upon his house without his consent. The intruder who had
forced himself upon the citizen's hospitality had been guilty of
hamsoken ; the householder could slay him in the act and be clear of
the death as against the King, the kin, and the lords of the dead man.^

From the necessity of finding kinsmen some classes of persons
were relieved in early times, for instance, the clerks ; by the Anglo-
Saxon laws they w^ere required instead to find compurgators of their own
class. This became the rule of the boroughs where kinsmen might
not be compurgators (I. pp. 38, 50) ; ^ in the towns a man's ' amici '
were his fellow-burgesses,^ who were united to him by a bond of
common interest which tended to replace the bond of kinship, and
it is tempting to connect the group of twelve compurgators with the
group of the 'frankpledge,' the artificial unit which took up the
responsibility of the family.

What we are told of the Londoners' oath suggests that in any

^ The fate of the compurgatory of Boulogne's attempt to exercise the

system on the Continent is explained in ' droit de glte.' A list of towns which

Lea, Superstition and Force, pp. 70-4. enjoyed the London exemption from

Giry notes its absence at Eouen, and it billeting ' by force, or by colour, of the

was absent also in the custumals of the livery of the marshal,' is given by Mr.

Bordeaux group. It was almost extinct Ballard, Eng. Hist. Bev. xiv. p. 96.
m Valenciennes in the fourteenth cen- ^ Cf. Lie'bermann, Gesetze der A. S.

tury. Bauchond, pp. 100-1. ii. 236, and Steenstrup, iv. 238-43.

The troubles at Dover {A.-S. Chron. ^ Cf. Lea, Superstition and Force,

1048) seem to have arisen out of Eustace p. 33 ; Keutgen in E.H.B. viii. p. 125.

PKOCESS AND EXECUTION xxix

scheme for discovering the numerical basis on which Anglo-Saxon
compurgation was arranged/ allowance may sometimes have to be made
for the repetition of the oath by the principal and his group of com-
purgators. The Londoners, at least in their * media lex ' (18 oaths),
regarded an oath repeated a certain number of times by the same
person as equivalent in value to the same number of oaths from
different persons. The merits of the repeated oath are familiar to
schoolboys, who perhaps follow an ancient method when they screw
the oath a twist tighter at each taking. The suspect schoolboy may
have to answer in succession the questions, * Will you take your oath ?
your solemn oath ? your solemn dying oath ? ' and answering * Yes '
to all these questions, break down at the really crucial test, * Bet a
penny ? ' — so at least an Etonian informs us. * I have said it once, I
have said it twice, what I say three times is true,' may have repre-
sented a very ancient view.^

Besides the evidence which the custumals offer of the use of the
repeated oath, they offer also illustrations of the methods adopted
in the selection of compurgators. The London ' great oath,' used only
in the gravest charges, was at the end of the twelfth century an oath
of thirty- seven persons, the principal and eighteen men chosen from
one side of the Walbrook, and eighteen men from the other, selected
not by the principal but by the court.^ The Cinque Ports scheme was
on another plan, which finds a counterpart in certain statements of
early law. The man appealed of felony had to produce thirty- six
persons willing to swear with him, and from this number the court
chose twelve who actually swore, in support of the oath of the principal.
The possibility of a selection by the magistrate of a smaller number
of swearers from the total number offered by the party is referred to
in the Leges Henrici Primi, 66. 9.^ A more usual form of the * cyrea-S,'
as distinguished from the ' ungecoren a'S,' with compurgators chosen

^ Cf. Cliadwick, Anglo-Saxon Insti- was probably due to something more

tutions, p. 140 sqq. than the mere danger of shps m utter-

'^ Cf . the foreigner's oath in six ance of the formulary when frequently

churches (I. p. 177). Three, four, six, repeated.

nine, and twelve oaths of this sort appear ^ A citizen of Norwich in 1250 swore

in English and German laws. E.H.B. before the justices in the coimty court

xvii. p. 490 ; H.E.L. ii. p. 213 : the London * great oath,' with eighteen

Maurer, iii. 655, note, and 667 ; Lea, from each side of the ' river of Norwich '

Superstition and Force, pp. 26-7 ; Orig. (Wensum). Becorda of Norwich, i. p.

Island, i. p. 312. Bigelow, Procedure, 202.

p. 303, suggests that the repeated oath ^ Selection by the bishop was

was the ' sacramentum fractum,' distin- common in the ecclesiastical courts,

guished from the * sacramentum planum,' E. K. Lyle, Office of an English Bishop,

which was an easier test, but the diffi- Pennsylvania Univ. Theses, p. 101.
culty of the 'sacramentum fractum'

XXX

INTRODUCTION

by the principal, was a selection of compurgators by the hostile party.
This appears at Leicester in the thirteenth century (I. p. 164), and
may perhaps be traceable to Danish influences.^ The use of the ' lot '
by casting a knife at Ipswich (I. p. 179) may with more certainty ^ be
regarded as Danish. The compurgators were divided into two groups
of five each, and a knife was thrown so as to fall between them. The
group towards which the point fell was selected.

Compurgation hy Women, — In the EngUsh boroughs the power of
the wife and of the single woman to * defend ' (below, p. cxiv) carried
with it the borough privilege of compurgation.^ The question whether
a woman might bring women as her compurgators was being decided
in the negative in the common law^ while it was allowed in the
boroughs, notably in the case of women brewers. London and Lincoln
(I. pp. 185-6) allowed women in the fifteenth century to bring either
men or women at their choice, and retained in this matter the ancient
practice of Anglo-Saxon times. ^

Witnesses. — Understanding of the rules of the custumals on the
subject of the production of witnesses is rendered difficult by the
uncertainty which may arise as to the meaning of the word in each
case. In the early texts * testis ' may be translated compurgator,^ for
the * testis ' was a compurgatory witness, swearing his belief in the
oath of the principal, not because he saw or heard the facts sworn to,
but because he believed the report of others ; sometimes the * testis '
was the actual witness of an agreement whose witness was solemnly
* taken * to the act, and who therefore could be compelled to appear
to support it ; sometimes the casual bystander who happened to see
and hear ; sometimes the * community ' witness, whose duty passed
into that of the jurors of the inquisition and the assize.^

The earlier rules required the plaintiff to support his claim with
the offer of a suit of witnesses, to whose testimony the court could turn
if the compurgatory test was not granted, but the customs do not
flhow the stages of the transition which made the plaintiff's pro-
duction of * suit ' pass from a reality to a mere form. But it is

^ Steenstrup, Norma/nnerne, iv. p. ^ H.E.L. i. 467-8.

235 ; Lea, Superstition, p. 46. It was ^ Essaijs A.-S. Law, p. 356 ; H.E.L,

common among many Germanic peoples. ii. 435; Lea, Superstition and Force,

D.E.G. ii. 383 ; Maurer, iii. 718-9. p. 72. A Lille oath of denial with two

See also 2 Cnut, 65. conjurators of the same sex as the

^ Cf. Leges Henrici, 66. 10, and swearer is mentioned.
Liebermann's note. « Brunner, Forschungen, p. 92 ;

3 The custom of Ol^ron, c. 89, did D.R.G. ii. 378 ; Thayer, Evidence, p.

not allow wopaen to make an oath except 25.

by proxy, and this from reverence for "^ Cf. I. p. 273, the twelve witnesses

the sacred books and the Gospels. of seisin in the Scottish burghs.

PROCESS AND EXECUTION xxxi

repeatedly made clear that the burgess must produce * witness ' against
a burgess before he can have an action, and that the foreigner was not
in all cases similarly protected. Against the foreigner ^ the burgess
appears to have been able to use a power somewhat analogous to that
right of accusation * ex officio ' which belonged to the King's officers
until Magna Carta art. 38 deprived them of it. In this matter, as in
other matters, we find the individual burgess acting as though he had
the powers of a royal bailiff.

In one early custumal (I. p. 167), that of Pontefract, we are told
that a burgess is bound to * answer ' another burgess though the
accuser has no witnesses, but that, if he be put to the oath (except in
plea of debt) by a burgess, that burgess will be fined. He ought to
have been content, we take it, with an unsworn simple denial in such
a case, or should have submitted the matter to arbitration. A twelfth-
century custumal of Worms ruled that if two burgesses were in liti-
gation, 'minister cum subjectis sibi concivibus sine juramento
determinet in levioribus rebus.' ^ At Pontefract, again, the foreigner
who put a burgess to the oath was fined, but not the burgess who put
a foreigner to the oath. The foreigner could have no action against
the burgess without witness except in a case of debt, or where the
misdeed was * apparent ' and therefore needed no witness. In the
case of debt it seems to be assumed that the foreigner has something
to show which will do instead of witness, be it gage, tally, or the
record of the market officers (see below, p. xlv).

At Preston (I. p. 172) the plaintiff had to produce in court only
one out of the two witnesses whom he had offered, therein following
an ancient rule.^ In London, Bristol, and the Scottish burghs
(I. pp. 166-7) there was a rule which made it necessary, when a
burgess and a foreigner were the hostile parties, for the party proving
by witnesses to produce a witness or compurgator whose relation to
the franchise was like that of the opponent : thus a burgess must have
one foreign witness or compurgator, a foreigner must have one
burgess witness or compurgator. At Manchester (I. p. 166) the
villein who impleaded a burgess had to have * suit ' of the burgesses
or other lawful men. At Okehampton only one of free condition
could stand in law against the burgess (I. p. 170). At Exeter, if a
burgess were accused by a foreigner, each side having brought
a * secta,' "^ the defendant burgess was accorded by | judgment the

^ Pontefract, p. 167 ; Manchester, p. wesens, p. 148.
167 ; L, Q. B. p. 179. ■' Thayer, Evidence, p. 12.

* Hegel, Entstehung des d. Stddte- ^ Cf. Thayer, Evidence, pp. 21-2.

xxxii INTRODUCTION

compurgatory oath with the (two) persons who came as his * secta '
(I. p. 167) . This does not argue a determination to favour the burgess,
for at Preston (p. 178), in a plea of debt between burgesses, the
defendant had the compurgatory oath with the third hand, although
the plaintiff brought witnesses ; and Manchester had a similar rule
(p. 180). In the Cinque Ports the defendant was not allowed to have
the compurgatory oath if the plaintiff were supported by witnesses,
and as a rule compurgation would in the same way not suffice against
a tally ^ (pp. 177, 181, 184, 202). The scope of the system of compur-
gation was here kept within reasonable limits. In the later customs
(I. pp. 182-3, 204) the defendant's nude parole was allowed to meet
a plaintiff's charge if it were unsupported by tally or witness : ^ and
where the plaintiff's * simple voice ' had to be met by compurgation,
the phrase may be used in contrast to tally, not as implying the
absence of suit.

Little is said on the subject of the examination of witnesses : a
London rule (I. p. 169) dwells rather on the necessity of examining
into their private character than on the examination of their evidence.
The Londoners, indeed, argued that the oath of compurgators was pre-
ferable to the oath of witnesses, as witnesses were apt to be suborned,
and brought forward by the plaintiff after the defendant had offered
compurgation, merely in order to deprive him of that method of
proof 3 (I. p. 169).

There is an important passage in the Scottish custumal (I. p. 167)
which shows that when proof by witnesses was ordered by judgment,
the witnesses swore to the truth of their testimony, while the producer
of the witnesses was not bound to swear."^ The examination of con-
tract witnesses is only twice described (I. pp. 168, 203).-^ In 1501
(I. p. 170) at Kilkenny the accuser (if of good repute), his wife and
servants, were authorised to appear as witnesses.

Archaic Rules concerning Oaths, — Many curious and ancient practices
have left their traces upon the forms of oath described in the

1 The exception was Ipswich, when be ' minus idonei ' in the Court Chris-
tally was produced, but * law merchant ' tian. H.E.L. ii. p. 345, note.

was not claimed. 4 X).i^.G. ii. pp. 435-6.

2 The Lorris Custumal, c. 32 (1155), » 'j^y^qj.q jg an interesting case in the
allowed the sole oath to meet a Liber Ordinacionum (Gildhall, London),
charge unsupported by ' testimonium.' f. 1656 (33 Ed. L), showing how witnesses
Nouvelle Revue Historique, viii. p. were examined. In this case some wit-
466. ^ nesses who were not present at the

^ The same feeling was shown in the making of the agreement swore to it on

preference for wager of law in the lay the ground that they believed what

court to proof by two witnesses, apt to others had told them.

PKOCESS AND EXECUTION XXxiii

custumals. Conspicuous among these is the Londoner's opportunity
for an oath ' super mortuum ' if the testimony of the dead man were
desired (I. p. 48). A belief characteristic of primitive faith had
become outworn in 1268 when the royal charter of Henry III. rejected
the old custom. The custom was rooted in the idea that the ghost of
the dead man haunts his tomb, and that it was therefore possible to
obtain sanction or rejection for the oath which the living swore upon
the tomb. An oath taken on the grave of a dead witness by a
surviving witness was regarded as the dead man's testimony. The
Londoner's * sacramentum super mortuum ' finds one of its most
picturesque illustrations in the Manx law. Until 1609 a claim against
the executors held good if the creditor, lying at full length on his back
on the grave of the deceased, with a Bible on his breast, swore that
the dead man owed the money.^

Another oath not less archaic in character was the oath taken by
the Preston burgess 'on his arms,' when he agreed, with his kinsmen's
consent, to compromise a blood-feud (I. p. 30) and accept compensation.
The oath on the arms was one of the oaths used by the Germans in pre-
Christian times, and a favourite with the Danes. The passage in
question gives also a reference to the interesting oath made by one
who gives compensation, that he would accept a similar compensation
himself if he were similarly wounded. This oath removed the old
sense of dishonour which at one time accompanied even the judicial
reconciliation of the parties at feud,^ The compurgatory oath did
not always have to be taken in person even by the living. The
laws of the Scottish burghs allowed a knight who was accused of debt
to put in his steward as a substitute, provided the plaintiff had not got
witnesses (L p. 179).^

At Exeter late in the thirteenth century (I. p. 177), perhaps owing
to the strength of ecclesiastical influences, the oath was forbidden at
certain sacred seasons. The laws of Eadward and Guthrum, 9, and
the laws of Cnut, I. 17, and the Leges Henrici Primi, 62, had forbidden
ordeal, and oath, and all the processes of law, during seasons when the
peace of God was to reign. The Norman custom was equally strict.^
At Exeter the difficulty was overcome by the use of the * affidation,*
a pledge of Christian faith. The Christian accused by a Jew
(I. p. 201) could be replevied on his affiance. The self-pledging of the

^ For full references see E.H.B. xvii. to the lord's right to a substitute, a pri-

p. 489. vilege forfeited on the second summons

2 D.B.G. i. p. 161. Cf. Leia Willelme for debt.
10, 2; Steenstrup, iv. 316-9. ^ Gruchy, Anc. Cout. de Nor. p. 186.

^ The Dial, de Scacc. II. xxii. refers
VOL. II. b

XXxiv INTEODUCTION

afl&ance had probably ceased to require any of the old ceremonial which
connects it with the contract made with the ' festuca,' but the affiance
made by the prosecutor on the bailiff's rod or mayor's mace
(I. pp. 96-7) may have very ancient roots.

The Decisory Oath, — The existence of the decisory oath in London
(I. p. 184) has been noted ere now.^ The date of its introduction by
ordinance can be precisely determined as 1356.^ This slip of Eoman
law was grafted on the usage of the civic court probably in imitation
of the ecclesiastical practice.

Punishnent. — The painful subject of the barbarities of ancient
punishment (I. pp. 73-77) does not call for much detailed commen-
tary : it is mainly interesting as showing the stages by w^hich a system
of private execution, which required sometimes the offender, some-
times the offended party or his kin, to accomplish the death or dis-
memberment, was exchanged for one of public execution. At a late
date men had to cut off their own ears to free them from the pillory
or the wheel (pp. 55, 57). In the fifteenth century (I. pp. 73, 74),
the appellor who failed to find a hangman or to do the hanging
himself was kept in prison with the felon till he did one of these
things.^ To the capturer of the thief sometimes fell the duty of
cutting off the thief's ear (p. 56). According to Coke,^ the wife and
kin of the appellor dragged the appellee to execution even in
Henry IV.'s days, but the common law probably in the twelfth
century no longer made the private execution a duty, though it still
allowed it.^ The borough customs prolonged the old system which
regarded the private execution as a duty.

The deaths by drowning or by burial alive referred to in some of
the Cinque Ports rules find counterparts in many places, and were
regarded with special favour by the Frisians.^ At first these penalties
may have had religious significance, involving the idea of sacrifice to
reconcile an angry deity : at a later time the view may have been that
God was here His own executioner. Tacitus speaks of burial alive as a
Germanic punishment for peculiarly disgraceful offences, but in Denmark
women were buried alive, and not hung, out of respect for their sex. ^

^ H.E .L. ii. 634. formed the execution at Arques in 1231.

^ See vol. I. p. 184, note 5. There is Lea, Superstition, p. 13.

also an instance of its use in 1339 in *^ Burial alive was practised at Va-

the London husting. Pleas and Mem. lenciennes in the sixteenth century.

Roll A 3, memb. 11. Bauchond, pp. 60-1, 259. On burial

^ Cf. Brunner, D.B.G. ii. 472. alive in Ireland, see K. Meyer, Cain

* Co. 3 Inst. 131. Adamndin, p. 35.

^ Liebermann, Gesetze der A.-S. p. ^ Dahlmann, Gesch. von DdnemarJc,

644. The accuser and his family per- iii. 12. Glotz, Ordalie dans la Grece

PROCESS AND EXECUTION XXXV

The ancient horror of arson is expressed in the Dublin rule which
burned the incendiary in the fire which he had made, if he could be
caught (I. p. 77).

The penalty which required loss of a hand for injury done to a
borough officer (II. pp. 20, 24-6) may be connected with the old
punishment for perjury ; ^ the offender lost the offending member
perhaps with some thought of his failure to keep an oath sworn to the
borough.

The curious rules allowing a certain number of repetitions of
the offence, with a penalty of loss of member, leading finally to
punishment by death, may be traced to the old Germanic principle
which required that frequent repetition of small theft should in the
end be punished like a large theft.^ The cutpurse (burgesses' wives
seem to have carried only a few pence in their purses) on a first
offence was marked by loss of an ear, on a second by loss of the other
ear, and died for the third offence.

Something in the nature of the old compensation or * bot ' for
grave offence appears in the Preston and Manchester rules (I. pp. 30,
31), in the amercement for bloodshed without mayhem (I. p. 85), and
in the references to extra-judicial agreements to accept a price, which
were to be sanctioned by authority.

Damages for Wounds and Leech-fee, — The Preston customs (I. p. 30)
treat of the old tariff for personal injuries, the payment per inch of
the wound in a covered or an exposed part of the body, and also of
the payment of the leech-fee.^

House Destruction, — Besides that private vengeance of which
examples have been given above, there was in the boroughs a public
vengeance by house destruction, a punishment of an extremely archaic
kind.^ The penalty of house destruction for communal offence, though

2)rimitive, suggests that both forms of in addition to those named in the text,

penalty, drowning and burial alive, were II. pp. 38-40: Grimm, D.B.A. ip. 132;

forms of ordeal. The ordeal by burying VioUet, Communes (Mems. de I'lnst. de

was known to Germanic law, E.H.B. Fr.), p. 416 ; Brissaud, p. 1373 ; Keut-

X. 725. gen's Urkunden, i. 103, 118, 121, 140,

^ H.E.L. ii. 540 ; Brissaud, pp. 196 ; Giry, £tahs. de Bouen, caps. 11,

1362, 1404 (notes). Blackstone, iv. 125, 28, 34, 37, Giry, Dociiments, pp. 24-5 ;

notes that it was the penalty in his day Le Glay, De VArsin et de VAhattis de

for striking in the king's courts. Maisons, in Bull, de la Gommias. hist.

2 D.B.G. ii. 646-7 ; Laws of ^Ethel- du dep. du Nord, i. p. 248 (1843), and

red, i. 1, 6; Cnut, ii. 30-4. many references in Bauchond's Valen-

^ To the references given in E.H.B. ciennes, p. 263 and passim. The town

XV. p. 505, we may add one to Kuno histories of Lille, Gand, Ypres contain

Meyer's Cain Adamndin, p. 29, and much information. See also Barckhau-

Steenstrup, iv. 314. sen, Bordeaux, p. 284, and s.v. con-

■* A multitude of references could be demnare in Du Cange.

collected, but here a few must suffice,

XXXvi INTRODUCTION

not confined to the Cinque Ports, was singularly persistent there, as the
punishment of burgesses who refused to accept municipal office. The
man chosen to the office of mayor or jurat was obliged to serve under
pain of incurring the destruction of his house. The idea expressed in
this rule represents one of the main principles of Germanic justice ;
it tells of the community's right to ravage the land and destroy the
house of an outlaw, of one who has made himself an enemy of
the community, who has broken the peace and set himself outside
the peace. What was once a religious purpose, as Dr. Brunner
tells us,^ the purpose to wipe out all trace and memory of the male-
factor and of his misdeed, became in the Cinque Ports a merely
processual penalty. The person of the occupant of the house was
not in all cases endangered, but his property was exposed to the public
vengeance in order to bring him to reason. Side by side with the
right of ravage, and as an alternative to ravage, we see also the
sequestration of the house. The house was not always razed to the
ground ; but in some towns the occupants could be ejected, and the
house shut up pending the time when the burgess should repent of
his contumacy and make amends.^ In London in 1415 a man's
house was sequestrated on his refusal to serve as alderman.^ In
the Scottish burghs, where the houses of all * rebels against the com-
munity of the town,' or defrauders of the community, were destroyed,
the offenders were furthermore banished from the town (II. p. 38). For
civil offences which did not entail the penalties of true outlawry the
town made (so to speak) its own process of outlawry; the houses
which were protected by the borough peace could be put outside that
peace, and robbed of their sanctity. Defiled by the presence of one
who was a perjurer to the community, the house was unholy. The
community was injured by the loss of a house, paying rent, may be, to
the borough chamber, yet destruction was ordered perhaps with the
idea of staying further loss, as destruction was ordered to stay the
spread of fire. The destruction of the house could not well be by
means of fire in the boroughs, without risk to the surrounding houses ;
but, in many cases of house destruction by way of penalty, fire was
preferred as the means most effectually purifying.^

1 D.B.G. ii. 227 ; Forschungen, p. ^ Riley, Memorials, p. 601. Alder-

451. men refusing office were imprisoned in

^ At Beverley, in 1381-2, one pkrty the seventeenth century. Bemem-

in the borough destroyed and also sealed brancia, p. 4.

up the houses of the members of the * Cf. the destruction of heretics'

hostile party, ' acrochant sur eux roial houses, Lea, Inquisition, i. 319, 321,

poiar.' Trans. B. Hist 8oc. xix. p. 92. 481-3 ; ii. 163. Assize of Clarendon, c.

PKOCESS AND EXECUTION XXXvii

The Flemish boroughs used the destruction of the house as a
penalty for contumacy so late as the fifteenth century, but it tended
to be used only against men who dwelt within the area of borough
jurisdiction, but without the walls. The burgesses rode out to the
burning of the house of the offender in armed and warlike array.
The * chevauchee ' was thus used as an organisation of police.^
Nothing of this sort is met with in the English custumals, though
Athelstan's law, II. 20, and the Ordinance of the Hundred, ascribed to
Edgar, might lead us to expect it.

In the district of Archinfield (I. p. 30), a Welsh district colonised
by Englishmen, we find in 1086 a still more elementary form of house
destruction, extra-judicial, and performed by the kin of the injured
party. The destruction was to be by fire, and this is a clear sign that
the process was expiatory.

Expulsion from the city was another means of protecting the peace
of the town and was used when there was fear of the repetition of
offences against town law. A man could be * cast out of the com-
munity ' for a variety of offences. How far this may be regarded as
a form of outlawry is a disputed point. ^

Forfeiture for Felony, — The extreme severity of the early vengeance
sanctioned by Germanic law led in time to a reaction. Some early
codes of law extended protection to the property which would fall to
the innocent heirs of the offender, more especially when the offender
had expiated his offence by death.^ The lands of the dead felon were
treated in a different way from the lands of the living outlaw, and this
old rule, transmitted through the general custom of Kent, seems to
have influenced the custom of the Cinque Ports.* In the Anglo-
Saxon laws both principles, the one working for total forfeiture,
the other working to protect the innocent wife and children,
may be seen side by side, and the same is true of the law as

21. The felon's house was unroofed and kinsmen.

destroyed by fire according to the cus- ^ g^e Schroder, D.B.G. pp. 722-3

toms of Normandy. Gruchy, p. 66. (1894).

The early pipe -rolls of Henry II.' s reign ^ Brunner, Forschungen, p. 457;

sometimes contain the entry ' in domo D.B.G. ii. 599 ; Caillemer, Confisc. et

ad comburendum unum latronem j.m.' Admin, p. 4.

(1155-6, p. 4). See also Oblat. Joh. pp. * TheLudlowrule (1461), Vol. I. p. 68,

568-9. may not be derived from old roots. Nor

^ Guilhiermoz, Origine de la No- can we argue much from the curious

blcsse, p. 261, note, shows that the Halifax claim made in 33 Ed. III. that

' chevauchee ' could be used by way of tenants of the lordship who were be-

execution of justice. Comparable is headed for theft or other cause suflfered

Jud. Civ. 8. 2-3 on the arrangements in no forfeiture of their inheritance. Harl.

London for riding out against a thief MS. 797, quoted in Watson's Halifax^

who was protected by a strong group of p. 225.

XXXviii INTRODUCTION

represented in Domesday Book. While the law of Edmund, II. 1, 3,
speaks of loss of ' all ' to the King,^ and the law of Athelstan, II.
20-4, allowed half the spoils to the King, the other half to the
executors of the vengeance, a wife's * third ' met with protection
under the laws of Ine, c. 57 ; and the laws of Edward the Confessor, 19. 1,
gave to the innocent wife of a felon her dower and marriage portion,
and to the children the inheritance (of land). The Leis Willelme,
c. 27, treating of the case of the hand-having thief, gave the goods of
the thief in shares to the lord and the wife of the thief. Similarly
the London ' Judicia Civitatis ' of the tenth century gave to the King
a third, to the innocent wife a third, and to the fellowship, those who
had undertaken the pursuit, a third ; and the lands were also, it seems,
shared similarly in thirds (if the land were * book land or episcopal land '),
while the * folk land ' went to the kin. Traces of this system appear
also in Domesday Book. In Nottinghamshire a thegn having sac and
soc, who incurred the penalties of forfeiture, lost only half his lands
and goods, the other moiety being reserved for his wife and kindred.^
While the laws of the Cinque Ports, as we know them from much
later sources, gave the inheritance of the lands (after year and day) to
the heirs, Domesday shows that in some of the boroughs a total
forfeiture of land and chattels to the King was the rule. In
Chester he had the full forfeiture, and in Oxford only the wife's
dower was saved. In the twelfth century, according to Glanvill,
vii. 17, § 4, escheat of the felon's land to his lord was the rule, and the
* Dialogus ' gives the goods to the King under the Assize of Clarendon.
The question whether felony was a feudal or a national offence was
being fought out in the twelfth and early thirteenth centuries, and the
claims of the widow and heirs were no longer considered in the
common law. At first it seemed likely that the King's claim, as repre-
senting the claims of the State, would triumph, but the hold of the
lords was too strong, and in the end the King obtained only the
chattels and a right to execute the * ravage ' on the lands during year
and day. The right of ' waste and strep ' which resulted from the
compromise of Magna Carta, c. 32, was all that was left of the old
process of ravage in expiation. The lord's escheat, the punishment
for felony viewed as a feudal offence, took effect only after the expia-
tion of the offence done to the national peace had been accomplished.
In some of the Cinque Ports, the mayor and community held the
lands for the King's year and day, and after that the heir was per-

^ Cf. also the examples from charters in Kemble, Saxons, i. 157-8, note.
^ D.B. i. f. 280 b. (1).

PROCESS AND EXECUTION XXxix

mitted to enter. Only if there were no heirs, the land passed to the
lord of the fee. In London and generally in the boroughs forfeiture
for felony was admitted together with the feudal escheat to the King
as lord. It is strange that more of the old boroughs did not establish
the custom as found in the Cinque Ports, for the Continental boroughs
in many cases excluded the forfeiture for felony.^

Beasts damage feasant. — The custumals (I. pp. 87-8) show traces
of a retention in the boroughs of the old principles of the folk-law
in deahng with animals which strayed upon ground not belonging to
their owner. The injured party could, in the Scottish burghs, execute
a summary private vengeance upon the goose which he found doing
damage, and take the flesh for his own consumption, leaving only the
beak stuck in the soil in notification that an act of vengeance had
been accomplished. He might treat pigs and goats in a similar way.
These severities were permissible only as against beasts which were
not commonable ; an opportunity for redemption had to be allowed
in the case of beasts which were commonable. The non-commonable
hog, goat, and goose ^ had less protection from the law than other
animals. A German proverb ran, * Ganse bezahlen mit dem Kopf,'
* Ganse haben kein Kecht.' ^ But in the case of other animals the
owner might either amend the damage done by his beast, or redeem
his beast by paying a penny for each of its feet, at the injured man's
choice.* It is possible that the redemption of the foot arose out of
the avenger's right to dismember the animal by cutting off the
offending part.^ The fine for the wandering pig was in more than
one case a penny per foot.^ At Portsmouth the third offence of the

^ At Leon, in 1020, the lord had half life and goods,
the movables, the wife and heirs the ^ Gruchy, Cout. de Nor. p. 29.
other half with all the houses and land. ^ D.B.G. ii. 532 ; Gierke, Das Humor
Muiioz y Komero, Fueros Municijpales, im deutschen Becht, p. 46.
p. 66, citing Concil. Legionense, c. 24. '^ The nature of this payment, as a re-
Bordeaux, c. 21, gave the land to the demption of the animal from the venge-
next heir, and so also Bergerac, c. 132. ance of the injured party, comes out very
At Agen,c. 15 (BsLVckhaMsen'sBordeaux), clearly in the laws of Oleron. Brunner,
the wife's right was saved when for- Forschungen, p. 515.
feiture for theft was taken. The Sicilian ^ Amira, ' Tierstrafen ' in Oester-
law, which saved to their innocent wives reichische Gesch.forsch. xii. The Scot-
the goods of traitors, gave dower if there tish Beg. Maj., c. 30, gave the kin of a
were no children, or a third of the com- man who was killed by a horse's kick
munity-goods if there were children ; in the foot of the horse, or a quarter of the
such case the other two parts went to horse's value. At Falaise a pig that ate
the daughters, males being excluded. the face of a child lost the snout and one
Briinneck, Sic. mittelalt. Stadtrecht leg(Amira,p.553). Othercasesof thedis-
(Darstellung), p. 6. In Ghent (Diericx, membering of animals are cited by Amira.
Coutumcs de Ghent, p. 226) there was ^ Leicester Becords, ii. 103. Of. Dub-
no forfeiture for a burgess's felony. Lille lin Custumal, p. 263. London Liber
(Roisin, p. 114) allowed no loss of both Albus, p. 270.

xl INTRODUCTION

wandering pig could be summarily avenged by smiting off the snout
*by the eyes,' this portion perhaps being alone retained by the
avenger. In early rules the flesh with the hide was generally returned
to the owner/ or at least a part of it.^

Innocent Intent. Self-defence. — The wreaking of vengeance upon
the animal was one expression of the inability of the early law to
inquire into questions of intent. The deed, however accidental, was
taken as the manifestation of intent ; the guilty intent which resulted
by accident in no guilty deed was deemed harmless. Ancient law
could not discuss the question of intent because it had not the
machinery wherewith to accomplish inquiry. While prepared to allow
that proof of malice aforethought made guilt worse, the old law could
not allow that absence of intention should be construed to prove
innocence. The Dublin custumal repeated the widely spread teaching ^
that any act, however innocent, which set a man * nearer to death
and further from life,' was a criminal act, and the Dublin custom
applied this doctrine in a very systematic way. It would seem that
offences which were not criminal could be made the ground of an
appeal of homicide if they could be put forward as conducing, how^-
ever indirectly, to a death. Thus appeal might lie against one who
secretly secured the services of a servant engaged by another. Should
the original master of the servant, or one of his family, die for want
of a servant, the servant's new master was answerable (I. p. 216).
The same code ruled that the killing of a man's dog made the owner
answerable for all damage that might come to him for want of his
dog (I. p. 81). Presumably the death of a man who lacked a dog
to defend him (Irish dogs being good fighters) might give ground for
an appeal against the dog-killer.

Although the borough law was in some directions so severe, the
Cinque Port customs of the fifteenth century show that the ports
possessed a peculiar power of dealing with the plea of self-defence.^
The court, if it saw fit, could acquit a man accused of homicide on
the ground that he acted in self-defence at a time when by the law of
the land nothing less than the King's pardon would suffice to secure
impunity. Under the Statute of Gloucester (1278), c. 9, if a verdict
of misadventure were brought in, it was none the less necessary to
obtain the royal pardon, a rule which entailed imprisonment and
forfeiture at a later time, and kept the whole proceedings under the

^ Ine, 42; D.B.G. ii. 532; Amira, note 6.
Obligationenrecht, i. 248. ^ gQ j^jg^ j^^ ^j^g Flemish borough if

^ Bourges, c. 19. (Giry, Documents.) the plea were advanced by a burgess.

^ Brunner, Forschungen, pp. 494-5, Bauchond, Valencieimes,]^^. 65, 67, 131.

PROCESS AND EXECUTION xli

eye of the justices.^ But at Lydd, in the fifteenth century (p. 53),
there was an acquittal, if ' self-defence ' were found by the ' acquittors,'
that is, the twelve compurgators chosen by the court from the body
of thirty-six named by the appellee. Similarly a trespass done by a
man with the object of saving his life (I. p. 86) was * deemed the less '
if the truth of the excuse were proved by two or three lawful men.

Liability. — The master's liability for the misdeeds of his servant
is a theme but scantily treated in the custumals. On one point,
however, many charters gave privilege. The Cinque Ports (I. pp. 71-2)
protected from the felon's forfeiture an honest man's goods bailed to
the felon before his offence. The Welsh charters ^ (I. p. 221) protected
the master's goods whilst in a servant's keeping from suffering any
seizure on the ground of the servant's offence, whether that seizure
were made in forfeiture or in distraint for trespass. They protected
such goods also from falling subject to any lord's right to * waif,' if
the servant in his flight cast them away. If the master could prove
that the goods were his, he recovered them. Where there was no
such borough custom, the persons exercising the powers of distraint,
reprisal, or forfeiture were not required to enter into the question of
the ownership of the goods distrained or forfeited. It was a matter
of possession, not of ownership. The King came to regard the felon
as * seised ' even of the stolen goods, and the common law was back-
ward in finding remedy for the bailor's loss.

Liability of the House-father. — Though the master in some boroughs
was protected from suffering loss through a fault of his servant, his
liability as a house-father for the offences of apprentices, servants, and
others in his * mund,' was as great in the borough as outside. The
master was to * answer ' for the offences of all in his ' mund ' who
were of years of discretion, for the child who could count twelve, and for
the apprentice. Also he might, if he chose, and in some cases he might
have to, answer for his wife. The compulsion to answer for the
misdeeds of those in his * mund ' did not mean that the house-father
was hanged or imprisoned for the offence of another, but that he
must pay the fine or hand over the offender to justice. At Kilkenny
(I. p. 62) it was ruled that the master need not pay a fine if the
servant were delivered up to chastisement at the Tolsey.

. The personal responsibility of the offending member of the * main-
past,' or house-father's household, was brought home to him, when-
ever he was possessed of a separate property which could be attached

' H.E.L. ii. 465.

^ See also the charters of Guildford, Oxford, Stamford in CaZ. Charter Bolls, i.

Xlii INTRODUCTION

for his offence. At Torksey (I. p. 222) the servant was kept in the
stocks or his wages were attached in his master's hand — attached in
advance of payment— if he had nothing else whereby he could be
attached. These rules were to meet the offences of servants and
children against third parties. The master could flog the servant
* according to law ' (I. p. 63) : that is, in such a way as not to endanger
his life. But in Dublin the custom enabled the apprentice to bring
an action against his master for assault (I. pp. 228-9). If the
master were found guilty, he would lose the services of the apprentice.
If he were not found guilty, the court ordered a ' love-day,' or term
by which master and apprentice must come to a reconciliation. The
penalty on the apprentice for not coming to the love-day — that is, for
refusing compulsory reconciliation — was that he became a bonds-
man. If the apprentice were at the time of the chastisement a
bondsman, no limit was set to the master's right to flog him, save that
he had to find pledges when it was discovered that the bondsman
was in danger of death.

The child under age (I. p. 62) was subject to the parent's chas-
tisement for its offences against the law ; in some cases the parents
had to pay the fines due for the lesser offences on the ground that
they ought to have so chastised the child as to prevent it from tres-
passing. It was a custom in one borough to allow no child under
twelve years of age to be presented for an offence, but at Edinburgh,
in 1515, the child under age was punishable for sharing in theft by
scourging, ear-cutting, and banishment, a far severer rule than
Bracton's (f. 87 a), which called only for pledges for the child appealed
of felony.

Attachment. — The Manchester rule (I. p. 31), which admitted a
private * guerra ' as the proper proceeding in a certain special case,
shows clearly how, and within what limits, external authority displaced
the self-help of the party and his kindred. In 1301 Manchester
allowed a private feud to be carried on where there had been assault
without bloodshed (it was not then a blood feud), only if the assault-
ing party reached the shelter of his home without being attached by
an officer of the law. At Guildford (I. p. 102) ^ Domesday Book
reports that if a man escaped being attached, the King's reeve lost the
plea, but if he was attached (* divadiatus ') the King had the plea. This

^ The meaning of the passage is ob- owe this correction to Dr. Liebermann^

scured by the omission of a now, but the Deutsche Liter aturzeitung, 1905, No.

Leges Henrici, 23. 1, show that a non is 43, p. 2668. See also below, II. p. 47

required before the first divadiatus. I (Wallingford).

PROCESS AND EXECUTION xliii

agrees with the Leges Henrici Primi, 23. 1, which made a plea, that
would otherwise be one of the * minora forisfacta,' into a king's
plea by means of the ' vadiatio,' or attachment, required in the case
of one taken in the act. The lord could take the fines of the ' minora
forisfacta ' (resulting in bloodwite, fightwite, &c.), only supposing that
the royal executive power had not been at once invoked to secure an
attachment ; similarly at Manchester the feud could be carried on if
the plea had not been made the business of the court by means of its
officer's interference. The accused person's * vadium' secured the
court's hold upon the case. The parties could no longer arrange
their dispute privately, but were compelled under penalty to submit
to the judgment of the court.

The attachment, according to some rules (I. p. 104), had to be the
result of a complaint by the party aggrieved ; but to make an attach-
ment by the body, to arrest, it was not always necessary for the
aggrieved party to await the arrival of an officer (I. p. 3). Any
freeman was required to arrest persons who, after being bound over
to keep the peace, again broke it, but in some cases (p. 3) it was
ruled that freemen were not exposed to the risk of arrest by fellow-
freemen who were not officers; only those who were not freemen
might be arrested by a freeman acting unofficially.

Gaging of the Judgment. — The attachment made by the taking of
a gage bound the accused to come before the court ; the gage was
forfeited if he failed to appear. A specially interesting form of the
gage is that which is described in the Preston and Salford custumals
(I. p. 186), showing that there was here what has been called a ' gaging
of the judgment,' similar to that ' Urtheilserfiillungsgelobniss ' which,
according to some historians of Germanic law, constituted the earliest
formal contract. The SaHc law allowed the accused person, who after
judgment could not at once produce the wergeld or the compensation,
to obtain delay by binding himself to satisfy the judgment either by
a gage or by a process of self-pledging based on old ceremonial. If, at
the time fixed for satisfaction, the guilty party still could not satisfy, the
debt increased, and it increased by regular stages with each further
term of delay. At Preston and Salford this gaging was appHed only to
the case of the burgess debtor, who acknowledged his debt to a burgess-
creditor before the reeve ; instead of the forty-day term of the Salic
law, a week's delay was given to satisfy the judgment, as in the rule
of Hloth^re-Eadric, c. 10.^ At Salford and Preston the fines which

^ Heusler, Institutionen, ii. 237, of judgment at Looz, in Belgium. See
cites a survival of the usage for gaging also Amira, ii. 66.

xliv INTRODUCTION

should have gone to increase the debt, according to the old system,
were treated as fines for contumacy and were claimed by the court or
the lord, the * consuetudo defcestabihs,' which was forbidden at Speier
in 1231.^ In England this archaic process was retained in the
twelfth and thirteenth centuries only within a very limited sphere.

Distress. — The ultimate administrative process to induce an
accused person, who escaped a,rrest, to come before the court,
and the initial process in all cases not of sufficient gravity to require
an attachment by the bailiff, was process by way of distress. In all
cases of contumacy the court could order an official distress to be
taken by its own officers, and administrative distress was not re-
strained by any franchise. The house, within which no distress could
be taken so long as the occupant remained in full possession of his
peace, could be entered by order of the court.

The process by way of distress before such order was given
(admitted in the minor pleas as an alternative to the official attach-
ment) was placed in the hands of the party making claim by leave
of an officer of the borough. If a burgess sought to implead a
burgess for debt, he had first to use the triple summons ; if that
failed, by license of the bailiff he could use self-help, and take for
himself a distress on the burgess's goods outside the burgess's house.
The summons and the bailiff's license were necessary only if the
debtor were a burgess of the creditor's qwn borough. From the
foreigner or outsider (he might be a burgess of another borough)
the burgess might take distress without leave of any officer. This
was a rule which runs counter to early Anglo-Saxon law. The laws
of Ine, c. 9, forbade men to seek their own legal rights before they
sought the court, and the rule was repeated again and again ; ^ yet
centuries after, in centres of population the most crowded, and in
some respects the most advanced in the development of legal ideas,
there was tolerated and accepted an executive process which at first
sight appears to represent a return to conditions more primitive and
barbarous than those of the seventh century. In all likelihood,
however, we should be wrong to represent this rule as a lineal
descendant of primitive self-help of the rudest type. Like all the
examples of judicial self-help in the later Middle Ages, it appears
rather as a relaxation of the severe laws against unlicensed self-help
than as an example of self-help which never knew any restriction.

^ Heusler, ii. 243. licencia namiare liceat alium in suo vel

^ Ine, 9 ; Cnut, ii. 19 ; Leges Henrici alterius.'
Primi, 51. 3, ' et nuUi sine judicio vel

PROCESS AND EXECUTION xlv

It was confined to cases in which claim was made for debt owed to-
a burgess by a * foreigner.' Although to all seeming the borough
court and borough officers were without cognisance of the debt
throughout the proceedings, that probably was not really the case.
What is known of the nature of borough contracts (pp. Ixxiii-v) goes
to prove, as we shall hope to show, that in the beginning no burgess
became the creditor of a ' foreigner ' without going through certain
formalities which gave to the borough or market officers a knowledge
of the circumstances of the debt. It was for the debt formally
acknowledged, and for no other,^ that Continental laws were willing^
to admit the unlicensed distraint after unlicensed distraint had been
in general prohibited. Thus, for instance, the laws of Liutprand, c. 15,
allowed a distraint without official leave if the debtor had given gage
or set a pledge in the presence of two or three witnesses ' whose faith
is admitted.' The penalty for distraining ' sine hac manifestatione '
was the return of double the distress. Such a debt was taken to ba
in the nature of a recognisance ; it was what the Germans called
' kundlich redlich,' a matter of record. Like the recognisance proper,
it was undeniable, and execution could be made without preliminary^
legal proceedings. The witnesses of the contract made in the market
between the burgess and the foreigner were, like the witnesses in the-
law of Liutprand, men ' whose faith is admitted,' very possibly official
witnesses.^ The rules which compelled foreigners to trade only
under certain rules of the market, and made all secret bargaining
illicit, lie at the base of this peculiar form of * distress ' in the borough,
which was neither exactly a distress nor exactly a seizure in execution,,
but, as will become clearer when we consider the sale of distress^
(pp. xlviii-lii), partook of the nature of both.

But before considering the precise effect of distress, whether on
the goods of the native or the foreigner, it will be well to point out

^ In the Salford custumal (i. p. Ill) de Poynton claimed a right of distraint

we find the unlicensed distress of the and compulsion (' coactio ') which he had

foreigner restricted to the case in which ' ratione portus,' and it was agreed that

he ' acknowledges ' the debt. This may his Serjeants should distrain the men of

point to the case of formal acknow- the abbot ' si confiteantur ' ; but if they

ledgment before market witnesses, or denied the debt, then the dispute should

it may point to a conflict of jurisdictions be settled 'in feodo et in curia abbatis

such as is shown in the following ex- secundum legem portus/
tract, which may be quoted also as a ^ A chapter of the Etahs. de BoueUf

proof of the peculiarity of the law of c. 22, rules that if dispute arise in a

market distraint. In the Goxhill Car- matter of debt, it is settled by ' witness *

tulary, f. 35, there is an agreement of of two of the twenty-four jurats (gover-

the early thirteenth century on market nors of the town),
rights in Wrangle (Lines.). Alexander

xlvi INTRODUCTION

what we believe to have been the true source of the unHcensed distress.
Under the market^ or borough privilege, the unlicensed self-help
of the native against the foreigner was the outcome of a royal grant,
made to overcome a special difficulty, the difficulty arising out of
commercial credit given between men who dwelt within two several
jurisdictions. The outcome of royal grant also was the burgess's
power to distrain the foreigner's fellow-justiciable. It was a right
exercised under a clause of the borough charter (pp. liii-v).

The explanations given by Edmund Spenser of the nature of the
law of distress in the Irish boroughs tallies exactly with the facts
made known by the English custumals. Sir Henry Maine, who had
been led to believe that our own law of extra-judicial distress contains
traces of continuous development from a time of the most primitive
self-help, rejected Spenser's story as giving only a partial account of
the facts,^ but Spenser laid the accent in the right place when he
noted that borough charters, and borough charters alone, gave leave
to the burgess to distrain the foreigner without the intervention of
public authority. The Irish, who were not privileged to live in
boroughs, retaliated by taking distress of the burgess in similar fashion,
when he came into their clutches^ and the same story comes from
Wales.^ But the distraint which an English burgess might take with
impunity under the license of a borough charter, by the common law
would bring an Irish, Welsh, or English countryman to the gallows.
There was one law for the burgess and another for the non-burgess, as
Spenser says, * this use being permitted and made lawful to some, and
to other some death.' * In those times when the grant was made, the
Irish were not amesnable to law, so as it was not safety for the
townesman to goe to him forth to demaund his debt, nor possible to
draw him into law, so that he had leave to be his own bayliffe to
arrest his said debter's goods, within his owne franchise.' Spenser's
explanation is perfectly accurate : the essential point is that the
burgess had leave to be his own bailiff, and we have only to add that
the facts were in no way peculiar to Ireland, but were characteristic of
the borough laws of Europe.^ The burgess's right was no right to

1 See note above, on the market Commer. p. 100 ; Maurer, iii. 606 sqq. ;
right of Wrangle. Wilda in Zschr. /. deut. BecJit, i. 172

2 Maine, Early History of Institu- sqq. ; Meibom, Pfandrecht, p. 190 sqq. ;
tions, p. 294. Griry, Documents, p. 24. A specially

^ Skeel, Council of the Marches, p. valuable account of the Parisian bur-

13. gesses' right of distress M^ithout license

^ On ' la saisie privee ' of the ' villes is given in a charter of 1134, Ordon-

d'arret,' see Brissaud, pp. 690, 1489 ; nances, i. p. 6. They were authorised

Fertile, vi. 370, note 223 ; Morel, Jurid. to be helpers of each other in such dis-

PROCESS AND EXECUTION xlvii

pillage the foreigner, but, as Spenser says, it was a means to overcome
the difficulty which arose from the fact that the foreigner was the
borough's justiciable only while he was in the borough. His stay
might, nay must, by borough law, be of the briefest, and the burgess's
privilege of triple summons therefore could not be given to the
foreigner. But, though without official sanction, the private distraint
was none the less a definite legal act, subject to strict control. Apart
from the fact that the foreigner could implead the burgess of robbery
before the borough court, the foreigner had this further protection
from a distraint that was a pillage, that the goods taken did not
become the property of the burgess until certain judicial forms had
been gone through. The burgess had secured only a means to the
ultimate satisfaction of his claim, but this he had secured, for the
burghal distraint was not a mere right of detention, as will soon
appear. With regard to the forms to be observed at the moment of
distraint, and the nature of the force that might be exercised, the
custumals are silent. In the event of resistance to distraint, it was
the duty of one burgess to help another, and the foreigner, unless he
were surrounded with foreign friends, who were equally bound to help
him in emergency, could rarely resist successfully. The penalties on
resistance to distress were, perhaps, the same in the case of unofficial
as in that of official distraint.

As a rule it is not suggested (I. pp. 110-3) that there was any
need for proof of the debt to be offered at the time of distraint. If a
burgess distrained a foreigner under fraudulent pretences, this would
first be discovered at a later stage of the proceedings, if the foreigner
chose to bring an action for theft or denied the debt in due form. No
rule is laid down in the custumals on the subject of outrageous distress,
but the common law may have sufficed to guide the burgesses ;
furthermore, the debtor was also protected by the rule which restored
to him the surplus value (p. 1) on the sale of distress.

Before turning to the rules on sale of distress, which were an
important peculiarity of borough law, we may note in conclusion the
beginnings of a tendency to restrict the extra-judicial distraint in
certain directions. Certain persons and seasons were early exempted,
for there were times when strangers of all kinds, even those who owed
debt in the borough, would be admitted under special protection from

traint. * Et si aliquando de rebus quo- incurrent, sed expensam et damnum

rnmlibet ceperint, et illi aliquid se eis que illi propter hoc facient et habebunt

debere non cognoverint, si legitime inde illis cum lege qua vivunt reddent et

convinci a burgensibus non poterunt, emendabunt.'
burgeuses nullum erga nos forisfactum

xlviii INTRODUCTION

distraint — to wit, the fair-times — and these were always a close season
for distress-taking.

Many charters forbade distress to be taken while the market was
open ; sometimes also goods on the way from markets might not be
distrained, except for offences done or contracts made in the market
from which they were being moved. The opportunity given for the
transport of merchandise to market or fair might not be used to wipe
out old scores of all kinds, lest men should be discouraged from
bringing goods.^ Later custumals required that the distrainor should
hasten away at once to the bailiff, after taking the distraint (I. p. 113),
or, if the foreigner had a market-stall, that he should first be summoned
at his stall (I. p. 112), and in that respect be treated like a burgess.
• Sale of Distress. — The borough rules of distress are specially inter-
esting because they make perfectly clear the fact that distress was
regarded as a means of satisfaction, not, like the extra* judicial distress
of the thirteenth-century common law, as a mere right of detention.
The borough distress, whether extra-judicial as against a foreigner, or
taken by leave of the officer of a court as against a burgess, resembled
rather a seizure in execution than a distress for rent arrear. But it
was not, like a seizure in execution, an immediate means of satisfaction.
A year and day had to elapse before sale and satisfaction could follow.
The goods distrained did not, as in the early Germanic laws, become
the property of the distrainor if not redeemed within a certain time.^
There must be sale under due formalities, and an opportunity for the
distrained party to recover the surplus (if any) over the amount of
his debt.^

The rules on the subject of the treatment of the distrained goods
pending the term for sale vary considerably in several particulars.
Some customs allowed the distrainor to keep the distress in his own
charge and to have the use thereof (I. pp. 113, 144). The distrainor
was generally allowed to keep the distress taken for rent arrear
(I. pp. 291, 292), a distress otherwise not differentiated from the
ordinary distress for debt except in so far as it could be taken from a

^ Cf. Huvelin, Marches et Foires, ' A similar course was pursued in

pp. 443, 448. the Sicilian town laws, Briinneck, p.

2 H.E.L. ii. 574, note. Goods 145 ; see also Amira, i. p. 205, on the

attached by a bailiff in the fair- courts Norse law. Maurer, iii. 606 sqq., deals

were delivered to the plaintiff under with sale of distress by the creditor in

pledges to answer to the defendant if he German towns. See also Albrecht,

came in year and day. Gross, Piepowder Gewere, p. 130 ; Wilda in Zsclir. f. deut.

Court {Q. J. of Economics, xx. p. 244), Becht, i. p. 179 sqq. ; Meibom, Pfand-

citing Colchester piepowder pleas of recht, pp. 70-94.
1458-9.

PROCESS AND EXECUTION xlix

burgess without official leave. Some rules gave to the distrainor the
use of the distress if the goods taken were perishable (p. 139). Others
required that the goods be put in official keeping (p. 142). At Dublin
(p. 141) there was a rule requiring apparently that the distress be
kept * in uele main,' in the hands of an impartial person, as a thing
of doubtful ownership.^ There is a general agreement that the
distresses must remain in the franchise, that the debtor may know
where to seek them if he wishes to replevy, and the same rule was
enforced in the Anglo-Saxon laws, for distresses might not be taken
out of the hundred where they had been seized. There is an indica-
tion (I. p. 19) in the Pontefract rule on the burgess's rejplevin of his
distress by his own pledge, that self-pledging was allowed to the
burgess. ' Affidation,' which was probably originally the same thing
as self-pledging, was allowed in the Scottish burghs (I. p. 136) to the
foreigner who asserted that he had already been distrained once that
day and that he had come to replevy his distress ; such affidation
saved him from renewed distress. Distress once taken could not be
released without official sanction (I. p. 115), in order, perhaps, that the
court might not lose the profits of the suit.

The rules for the sale of the voluntarily given gage were like those
for the compulsorily taken distress. The early Bury rule on the sale
of gage (I. p. 143) was that after the creditor had held it for year and
day he could sell it in the presence of * good witnesses.' That the
creditor should keep the gage or distress was probably the earliest
rule. Later rules make it clear that the sale of gage or distress must
be before the court ; and in some cases, after year and day, a procla-
mation on three court days was further necessary. In London in
1305 the appraisers appointed by the court had leave to buy the gages
at the price they had assessed, unless the creditor chose to take them
at that price.^ The custumal of the Scottish burghs (I. p. 145)
required that the best price possible should be got for the distress ^
which was sold after three proclamations in the market-place, on the
fourth market day, by the creditor and the serjeant. If the goods could
not be sold, four sworn appraisers assessed the value, and on that assess-
ment, 'the third penny deducted,' the distress went to the creditor,
the residue in excess of the amount of the debt to the debtor. This

^ H.E.L. ii. 163. Of. Brissaud, p. ^ j,^^^^ Albus, pp. 121, 407.

1493, note on the keeping of the distress ' Sale of poind in Scotland was not

by neighbours. Rigg, Cal. Jetvish Exch. put under the ordering of the sherifif till

Fleas, p. 10, gives an instance of the use the Act of 54 Geo. III. c. 137. Before

of the ' uele main.' See also Steenstrup, that time the creditor could assign

iv. 367-8. people to arrange it.

VOL. U. C

1 INTRODUCTION

may mean only that what was appraised at, say, 3s. went to the creditor
as worth only 2s., but there is some temptation to see in the deduction
of the third penny a payment to the court or to the officer who
superintended the sale, a payment analogous to the Germanic ' fredus '
or peace-fee. By the Lex Salica, c. 50,^ the creditor took two-thirds of
the value of the distress, and a third went to the * Graf ' as ' fredus.'
The Burgundian law sanctioned the taking of a distress worth a third
more than the amount of the debt, and the Danish laws, whence the
Scottish rule may derive, allowed also a third penny in excess,^ so that
the * Graf's ' share was allowed for, falling as * fredus ' on the debtor,
not on the creditor.^

If the sum produced by the sale exceeded the amount of the debt,
the surplus was handed to the debtor when he chose to appear and
claim it (p. 145) ; by some custumals he was required to appear
within a year and day after the sale (p. 146).

The executive character of the borough distress, and the use of
the year and day term for replevin or redemption, support the view
that the peculiarities of borough law are in this matter to be traced to
a royal origin. The year and day was the period of the King's * ban,'
which gave the contumacious person an opportunity to submit himself
to law. By the neglect to redeem his gage, or his distrained goods,
or goods taken in attachment, the offender had shown himself contu-
macious and had incurred some part of the penalty of outlawry. The
injured party received satisfaction in the end from the goods taken^ as he
received satisfaction under the Frankish law of the ninth century from
the lands or goods of the person placed ' in bannum regis.' The
burgess, supported by an officer, could seize the goods he found in the
hurgess- debtor's possession, and eventually recover therefrom; this
was more to his advantage than to make the offender an outlaw.
Without the presence of an officer he could deal similarly with the
foreigner. The burgesses no longer rode out against the contumacious,
to seize all the property, to kill in the event of resistance, no longer
subjected the debtor to horning and outlawry, but proclaimed the sale
of the goods poinded, or waited till there were goods to poind.

If the King had once allowed year and day to elapse before the
:final recovery of his own debt, this term in his case was early reduced,
and an administrative distraint in immediate execution was established
wherever payments of toll, amercement, and the like were due. But
an inclination to admit some term of delay lingered on. The Leges

^ Brunner, ii. p. 454. s Meibom, Pfandrecht, p. 75.

2 lb. ii. p. 450, note 29.

PROCESS AND EXECUTION li

Henrici Primi, 51. 6, forbade the sheriff to sell * nam ' on the same day
that he had taken it, and subsequently the term of delay for payment
of royal debts was fixed at different periods by statute, sometimes at
forty, sometimes at fifteen, and sometimes at eight days.^ This
shortening of the term of replevin was paralleled in the history of
the replevin of land, w^hen sequestrated for default under the writ of
right. The term of the * missio in bannum,' once a year and day,
was reduced in this case to fifteen days.^ Whether the right to sell
distresses after delay was restricted to the burgesses of the twelfth
century in England we know not. In France sale seems to have been
allowed after short terms varying, according to the class of the person
distraining, or perhaps distrained, from seven to forty days, but in
France as in England there was a tendency to convert the private
distress into a mere right of detention,^ and the official distress into a
seizure in execution with immediate sale.

In England the form of private distress of whose history most is
known is the distress taken by the landlord for rent arrear. Until
the statute of 2 William and Mary, c. 5, and its successors gave the
power of sale, the landlord had a mere right of detention, and had to
restore the distress whenever satisfaction was offered. It is very
possible that, when the manorial courts were in full vigour, the land-
lord's distress for rent, as for other dues, if taken by a judgment of
the manorial court, would result in a sale ; but when the manorial
lords ceased to look to their court for a judgment before they dis-
trained for rent, and distrained extra-judicially, their distraint ceased
to have an official character, and lost all trace of connection with the
seizure in execution.

The sale of distress for rent arrear was, in the boroughs, not as a
rule difl'erentiated from the sale of distress for other forms of debt,
though sometimes a shorter term was fixed for sale of distress for
rent (I. p. 147). The borough customs did not all fix the year and
day term, but show a considerable variety of terms for the detention
of all kinds of distresses,^ and gave in some cases one term for replevin
to the burgess, another to the countryman. It would seem that in
the end the borough rules relating to the sale of distress were either

^ Bro. Abr. Distress, 71. Stat, de days at Grenade, c. 30 (OnZonwawct's, iv.

districtione Scaccarii, 51 H. III. c. 4. 22) ; 15 days at Antiocb, c. 15 ; 7 days

- H.E.L. ii. 591, note. at Lille (Roisin, p. 89) ; 14 at Freiburg-

•■' Brissaud, pp. 1485-6. im-Breisgau, c. 54, 55. At Ipswich, c.

* We find 40, 15, or 7 days allowed 36, no term for replevin was granted if

in the English custumals and an equal the creditor were a ' foreigner,' but 40

\ariety of terms abroad ; the forty-day days were given if he were a native,
term was given at Bergerac, c. 27 ; 30

C 2

lii INTRODUCTION

crushed out as unreasonable, or ceased to be valued as a means of
exacting debts, inasmuch as they involved delay. When the mediaeval
difficulty in securing the presence of the defendant in court had passed
away and prolonged delays of judgment were no longer necessary, the
ordinary royal remedy under ?i fieri facias, which led to an immediate
sale after judgment, was preferred.

This right to take distress must have worked as more than
a speedy executive process ; it must have laid the foundations of a
system important in the history of commercial credit. The debtor
who had the ready money wherewith to pay his debts doubtless did
so before distress rather than after. But the custom shows that the
foreign debtor was regarded as likely to come with goods for trading
purposes, and without money : his goods are in many rules described
as live stock (I. pp. 88, 135, 138, 141). A system seems here to be
described in which the burgesses were lenders to countrymen, on the
security of the given gage, or the security of a distress which would
be taken whenever the debtor (or a fellow-member of his court) came
to market. Just as the avenger of the feud accepted in satisfaction
cattle, arms, or ornaments, at a price settled by the court, so did the
injured creditor : thus the system of distress, followed by delay and
final appraisement, supplied the lack of ready money.

Reprisal. — The full force of the procedure by distress is not realised
if we think of it only as a power exercisable against an individual to
bring that individual to answer claims made against him for wrong
done by him. There was, as has already been noted, a further right
to distrain persons not known to be the pledges of the burgess's debtor,
but known to be in some sense of his * fellowship.' The tie might be
no closer than that both were justiciables of the same court. ^ It is
possible to trace far back a distress by way of reprisal against
persons connected with the accused by kinship, or by the bonds which
replaced kinship. Just as the whole kin was involved in the feud
arising out of an act of violence, and involved in the payment of a
composition to bring the feud to an end, so the whole kin was respon-
sible for the debts of a kinsman.

From early times the law-makers sought to limit the responsi-
bility of the kin : for instance, the Lombard law of King Eothari,
c. 247, forbade anyone to be distrained for another's debt * excepto
illo qui gafand esse invenitur, id est coheres, parens proximior qui illi
ad hereditatem . . . venturus est.' But though restricted, and ulti-

^ Cf. Green, Town Life, i. 167 ; Maitland, Select Pleas of Manorial Courts, ii. 134.

PROCESS AND EXECUTION liii

mately altogether forbidden, in many codes of Germanic law/ as it
had been in Justinian's law (Cod. 12, 60, 4, and Nov. 52, 1), liberty
to distrain one who was neither the debtor nor a pledge of the debtor,
but only one of his community, was given or claimed in many privi-
leged jurisdictions. One of the laws of the Dunssete, 2 § 2,^ the laws
of a half English and half Welsh colony (c. 935), authorised the taking
of distress from any countryman of the debtor if justice could not be
otherwise obtained, and this seems to show that this law was already
an exception to the general rule. The law^s of the Dunsaete, 3, go on
to say that if a man had his cattle distrained for the offence of another
man [of his race],^ it was the duty of the man who owed the debt to
bring the distress home or pay the owner for it. It was not till the
Statute of Westminster I., c. 23, that there was a general prohibition
of such proceedings : in no city, borough, town, market, or fair might
* any foreign person (which is of this realm) ' be distrained for any debt
wherefor he was not debtor or pledge. That such distress was tortious
in the days before the statute, except where it could be claimed as
custom, is probable, for in London and other boroughs, leave to
take distraint by way of reprisal was accorded by early charters,
a leave which would have been unnecessary if it were the right of
all men.

Fleta, ii. c. 63, in discussing the distress by way of reprisai, speaks
of the foreigner who suffered the distress as of * affinity ' with the
debtor * as of one society or city.' The fellowship was not required
to be a gild fellowship, for the object was to bring pressure to bear
upon the court of the debtor through one of his fellow-justiciables.
The sufferer of distraint was intended to make known his distraint in
his own court and require his court to send the debtor to pay his debt
and release the distress. The London charter, of which we have not
the original text, allows distress on a member of the debtor's * county,'
and the Haverford rule (p. 121) suggests that * county,' not * com-
munity,' may perhaps be the right reading ; but the Colchester charter,
resembling the London charter of Henry I. in several particulars,
reads * communitate.'

The Exeter description of distraint in reprisal (I. pp. 117-8) is
specially valuable, and if, as seems probable, the ' foreigner ' here was
an Englishman, the custumal should be dated as older than the
statute of 1275. If a man owed a debt to a burgess, it was lawful to

^ See Del Vecchio and Casanova, 377.
Bapprcsaglie, p. 61. ^ Dr. Liebermann supplies [aus

^ Liebermann, Gesetze der A.-S. p. demselben Stamme] in his translation.

liv INTRODUCTION

distrain others from his * terre ' twice, and then to keep the goods
as irreplevisable, * if these others are foreigners and hold of one lord,
and are dwelling in one and the same country.'

The fifteenth-century custumal of Hereford (I. p. 119) shows
that * damage ' in foreign parts, and especially in Wales, might fall on
citizens for the debts and trespasses of their fellows, and while
measures were arranged to compel the debtor to refund losses incurred
on his account by his fellow-burgesses, no plan was made for punishing
the foreigner who inflicted the damage, though the injury was done
in defiance of the statute law, if this custom comes from after 1275.^

We may thus see this procedure in reprisal long maintained in
the boroughs side by side with the procedure which enabled the
citizens of one borough to sue those of another borough collectively.
Just as the feud and private vengeance lingered on side by side with
more civilised processes, so here, while a wrong remained unremedied,
every * affinis ' of one community was liable to the feud of an * affinis '
of another community. Beaumanoir, writing of Frenchmen in the
thirteenth century, declared the feud to be the privilege of gentlemen,
and unfit for burgesses. The burgesses carried on their feuds by means
of * distress.' It was easy to avenge oneself upon an individual who
was a ' foreigner ' among ' natives,' and less costly than the formal
process taken collectively by one community against another. But in
the long run the ruder process was not advantageous to the larger
interests of trade, and accordingly borough charters began to be
granted which forbade the distraint in reprisal.^ These were distri-
buted so widely that the Statute of Westminster merely enforced what
had already become the rule of all the greater boroughs, and deprived
other jurisdictions of a right probably assumed in imitation of the bad
old borough privilege.

Already in Henry II. 's modification of the London charter of
Henry L, there was a reduction of the Londoner's power to take dis-
tress in reprisal from the foreigner— it might no longer be taken
without official sanction :

^ "Whether the passage contains a Marches, p. 443. Thierry, Hist, du

description of the law in 1486, or a de- Tiers Etat, Documents inedits, iv. 40.

scription true only of an earlier time, is Many charters granted by the Scottish

2 on?' k • kings to the monasteries contained this

This began in England at the close exemption as a privilege, reprisal in the

of the twelfth century. A similar clause boroughs being excepted in some cases,

is found in a Beauvais custumal, c. 15 The instances are brought together in

(1144), ed. Labande. For other French Lawrie's Earhj Scottish Charters, pp.

charters granting this exemption from 316-7.
distraint in reprisal, see Huvelin,

PROCESS AND EXECUTION Iv

Henby I. Heney II.

Et omnes debitores qui civibus Et de omnibus debitis suis que

debita debent eis reddant vel in accommodata fuerint apud London',
London' se disrationent quod non et de vadimoniis ibidem factis,
debent. placita [sint] apud London'.

Quod si reddere noluerint neque
ad disrationandum venire, tunc cives,
quibus debita sua debent, capiant
intra civitatem namia sua, vel de
communitate (?) in qua manet qui
debitum debet.

Et si quis thelonium vel consue- Et si quis in tota Anglia the-

tudinem a civibus London' ceperit, Ionium et consuetudinem ab homi-
cives London' capiant de burgo vel nibus London' ceperit, postquam
de villa ubi thelonium vel consue- ipse a recto defecerit, vicecomes
tudo capta fuit, quantum homo London' namium inde apud London*
London' pro thelonio dedit et proinde capiat,
de damno ceperit.

The distress in reprisal under Henry IL's charter had to be taken
by the sheriff, and could no longer be taken by the citizen ; it could
only be taken in London, not outside London as formerly, and the
reprisal was restricted to distresses taken for toll or custom wrong-
fully exacted from the toll-free men of London. In this form (authority
sometimes being given to the reeve, or to the sheriff of the county and
reeve of the borough) the liberty passed to the many towns whose
charters were modelled on that of London. In 1191 the Londoners
put the imvilege to use, when resisting the toll taken at Bury St.
Edmund's. According to Jocelin of Brakelond's account (p. 56) they
threatened either to destroy the abbot's stone houses (in London) or
to take ' contranamium in centuplum.' Keprisal and house destruc-
tion (see p. xxxv) here appear as alternative executive measures.

The Westminster Statute had left it still open to creditors to dis-
train * foreigners ' who were not of this realm for the debts of their
fellows, and this was first stopped by statute 27 Ed. III. st. 2, c. 17.
'-this statute left untouched the privilege of certain ancient boroughs ^
which allowed the use of a more formal reprisal than the old extra-
judicial distress, a reprisal resembling the * droit de marque,' which
was taken only after the borough court had frequently sought redress
from the court of the debtor by a ' common letter.' ^

^ Cf. Cal. London Letter Boohs, G, prisal. Bot. Pari. ii. 352, quoted by

p. 15. In Calais, in 1376, Englishmen Cunningham, Industry and Commerce

from the counties bordering on Wales (1905), p. 282.
complained of suffering distraint in re- ^ Cf. Cunningham, ibid. p. 302.

Ivi INTRODUCTION

Just as the right of reprisal and letters of ' marque ' remain in
international law to strengthen the weakness of the executive, so in
mercantile law the ' withernam ' enabled one town to force another to
render justice, so far as pressure upon individual members of that
tovrn, who happened to be at the distrainor's mercy, could influence the
whole group of which the sufferer of distraint was a member. A right
essentially royal in character, since it involved international relations,
had become burghal in the Cinque Ports, London, and a few other
ancient boroughs.^ The * withernam ' privilege seems never to have
been exercised after the seventeenth century.^

Willing as the burgesses were to enter upon a course of reprisal
on ' foreigners ' for wrongs done to ' natives,' there were many attempts
to prevent burgesses from exposing their fellow-burgesses to reprisal,
or, if the mischief were already done, to force the guilty party to
redeem the 'nam.' The laws of the Dunsaete, as already noticed
(p. liii), ordered this redemption, and the borough custumals required
that the court should order replevin or redemption to be made by
the principal within a certain time, under a heavy penalty. They
required payment for damages to go to the sufferer of distraint, and
ordered the contumacious principal debtor to be ejected from the
community ; his bouse was closed and he was treated as one unpro-
tected by the borough peace. The Hereford custom (I. p. 119) required
that his land or goods be sold or his body imprisoned, or sent as a
hostage to the place where distress was taken. But if justice had been
refused at Hereford, and the reprisal arose from this reason, then
oach burgess must take his chance, and could not recover from the
principal. It is unfortunate that the only form in which we have the
Hereford custumal makes it difficult to date this passage with any
kind of precision. It seems to represent a rule which may have
already been a thing of the past when this passage was written in the
time of Hugh Suarde, burgess of Denbigh.^

To prevent the dangers of reprisal, some communities preferred to

^ A close paraJlel to the Cinque Ports (De Laine), but not in Bohun's Privi-

withernam after the sending of common legia in the eighteenth century. Lyon

letters is found at Aries, c. 18, 1198- {Dover, i. 240) says that the last men-

1202 (ed. Giraud). The use of reprisal tion at the Cinque Ports is in 1669. In

in the Italian cities is fully discussed in 1575 the Lieutenant of the Tower ar-

DelVecchio and Casanova, jRop^resa^Zie rested London citizens in ' withernam '

(1894). The sending of these common because the Aldermen had arrested a

letters before proceeding to reprisal was minister of the Tower ; this arrest in

the Yarmouth usage in 27 Ed. I. Blome- reprisal was declared illegal, Loseley

field, Norfolk, xi. 344. MSS. p. 498. See also Bememhrancia,

2 The London ' withernam ' appears pp. 439, 446.
in 1681, the Present State of London ^ See Vol. I. p. xxxii.

PROCESS AND EXECUTION Ivii

make the debt that was owed to a foreigner a charge on the whole
community ^ rather than that it should go unpaid (I. p. 126 sq.). The
community claimed to be refunded by the debtor in double the
amount, and, if need were,^ enforced the claim by taking the lands of
the debtor. If the burgess denied the debt, then the borough court
determined what proof he must bring.

A curious Northampton rule of the thirteenth century (I. p. 209)
forbade a burgess to give credit, at fair-time or otherwise, to a knight
or any other, who owed money already to a burgess. This probably
applied only to loans to 'foreigners.' The punishment for so doing
was that the second creditor had to pay the first creditor's debt and a
heavy fine besides ; but the rule held only if the original creditor could
prove by witness that he warned the second creditor. A law of this
kind serves to show how much difficulty the borough court found in
issuing process for the recovery of foreign debt, without incurring the
risks of reprisal. The giving of credit, which might involve the whole
community in dangers arising from the effort to recover, was a thing
to be discouraged.^

Foreign Attachment, — The London creditor's right to ' attach ' debts
which were due to his debtor, and to use these as part of the debtor's
assets, resembles the ancient royal right, which was not the right of
ordinary men, to distrain the debtor of the King's debtor. Abroad a
tenant might be distrained by his lord's creditor to the extent of a
year's rent,* but we do not meet this rule in England, where there
was, for the unprivileged subject, so far as we know, no right like that
which the ' Dialogus de Scaccario,' II. xv., ascribes to the King, a right
to treat sums which were due from others to his debtor as part of that
debtor's assets. The right resembles the French * saisie- arret,' by
which under the decree of a court a creditor could prevent his debtor
from receiving payment from others to the prejudice of the creditor's
rights.^ It has parallels also in Scottish and American law. In
London, and the towns that followed the London custom, a right which

^ That communal compensation for ^ The Hereford court (I. p. 209) con-
injury was not unknown appears from sidered itself authorised to deal as it
the curious Godmanchester rule (1324). thought fit with habitual borrowers and
II. p. 40, which orders each to bear his with habitual lenders,
own burden in the loss of animals by ^ Meibom, p. 62; Wilda in Zschr.
theft. The poorer Londoners com- /. deut. B. i. 226. In London the
plained in 1275 that they were tallaged tenants' rent could be attached under
to pay the losses suffered by certain the custom ; the rents were paid into
merchants probably under the system of the court. Pleas and Mem. Roll. A. 9,
reprisal. Hundred Bolls, i. p. 403. m. 4 dors.

^ Cf. with the English cases, Bal- ^ Brissaud, p. 1492.
asque, Bayonne, i. 333, cap. 104, §l-§3.

Iviii INTRODUCTION

had been exercised by the King's officers on behalf of the King's debt
passed on, it would seem, to the burgesses as a process for the recovery
of private debt.^ The attachment compelled the appearance of the
debtor's debtor, and his obedience to the court. If he could disprove
his liability within year and day, the amount taken was returned.

Restrictions on Distress. — The rules of the custumals (I. pp. 129-
131) on the subject of many details of the process of distress, when
directed against a burgess, resemble those of the common law : for
instance, on the subject of hours, places, and the classes of goods
exempt. The burgesses were reluctant to admit the taking of distraint
within the house, except under circumstances of an aggravated kind,
which robbed the house of its sacred peace, and rendered the occupant,
temporarily at least, unworthy of full privilege. All the possibilities
of outdoor distress had to be exhausted before distress was taken
within doors.. Within doors distraint had to be made in the hall first,
and never in the private chamber if there were goods in the hall.
The Serjeant who entered the private chamber might be ' taken and
well beaten,' and he would have no action for assault, according to the
Dublin rule (I. p. 104). For royal debt, and for debt to the commu-
nity, distraint might be made at night, as also in all cases of distraint
in execution after judgment (p. 107).

Distraint by Bailed Goods. — As distress was the chief method of
redress in all cases of neglect of summons, tlie burgesses had the
same interest as the country people in maintaining the right to dis-
train on bailed goods, a distraint allowable under common law. But
in commercial communities there were interests which might be strong
enough to secure protection from this form of distress, and accordingly
we find that for one reason or another certain exceptions w^ere made.
Thus in the Scottish burghs (I. p. 112) there was a rule in restraint
of this form of distress which may have been due either to the fear
of distress in reprisal or the desire to encourage the bringing of goods
to market. The Scottish burgess might distrain a foreigner, who
hired a stall in the market and was but partly enfranchised, only by
goods that were his own. The Northampton and the Pontefract rules
(I. pp. 147-8) protect the goods which one burgess has bailed to
another burgess, not by forbidding their distraint, but by ordering the
bailee to replevy such goods. If he failed to do so, the reeve was to
replevy for the injured bailor, and the bailee was either to be attached

^ Much has been written on ihe later Foreign Attachment (1861) ; cf. Mayor
history of this custom. Cf. Brandon, of London v. Cox, Law Be^. 2 House of
Treatise upon the Customary Law of Lords, 239 (1867).

PROCESS AND EXECUTION lix

by his body (as at Northampton), or was to be distrained by his own
goods (as at Pontefract). If the burgess had bailed goods to a
foreigner, the burgess would have to take the risk, but between
burgesses another rule prevailed. Again, another system was estab-
lished in some towns to meet the case of the trader who had bailed
goods to poor craftsmen, in order that work might be done upon them.
The borough court showed unwillingness to let the capitalist's goods
be taken for the debts of the poor craftsman. At London in the
twelfth, and at Ipswich in the thirteenth century, certain sorts of
goods might not be taken as distress or accepted as gage, where there
was a reasonable certainty that these goods were bailed to the crafts-
man in order that he might work upon them. The London burgess
(I. p. 148) might distrain by some sorts of bailed goods for rent arrear,
but not by goods lying in fullers', dyers', or dubbers' (cloth-dressers')
houses awaiting the processes of fulling, dyeing, and dubbing.
These, it might be taken as certain, were not the property of the
workmen, and must not be taken for the workmen's debts. The
principle, to which this rule was an exception, that bailed goods as
such are not exempt from distress, is expressed in a French phrase,
' E cil le demande la u il le comanda,' which may represent the well-
known proverb * Wo du deinen Glauben gelassen hast, musst du ihn
suchen,' agreeing with the doctrine ' Hand muss Hand wahren,'
* Mobilia non habent sequelam.' If a bailee had been distrained by
bailed goods, the bailor could sue only the bailee. The opposite rule
is expressed in the proverb * La ou quelqu'un trouve son bien, il le
reclame.'

Bailed goods in a felon's keeping were safe from forfeiture in some
royal boroughs (I. p. 71), and, as noted above (p. xli), some charters
protected a master's goods from forfeiture for the misdeeds of a
servant in whose keeping they were found. In a Kilkenny ordinance
of 1504 (I. p. 150) official distraint by bailed goods was forbidden.

Distraint hy the Tenement. — The boroughs found in the sale of
distress after year and day a ready means of execution as far as goods
were concerned, when dealing with a contumacious person who
refused to come to court. In the same quarter we might expect to
meet a sale of land in execution for debt, setting the pattern followed
by the Statute of Acton Burnell (1283), which first gave the creditor
power to treat the debtor's devisable burgage in the same way as
movable property.

The Scottish burghs knew an execution against land for debt, as
appears from the Leges Quatuor Burgorum (I. p. 193), about the

Ix INTRODUCTION

middle of the thirteenth century, and perhaps from earlier times. Of
the English boroughs we know that, when roused to extreme measures,
they could use a very vigorous process in execution, expulsion from
the franchise, destruction of the house. Could they resort to no more
vehement measure against the debtor than * distraint by the tenement,'
the only measure sanctioned by the common law before the Edwardian
statutes ? In favour of the possibility of an execution we have but
one English text to offer, and it is a text of very uncertain date.

That passage in the fifteenth-century Hereford custumal (I. p. 119)
to which we have already referred, as containing signs that it came
originally from an earlier time (pp. liv, Ivi), reports that there, in
times past, a sale of the tenement had been ordered by the court
when the debt was due to a foreigner : that is to say, when the debt
was a source of danger to the whole community as a possible cause
of reprisal. The statement, as we have noticed above, seems to
refer to a time before the first Statute of Westminster (1275) which
abolished this form of distraint among Englishmen. That the ar-
rangement was made specially to suit the case of the foreign creditor
is probably a significant point. The foreigner could not render effec-
tive in Hereford that occupation in distraint which in other cases
was admitted as a means to work off debt. The general silence of
the early customs on the subject of sale of the tenement forbids us,
however, to suppose that this course was usual in the boroughs of
England. They seem to have followed the example of the common
law in treating the debtor's land as distrainable but not saleable
in the days before 1283 ; an examination of the borough court rolls
might tell more of this matter.

The forces of feudalism seem to have removed from early English
common law all tendency to apply the ' missio in bannum regis ' to the
recovery of the debt by a sale of the debtor's tenement. The Frankish
creditor by the close of the eighth century was making use of this
weapon. The debtor, who contumaciously withheld payment from the
King, exposed his land to sequestration and ultimate confiscation. Other
creditors were privileged to use the royal process, and by grace of the
fisc were allowed to recover their debts from the proceeds of the land
which was confiscated.^ If there were any process analogous to this
Frankish process, used in England, against the King's debtor, it has
not yet come to light. The Leges Henrici Primi, 52. 1, observe that
for contumacy there was a ' forisfactura regis,' which might involve
the land, but even so that brings us only one stage of the way,
^ Brunner, D.B.G. ii. 458 sqq.

PROCESS AND EXECUTION Ixi

dealing rather with those who will not than with those who cannot
obey. Certain passages in the ' Dialogus de Scaccario ' (II. xiii.), though
limited in their scope solely to the question of the sheriff's account to
the Exchequer, suggest that the sheriff was not authorised or required
to take measures against the debtor's land, except in the case of the
burgess, who was to be distrained by his tenement if chattels could
not be found. The lands were to be confiscated and let out to others,
that thus the King might be paid {' infiscet et penes alios collocet '). If,
owing to fellow-feeling in the borough, no one could be found to take
the house, the sheriff was to till the ground and bar up the house.
There was no sale/ but a royal detention which lasted till the offender
satisfied the debt. On satisfaction ' those things which were his ' (the
debtor's) were restored. Such power as the King had against his
burgess debtors, the burgesses used against each other. The law that
no man may distrain in the fee of another ^ rendered even this limited
right an important one ; the burgess creditor who distrained by the
tenement was not necessarily the landlord.^ The borough court could
adrait the burgess to a process something like that of the royal
* extent,' which, while giving to the creditor only the annual proceeds
of the land, might, and was sometimes intended to, reduce the debtor
to beggary.^ In the borough it is made abundantly clear that the
burgage was a ' gage ' for the performance of a burgess's duties, and
that in the event of non-performance the borough court could lay
hands upon it. The burgess was dispensed from giving pledges
because his tenement was his gage (I. pp. 53, 154). He was made
justiciable by his tenement (I. p. 98, II. p. 40 &c.). At Montgomery
(1486, I. p. 106) it is observed that ' their tenements will answer for
the sums in which they are condemned, and for all executions, arrear-
ages and amercements whatsoever.' At Grimsby in 1259 (I. p. 126),
if a burgess's debt had been paid from the common purse (to release
the community from risk of distraint in reprisal), the tenement was
taken into the King's hand (the bailiff of the borough acting for the
King), and held until 'there is taken therefrom up to the value of
double the said debt,' and then the tenement was to be restored to the
debtor. In such a case the land, held as it were in gage, * amortized *
the debt in the manner of the * vifgage.' ^

^ The Oxford edition (p. 230) suggests it had returned to the owner's fee (I.

that there was a sale, but the text does p. 88).
not warrant this conclusion. ^ The extent was ordered to be made

'^ Leges Henrici, 51, 3; Statute of 'ita quod compellatur mendicare ' in

Marlborough, c. 15. the Close Boll of 1231, p. 4.

* The Exeter burgess could take in ^ This liquidation out of the issues

distraint the beast damage feasant after was contemplated by the Statute of

Ixii INTRODUCTION

In the Scottish burghs, as in some Continental towns, ^ there was
no hesitation in selling the burgage as the ultimate distress for debt
(I. p. 193). The debtor's land could be sold by the creditor after year
and day had been allowed for redemption by the debtor or by his
kindred. The creditor sold ' as best he might,' and from the price he
deducted his due, giving the debtor the surplus. No reservation was
made to provide sustenance for the debtor or his family, as was
eventually to be the rule in England.

Bent Arrear. — The peculiar ceremonies which, in some ancient
boroughs, attached to the proceedings for the landlord's recovery of
the land when rent was in arrear, lend support to the idea that the
executive authority exercised by the burgesses was royal authority.
The plan followed in some boroughs of ancient origin is in close
analogy with that royal sequestration, w-ith a period for replevin,
familiar enough in connection with the enforcement of the writ of right
and writs of entry. In the recovery of land for rent arrear there are
in the burgh al proceedings traces of the exercise of the royal foreban
or sequestration for a term of year and day, pending satisfaction,
which seems to be also the source whence were derived the borough
rules on the sale of gage and distress. For this reason we may be
allowed to detach the discussion of this subject from the general
theme of land tenure and seignorial relations and to introduce it in
connection with the borough processes, administrative and executive.
The process which enabled the landlord to obtain the recovery of the
land by means of what was known as the ' stakement ' (I. pp. 301-2,
306-11) bears a striking resemblance to the Frankish ' Fronung,'
which, from a ravage once sacrificial (* fron'=holy), is believed to
have been reduced to a royal sequestration.^ The mark of the
' Fronung,' when ravage no longer took place, was a bunch of straw
tied to a stake (* wifa '), and it is very probable that the stake which
in the Cinque Ports was used to mark the tenement whose seisin was
in question was not without a bunch of straw at the top, such as

Merchants, 1285 ; so also at Lille coiisiderecl in which it was not equal in

(Roisin, p. 48), and at Bayonne (circ. value to the debt. Giry, c. 39.
1275) (Balasque, p. 331) ; if there were ^ Numerous examples are cited from

no land to distrain on, the debtor was Continental sources in Mitchell, Laiu

to be expelled irom Bayonne. At Rouen MercJiant, p. 119.

the mayor gave the debtor's house to the - Brunner, D.B.G. ii. 457-60. That

creditor, and the creditor took it in dis- the King should perform the sacred

charge of the debt ; if later on the debtor rites of the ' Fronung ' is in accordance

had chattels, the mayor could cause with that theory of the origin of his func-

them to be seized and paid to the ere- tions which Dr. J. G. Frazer has ad-

clitor. It is not clear whether the house vanced in his Early History of tie

is held as a gage or whether a case is Kingship.

PROCESS AND EXECUTION Ixiii

workmen still fasten to a rod in the middle of the street to signify
that the road is being mended. The * lignum in altum porrectum,'
the * wifa,' the French ' brandon,' marked the fact that the land lay-
under a kind of arrest, a ' saisie,' a ban.^ During year and day, the
term of the ' foreban,' opportunity was given for the breaker of the
peace to return to the peace, by presenting himself in court to answer
for his debt or other offence.

The Winchester rule (I. p. 301-2) makes it clear that the stake
marks a royal sequestration, lasting for year and day if the tenant
during that term makes no satisfaction. Here the stake was set up
by order of the court, and not until the landlord had despoiled his own
tenement by taking the doors and windows in distraint. In the
Scottish burghs and at Exeter the landlord was called upon to make
what may be regarded as a symbolic ravage ; the removal of doors
and windows, as the Scottish custumal observes, injured the landlord's
property, and accordingly it was decided that it would suffice if at set
terms he took a stone or sod, which testified to the number of times
he had vainly made his claim.

Before discussing the numerous varieties of process for the land-
lord's recovery of the land, if rent were in arrear, it will be well to
consider for a moment the position of the landlord under the common
law before 1278, when the writ ' Cessavit per biennium ' (Statute of
Gloucester, c. 4) gave him recovery under certain conditions. Out-
side the boroughs the landlords had lost powers which they once
enjoyed. The withholding of rent and service was probably at one
time a cause of forfeiture, for it was a breach of the sacred feudal
obligations ; ^ but for sanction of this forfeiture the feudal lords had
relied upon their manor courts, not upon the King's court. The
time came when the law of the King's courts was so constructed as
to leave the lords very helpless in their own courts ; ^ and on the
other hand, if they went to the King's court for a remedy they found
only one which was cumbrous and tedious, a writ for services with-
held ; this could only be used when the tenant denied that the service
claimed was due from the tenement. If the tenant merely made
default, the landlord had no remedy in the King's court, though of
course he might distrain. In 1278 the Statute of Gloucester, c. 4,
gave the much-needed reform, in the shape of a writ known as
* Cessavit per biennium,' giving recovery in demesne after rent had

^ Blackstone, iii. 280, notes that it dant's grounds in token of summons in
was sometimes customary in liis day to a real action. ^ H.E.L. ii. 125.

erect a white stick or wand on the defen- ^ H.E.L. i. 335 ; ii. 125.

Ixiv INTRODUCTION

been in arrear for two years. Professor Maitland says of this innova-
tion ' it is one of the very few English actions which we can trace
directly to a foreign model,' ^ and, in agreement with Blackstone,^
he traces it through the Decretals back to the law of Justinian
for the emphyteutic tenures. There are, however, two features
in the process of the * cessavit ' for which the Eoman law offers no
analogy.

In the form in which the * cessavit ' action first appears (Glouc.
c. 4), stress is laid on the point that the land must have lain * fresh '
for two years, and the absence of distrainable goods is required also
in the amended law, Westm. II. c. 21. The law of Justinian (Cod. 4,
66, 2) and the canon law (c. 4, X. 3, 18) made no such requirement ;
it sufficed that the rent was in arrear for the necessary number of
terms. Again, the Eoman law gave ejectment on mere lapse of time ;
no legal process was necessary : but under the statute judgment was
necessary and opportunity was given to the tenant to satisfy at any
moment up to the judgment. Now the features in which the Eoman
law and the English statute disagree are those in which the English
statute agrees with certain borough customs, notably those of Win-
chester and the Cinque Ports, which bear traces of antiquity. Here it
was necessary for the lands to lie ' fresh ' for a year before the stake
was erected. From the time of the erection of the stake to the re-
covery by judgment of the borough court another year was to run,
and up to the time of the judgment the defaulting tenant could recover
by paying his arrears. Not till the end of the first year, when harvest
was over and gone, and the tenant had brought nothing distrainable
on to the ground, had he shown a contumacy which required royal
intervention. The second year was the year of sequestration, the
year of the * missio in bannum,' which gave the tenant the last oppor-
tunity to make his peace.-^ A remedy which the landlords had enjoyed
in some royal boroughs supplied very possibly the pattern for the
remedy given by the ' cessavit ' to all landlords. The ' cessavit ' was
not under the Statute of Gloucester a means to recover the land in
demesne for every species of cesser, but only for cesser when the rent
was worth a quarter of the value of the land, in fact for the recovery
of rack-rents such as were paid in the towns. The 'Cessavit per
biennium ' would not suit the case of the nominal rent or the small
rent of the ordinary agricultural holding, which consisted of strips in

H.E.L. i. 334. 3 Blackstone, iii. 232.

At Dover (I. p. 808) the date of this staking was entered in a register.

PROCESS AND EXECUTION Ixv

the open fields lying * fresh ' for a period of even six years under the
rules of agriculture in some parts of the country.^

In conclusion we may notice that sometimes in the boroughs the
proceedings were prolonged over a period of three years, the * stake-
ment ' being first made when rent had been in arrear for two years.
This was so at Komney (I. p. 311), where the form of the writ of
stakement is given in a fifteenth-century MS. of the custumal. It
runs :

J. P. ballivus ville de Romene et Jurati dicte villa subballivo ejusdem
ville salutem. A. B. de C. petiit unam placeam terra cum partinenciis sibi
astakyari, jacentem in tali loco, eo quod predicta placea terra ab ipso tenta
est per servicium tot denariorum redditus et firma, et ad aum raverti dabat,
juxta consuetudinem, ao quod predicta placea terra cum partinenciis a
predicto radditu jam cessavit per biennium ut dicit. Quara tibi precipimus
quod sipredictus A. de B. fecarit ta sacurum da clamio suo prosequando, tunc
predictam placeam terre cum suis partinenciis capias in manus domini per
astakiamentum, et da ao quod faceris in pramissis nobis cartifices ad
proximum hundradum tenendum apud Romene post datum prasencium.
Datum ut supra sub sigillo, die at anno etc.

The well-known * gavelet ' action of London may be regarded ^ as
another form of the * stakement.' A variation on the London pro-
cedure appears at Exeter under the name of * gavelack,' and also at
Ipswich, without any old English name. In London, Exeter, and
Ipswich, the principal difference from the * stakement ' was that the
demandant was put in occupation of the tenement during the period
for replevin or satisfaction which was allowed to the tenant. This
finds its counterpart in the law of the Scottish burghs (I. p. 193),
which gave to the creditor occupation for year and day before the sale
of land in discharge of debt of any kind, the year and day giving the
debtor's kin time to redeem the debt. In both cases there was a
taking of the land in gage, as a form of security : there was a poinding
of the ground which resembled the distraint on movables, in that the
usufruct did not go to reduce the debt. That these early forms of
the taking of land in gage, whether to secure recovery in demesne or
the recovery of a debt, are of importance in the history of the develop-
ment of the mortgage is well known ; ^ but we may here call attention

^ See Y. B. 3 Ed. II. (Selden Soc.j, gavelet, the fine, will be treated below,

p. 111-2, showing that land might lie p. Ixvi-vii.

' fresh ' for six years under the course of ^ Brunner, Grundriss, pp. 195-7 ;

agriculture. Hazeltine, The Gage of Land, Harv.

'^ One important peculiarity of the Law Bev. xvii., xviii.
VOL. II. d

Ixvi ' INTKODUCTION

to the fact that the borough customs give some illustrations of the
working of various systems for dealing with the gage of land,
including the gage of land voluntarily given (I. pp. 288-290).

In contrast to the rules which led to loss of tenement in case of
cesser stands the peculiar Northampton rule (I. p. 306), which requires
some examination. The rule was probably in the custumal of 1341,
but it is not in the earlier versions. Here there was, in the fifteenth
century, protection from a final loss of tenement. The defaulter
could recover, and his heir could recover, at any time on payment of
the arrears and of the landlord's reasonable expenses on the upkeep
of the tenement. The landlord was allowed to let the tenement to
another pending satisfaction (having already waited year and day),
but the court, which had given him leave to do this, could call upon
him to give it up to the original tenant, or his heir, apparently without
limit of time. As the whole matter was placed in the hands of the
court, it is possible that there was in practice a term set to the tenant's
liberty, similar to the limit of the * cessavit.' This is plainly hinted
in the passages of the Northampton custumal (I. p. 294) which tell of
the possibility of a fraudulent disherison resulting from the landlord's
neglect to give warning to the tenant by distraining. Warning he
was called upon to give, even, we may suppose, on the waste tenement,
by some formality which gave the tenant, and the public, notice that
the time for satisfaction was about to run out.

The Dublin rule (I. p. 313) forbidding the landlord to refuse his
rent, except in court, seems directed against the possibility of a
fraudulent claim to the land as being in arrear for rent, a possibility
anticipated by the law of Justinian (Cod. 4, 66, 2) . There must be,
it appears, a formal renunciation and an enrolment.

From these facts it appears that, with the single exception of
the passage in a late Northampton custumal, the usual intention
of the borough rules was not to protect the tenant from loss of
his tenement, but to subject him to loss of his tenement within
a given term. Possibly the term of the King's * ban ' may once
have allowed the burgess a more liberal term than was allowed to
other tenants in the days of forfeiture for rent arrear, but in later
times, until the * cessavit' brought the laws of the realm into
harmony with the borough rules, the burgess was dealt with more
severely than any ordinary tenant.

Fines for Bent Arrear.— A. further proof of the severity of the law
under which burgage rents were exacted is given by the ancient rules
for fining burgesses if they were a single day late in paying ' gafol.'

PROCESS AND EXECUTION Ixvii'

If a Londoner did not pay his gafol on the right day, in order to
recover his tenement, he had to pay an after-geld equal in amount to
the gafol, and, besides this, a penalty of 100s.,, the amount of his
wergild. It might be better for him to leave the tenement lying
* fresh ' and forfeit his chance of recovery. The Kentish * gafol ' was
to be paid punctually on yet severer terms. Eules which were per-
haps military in their first intention ^ came afterwards to be used for
private purposes, and we may meet on ecclesiastical and other estates,
as well as on estates owing castleguard, dues which doubled in amount
for every day they were in arrear.

In comparison with this progressive rise, the fine at Chester of
10s. (probably 10-fold), the 9-fold penalty of gavelkind, and the
11 -fold penalty taken by the Bishop of Worcester for church-rent in
arrear,^ were merciful. The various forms of penalty intended to
secure punctual payment,^ could be used by the officers of the borough
to enforce the royal claims, and when the borough was let to farm
the old method continued to be used against defaulters. That method
passed eventually to the burgesses when they in their turn became
landlords.

The necessities of the King's farm, which had led to severe rules
for the exaction of rent, prevailed also to cancel the privileges of
burgesses in the matter of distress. The burgesses, probably of their
own accord, made the King's farm an exception to their usual law,
fearing the consequences to the whole borough if the composition
were not fully paid (I. p. 103).

3. CONTKACT.

Perhaps the best introduction to the peculiarities of the borough
law on mercantile contract is afforded by the customs dealing with
the burgesses' right to go shares in the bargain which anyone of their
community made with a foreigner for the purchase of goods. These
rules show the public control of the sale of goods brought into the
town-markets, and the necessity for an official cognisance of the
contract made between a native and a foreign merchant. Materials
for the study of this curious institution have never been brought

^ See the appendix on the sursise of c. 60 — a fine of 5s. ; at Salon (Giraud,

rent. p. 256), a 3-fold penalty and 1-fold to

^ D. B. i. f. 174 ; H.E.L. ii. 269. the community ; at Aries (Giraud, c.

Such fines were common in the 135), 2-fold arrears and a 5*. penalty to

Continental boroughs, e.g. at Bergerac, the community.

Ixviii INTEODUCTION

together in any large number from the scattered sources where they
may be found, and for this reason it will be desirable to go into the
subject in some detail.

Sharing in Bargains,— The man who suffered distraint on behalf
of a member of his community for whom he had never stood pledge, and
in whose fate he took no private interest, experienced the unpleasant
side of medieval communal life. The risks he incurred were due to his
boldness in quitting the bounds of his own community. At home he
would have been safe, surrounded by the men of his own fellowship,
who could not distrain at haphazard. At home the principle of
fellowship did not show its unfavourable side. To remain in the
immediate neighbourhood of the kindred was the only way to obtain
the full advantage of the kin-bond, and the same was true of the
borough community, in which * vicini ' and ' amici ' were united by
a bond of common hostility to those outside their fellowship. One
of the chief of these advantages was the right to go shares in all
favourable opportunities for trading.

The origin of the privilege of going shares in bargains made by a
member of the community has never been inquired into. Some of the
evidence suggests that it belonged in the first instance to all members
of the burghal community, and that the object of it was to give all
these franchised persons an equal chance of buying when outsiders
entered the borough bringing goods for sale.^

It seems permissible to see in the rules relating to the sale of
victuals the earliest form of the system of lot. When in the later
texts it is stated that certain forms of the privilege were restricted to
certain groups of enfranchised persons, there was still a general right
of * lot ' in food, shared by all householders of the borough. The
earliest markets were presumably markets for the distribution of
victuals for household consumption, and hence it may be argued that
it is a later development of the rule of ' lot ' which restricted the
privilege, as regards wholesale buying for the purpose of re-sale, to
members of the trading community organised as a merchant gild, and

^ The only difficulty which suggests but seems rather due to the necessity

itself is the fact that the ' lot ' was of preventing disputes where many

accepted as a custom in fairs, and we would-be buyers are present. It is not

find also that strangers could share in impossible that the rule should enter the

the boroughs {e.g. Montpellier, 1205) in code of a fair in imitation of the borough

bargains which burgesses had rejected. rule, but of its relative antiquity in fair

The custom in fairs confined the right and borough we are not informed. That

to share to those present at the making strangers should share what the bur-

of the bargain, of whatever community gesses refused, as at Montpellier, may

they might be. It does not contain, like with more certainty be regarded as imi-

the borough rule, the fellowship principle, tative custom.

CONTRACT Ixix

a still later development when we find the privilege of sharing the
' option of first purchase in certain coromodities confined to members
of particular trades. Originally we take it that the burgess's * lot,' or
right to share, was the proper accompaniment of the * scot,' or duty
of payment to common charges. * Ou il n'y a pas communaute, il n y a
pas partage.' ' Wo keine Gemeinschaft ist, da ist auch keine Theilung.'
Our earliest evidence comes from St. Omer in the twelfth century.^
It shows the privilege confined to the merchant gild, with one impor-
tant and, as we think, significant exception, the purchase of victuals.
At St. Omer, admission to the merchant gild gave power to a merchant
to buy at the price which anyone not a member of the gild
had set on goods which he intended to buy. Thus the merchant
gildsman had an option of first purchase, as against the stranger to
the gild. In the next clause it is ruled that if any gildsman had
agreed to a price for the purchase of goods, other than victual, and of
the value of five ' gros sous ' and upwards, other gildsmen who
* supervened ' could claim to go shares in the merchandise at that
price. The saving clause concerning victual goes to prove that mem-
bership of the merchant gild was not necessary in this case, and that
all inhabitants had their * lot ' here, as was commonly the rule. The
merchant gildsmen's rule was intended to secure equal opportunity
for sharing in wholesale purchases of raw material and materials for
trade, not for household consumption.

The Montpellier rule of 1205 ^ clears up some of the difficulties of
the St. Omer account. The right to share here belonged to those
present at the making of the bargain, and a distinction is carefully
drawn to show that there was no claim to share in retail purchases,
made for the use of a man's household for consumption and not for
re-sale.^

The custumal of Bergerac * describes the burgesses' * lot * in

^^ Fagniez, Documents, i. 105. 'Si ilfo^/ew-^^e, 1905, p. 35, Vander Linden

quis gildam non habens aliquam suggests the reading, ' eo volente in

waram . . . taxaverit, et aliquis gildam mercato illo portionem habere,' which

habens supervenerit, eo volente in mer- we adopt.

cato illo porcionem habere, mercator ^ Fagniez, Documents, i. 113.

quod ipse taxaverat emet. Si quis vero ^ So also Abbeville, Monuments

gildam habens mercatum aliquod non inedits, Tiers Etat, p. 211, quoted by

ad victum pertinens, valens v. gr. s. et Fagniez, Etudes, p. 113.
supra, taxaverit, et alius gildam habens ^ Bergerac custumal (1367), Gout,

supervenerit, si voluerit, in mercato illo gen. iv. 1005, § 107. At Carcassonne

porcionem habebit, quod si forte taxator (Giraud, i. 71, § 118) the rule was si

supervenienti porcionem contradixerit aliquis in C. aliquem mercatum fecerit

et coram decano testimonio duorum de et alii homines C. habitatores presentes

gilda convinci poterit quod porcionem in domo vel in loco ubi illud mercatum

contradixerit, ii. s. emendabit.' In factum fuerit, si tunc dixerit se velle ibi

Ixx INTEODUCTION

victuals which they wished to buy for their own consumption. When
bargains were made in the market or shambles by any regraters of
victuals, the burgesses present could claim part for the needs of their
household, each paying an aliquot share of the price.

At Geneva in 1387,^ butchers and victuallers, buying for re-sale, had
to allow burgesses to claim shares on a similar principle, and here a
satisfaction was allowed for the original buyer's trouble, though the
sum was not fixed. In some cases the amount of profit allowed to
the first buyer, who acted as a middleman, was fixed, as for instance
at Berwick (II. p. 172). The burgesses seemingly did not always have
to be present in order to claim the household share ; in similar English
rules that is made clear. In London in the fourteenth century
the wardens of the fishmongers had authority to buy up fish under
certain conditions, and to distribute it among the fishmongers,
provided that if any freeman of the city came when such fish was
being bargained for and wished to have a * portion ' of it for his house-
hold, he might have it at the price at which he could have bought it
before the fish was distributed among the fishmongers.^

Eegulations of this sort are closely associated in principle with the
later legislation of the boroughs which authorised the borough ofiQcers
to buy wholesale and undertake the distribution among the member
of the community at a fixed price.

Another group of rules gave a special option of purchase to the
burgess in whose house the bargain was struck. At Bergerac ^ he
was authorised to claim his * pars,' and at Dover his share was half.
At Torksey he could claim the whole (II. p. 177) ; at Ipswich he could
claim a quarter ; at Grimsby a third fell to him or to others who had
opportunity to assist the seller in his negotiation. The help given, in
making the bargain, by the burgess who acted as * host,' was the
ground of his claim to this share. At Grimsby the rule did not extend
to the purchase of fish from the French and Flemish ; these purchases
were apparently undertaken by the community in the thirteenth
century.*

habere partem, ille qui mercatum race- ^ The examples of the ' common

perit tenetur iUis partem dare in illo purchase ' are for the most part later

mercato.' Several further references in date, and generally connected with

will be found in E. Mayer, Deutsche u. times of special scarcity. A mass of re-

franz. Verfaasungsgesch. ii. 238. ferences will be found in Gross, Gild

^ M^ms.de la Soc.d' Hist, de Geneve, Merchant, i. 136, and in Kropotkin's

ii. p. 342, § 53 ; Viollet, Communes, p. Mutual Aid, pp. 182-5, where the Con-

400. tinental examples are enumerated. E.

2 Cal. Letter BooTc, H, p. 143, of Mayer, Deutsche u. franz. Verfas-

which we have been allowed to see the sungsgesch. ii. 238-9, quotes further

sheets. ^ Loc. cit. § 106. evidence.

CONTRACT Ixxi

In some cases the first to conclude a bargain was given a larger
share than those who * supervened.' Berwick gave the first buyer a
quarter of the whole, Cork gave a quarter, and Dublin a sixth. As the
responsibility for the debt and the trouble of collecting payment lay
with him/ he deserved some compensation. At Northampton there
is indication that the selection of the first buyer was determined by
drawing lots (II. pp. 169, 170). The point of time, up to which grace
was allowed to claim * part,' varied ; in some cases claim was allowed
until payment had been made,^ or until the bargain was struck by
hand-clasp or earnest,^ or till delivery of the goods,^ or till twenty-four
hours had elapsed after the offer, or till sunset, if the offer. was made
at noon (II. p. 173).^

At Grimsby none but burgesses who had alienable burgages could
share — this partly, perhaps, in order to secure that there should be no
difficulty in obtaining a gage for payment.

The custumals generally include a rule to prevent the man who
claimed ' lot ' from going back on his claim when he had occasion to
wish to withdraw. He must take it * for profit or for loss.' The
Cinque Ports made loss of the right to * lot ' the penalty for an
attempt to withdraw. Uncertainty as to the number of partakers
must have been a difficulty in determining the wisdom of claiming a
share, in the case at least of the poor man. In this connection we
may notice that the Cork custumal gives a curious account of a plan
by which a graduated scale was made for partakers, * rich,' ' medium,'
and * poor ' : a scheme seemingly intended to make it possible for
each class to buy in proportion to its power to pay. The tallage-roll, or
muster-roll, supplanting the old wergild tariff, was perhaps the most
accurate known test of class, but the exact working of the scheme is
left in obscurity. The equal sharing of rich and poor is a point
constantly accentuated in the later examples of ' lot ' in the common
purchase made by gilds.^ In some cases rules were laid down to
secure the announcement of the opportunity to claim a share, and it
was made possible to send a proxy. At Sandwich freemen did not

^ Fagniez, Etudes ^ pp. 111-2, and the case of household purchase only.
Fagniez, Documents, ii. 168. ^ Gierke, GenossenscJiaftsrecht, i.

^ Bergerac, § 107. 348, 392, gives full references for in-

^ Eberstadt, Franzos. Gewerberecht, stances of the control of wholesale pur-

in SchmoUer's ForscJmngen, xvii. 93, chase of raw material with a view to

citing Giry, Etabs. de Rouen, c. 27, and division among the members of the craft

Livre de Metiers de Paris, tit. 78, art. or gild. Fagniez, J^tudes, pp. 111-2,

21. treats of French cases, and Des Marez,

^ Fagniez, Etudes, p. 112 (Paris). Organisation de Travail a Bruxelles,

'" Two days' grace in purchase of pp. 224-8, of Belgian cases.
(salt) fish at Southwold, presumably in

Ixxii INTRODUCTION

have to be present, in person or by proxy, in order to claim shares in
a ' foreigner's ' bargain ; but the ' foreigner,' on the other hand, had
this advantage, that he might keep one half of his whole purchase for
himself.

The manner in which the system of the * lot ' might be abused is
made clear in the story which comes from Derby in 1330. The
burgesses were summoned to answer by what warrant they claimed
liberties which were used to oppress foreigners selling in the town.
A single member of the merchant gild had been the buyer, and as
only one buyer appeared, he could fix his own price without competi-
tion ; none but brethren of the gild might buy, and the gild, it seems,
arranged to make the bargain through one member, in whose bargain
the absent members no doubt claimed * part.' The jury gave a verdict
which showed that it was the custom when hides, wool, or woolfells
came to the town, for one of the gild to put his foot upon the goods,^
and set a price ; and after that no one dared make an offer, neither
dare the buyer sell to any one not of the society, or at a higher price
than he had offered. ^

A special form of the right of partaking in opportunity for trade
was the * lot ' in freight, which a Torksey rule describes. The rule
seems to have been intended to give burgesses equal opportunities for
earning money by undertaking the carriage of goods by water (II.
p. 177).^

The manner in which this system of going shares was carried out
in comparatively modern times by the members of Parisian trading
companies is well described by Savary."* Each * corps de jurande '
had articles requiring that foreign merchants should bring the goods
they had for sale to the hall of the company, there to be inspected
and also divided among the masters of the trade. If there was
enough produce to admit of it, division was made into as many
parcels as there were masters wanting shares, and if not, then into
as many parcels as the goods would allow. The shares having been
made and equalised as far as might be, each master who wished to
share gave a copper token bearing his name, and the tokens were
put into a sack, whence they were drawn, after shuffling, to the

^ By way of making claim. Grimm, this custumal, ' sur covenanz et sur

D. B. A. i. 197. marchez n'a point d'essec. . . . Essec

^ Gross, Gild Merc. ii. 52. apelet horn quant home achatet chose et

^ There were elaborate rules on the autres clamet en la paumee part.' B. B.

sharing of ships' freight at Bayonne. of Admiralty, ii. 327.

Fagniez, Documents, i. 120-1, and "^ Diet, de Commerce (1723), s. v.

in the Ol^ron custumal. According to lotir.

CONTRACT Ixxiii

number of the parcels made. The masters took then- shares in the
order in which their tokens were drawn, and those for whose tokens
there were no shares went without. If the lots could not be made
perfectly equal, they were so appraised that the total value of the
lots came to the total value of the merchandise.

The cry of ' halves ' or ' lot,' by the would-be sharer, could not be
cancelled by some earlier cry of the first buyer, such as Scottish
school-boy law allows to a first finder : ' Nae halvers and quarters —
hale o' my ain, and nane of my neighbour's.'

Although the system of * lot ' was evidently open to fraudulent
evasion, as the rules for its enforcement bear witness, the difficulties
which had to be met were not so great as may at first sight appear.
It has to be borne in mind that the * foreigner ' could not, like the
burgess, sell privately ; at least he could not do so under sanction of
law. The goods which the foreigner brought to the borough had to
be sold in the market-place, or in the hall of the merchant gild, or
else through the agency of recognised hosts or brokers, who witnessed
his proceedings officially. The burgess might sell certain commodities
in his own private house, but the foreigner might not sell in the
house of a burgess who was not a broker ; if he did so, he sold
illicitly, and such illicit dealing was subject to many risks.^ The
chief difficulty was not one which arose after the foreigner's goods
were in the borough, but before they arrived, when there was risk of
forestalling ; upon the elaborate arrangements made to prevent this
enough has been said by the students of economic history.

The market system, which on the one hand made possible the
continuance of the ' lot ' intended to secure equality of opportunity,
on the other hand made it easy also for the King or the lords to
exercise opportunities of first purchase injurious to the rest of the
community. The King's right of first purchase was probably as old
as the market system itself, and in the royal charters to gilds of
fishmongers and others, the retention of the opportunity to buy ' at
the first price ' was secured.^

Official Witnesses of Sales, — "When burgesses could in safety make
private bargains, even with the outsider, the system of * lot ' could only
with difficulty be maintained under special trade regulations. The system
could not prove generally serviceable unless there was some measure
of publicity in the making of bargains. The amount of publicity

^ The distinction is clearly brought Letter BooTcs, G, pp. 158-9.
out in the St. Omer rules. Fagniez, ^ Herbert, Livery Companies, ii.

Documents, i. 78 ; also in Cal. London 120, and below, pp. 166-7.

Ixxiv INTRODUCTION

which was required by the various borough customs was not at all
times and in all places the same. The later customs of lot, for
instance, in the sales of fish, show that there was an announcement
made by public cry, to bring the would-be buyers together. In some
cases the purpose of the rule may have been regarded as sufficiently
achieved if the witnesses of the bargain alone had the opportunity of
sharing in it. But behind these divergences in detail there lies the
fundamental idea that there must be publicity in all dealings with

* foreigners ' in the borough. Publicity in trade was the corner-stone
of the mediaeval commercial arrangements for the inspection of goods,
for securing the foreigner's debt, and for the guarantees of contract.

The Anglo-Saxon laws on the subject of the necessary guarantees
of honafide purchase go far to explain the principles upon which the
borough rules of bargaining were based. In connection with contract
the later laws knew three classes of persons with varying degrees
of responsibility, the warrantor, the heimelborh ^ or pledge of warranty,
and the witness. The man who, in the event of litigation, could not
produce the warrantor had to produce the pledges of warranty and
the witnesses, if he were accused of the possession of stolen goods and
wished to defend himself on the ground of honest purchase. The
law of Edgar, IV. 3-6, seems to dispense with the need of a warran-
tor if official witnesses ^ of purchase, under conditions which prove
bona fides, can be produced. The official witnesses did something
more than testify to the fact of the exchange. It was their duty to
see that no untrustworthy seller was admitted to the market, or at
least to take heed that there was no obvious ground of suspicion
against the unknown seller. The ' foreigner ' who had sold the goods
and left the place could not be produced as warrantor when required ;
the official witnesses did not have to take the warrantor's place and
the duties of the defence, but their testimony cleared the honest
buyer when he was accused of possessing stolen goods. We may
perhaps see official witness of this kind as far back as the law of
Hlothaere and Eadric, 16. 2, which allowed that the testimony of two
or three * unfacne ceorlas ' would secure, as the oath of the King's

* wicgerefa ' would also secure, the price of the goods to a Kentish-
man buying in London ^ goods which proved to have been stolen.

^ On his Danish origin see Steen- must take place ' et ab eis ipse venditor

stnip, iv. 373 sqq. cognoscatur.' Hartmann, AnaleMen z.

^ The 36 sworn men of Edgar's law Wirtschaftsgesch. Italiens, p. 97.
may be compared with the Italian ^ q^ ^j^g relations of Kent to London

' judices ' of the ' Sicardi pactio ' a. 836, in 685-6 see Archceologia, xxxii. 305.

in whose presence all sales of cattle (Wright's Municipal Privileges under

CONTRACT Ixxv

A long series of Anglo-Saxon laws goes to show that purchase
in a * port ' and before official witnesses would serve instead of the
production of the warrantor, so far at all events as to protect
the buyer from the penalties of theft. The law of Edgar, IV. 3-6 fixed
the number of these officers, and shows that they were sworn. The
official witnesses simplified dealings between ' foreigner ' and * native,'
the justiciables of two several courts, so that in the end proof of
purchase in open market, or proof of purchase * by daylight/
sufficed to defend the buyer accused of possessing stolen goods. An
oath to the fact that the purchase was made from a man unknown,
whom the accused could not name, would, even under Henry I.'s severe
law on false coin, protect the man in possession of bad money who
could not produce a warrantor, and we find the same oath used in the
boroughs to meet other charges of a similar nature. To prove legiti-
mate purchase from a stranger, who could not be found, burgess
witnesses could be called ; as burgesses they were those ' lawful '
witnesses on whose presence the old English law insisted.^

Team. — Before considering the subject of the treatment of honest
purchase, on which the borough customs have much to say, a pre-
liminary word is necessary on their treatment of the simpler problem,
the discovery of the guilty party w^hen no proof was adduced of
purchase under special conditions, such as purchase in open market.
The borough rules here were of the usual order. It was the first duty
of the man who claimed the goods as his property to bring an
appeal of theft against the man in whose possession he found them.
In the simplest case the appellee produced his warrantor, and on
the warrantor fell the burden of proof. In the Cinque Ports (I. p. 62),
the warrantor could clear himself by compurgation if he could find
thirty-six compurgators. Twelve were selected, and the procedure
was like that of the appeal of homicide. Nothing is said on the subject
of the warrantor's offer to produce in his turn his warrantor, or of
limits to this proceeding ; nothing to indicate that a mere restitution
of goods on the part of the warrantor would suffice to clear him, a rule
which might be expected.^ At Fordwich ^ the man appealed of theft

the Anglo-Saxons) ; Kemble, Saxons, first business was to gather together

ii. 333; and Chadwick, A.-S. Institu- some ' vicini.'

tions, pp. 277-8. - Brunner, D.B.G. ii. 603, and

^ The trsictD einventione S. Crucis, notes,
ed. Stubbs, p. 34, gives an example. ^ Woodruflf, pp. 272-3 : the passage

Some plate (stolen goods) was about to should have been cited in full in our

be sold in London : ' cum convenis- text,
set de pretio expositarmn mercium,' the

Ixxvi INTRODUCTION

who failed to produce a warrantor was not allowed this compurgatory
oath, except in support of a defence that the goods had been his * per
totum tempus' ; ^ that is to say, he could bring a defence of * birth and
rearing ' (if it were a question of stolen cattle) and get his oath supported
by the twelve chosen out of his thirty-six. If he could bring neither his
warrantor nor this defence, he suffered as a felon, the stolen goods
being recovered by the claimant, as always in the Cinque Ports. The
Fordwich rule was more severe than the law of Ine, which allowed a
merchant to meet with oaths to the value of thirty-six shillings — that
is to say thirfcy-six hides ^ — a charge of possession of stolen goods,
which he could not prove to have been bought before good witnesses.^
Honest Purchase of Stolen Goods. — In no matter can the efforts of
the boroughs to cut tracks for themselves through the difiQculties of
practical jurisprudence be more clearly seen than in the treatment
of the question whether the bona fide purchaser or the man who has
had his goods stolen shall suffer loss when their claims come into
conflict. The borough law of bona fide purchase was not the uniform
international merchant law which was tending to grow up on this
subject, in protection of the possessor's claim against that of the
loser of the goods, but a law developing here in one way and there in
another, according to the circumstances in which the borough was
placed. Sometimes the borough kept two alternative methods of
dealing with the subject, one for the burgess, another for the foreigner.
At an early time, as already noted, proof of purchase before official
witnesses defended the innocent buyer from suffering himself the
punishment for theft ; but the buyer had to surrender the chattel
and lose all that he gave for it. This was the law of the Leis
Willelme, 21, la, and it was the common law in Bracton's day. Its
main principle, the recovery of goods under a prosecution for larceny,
from the third hand, and from the hand of one who bought honestly
in open market, is, we may say, the principle of our own law. The
law of Bracton's day, which defended the honest buyer from the risk
of suffering for felony, seemed to some of the mediaeval boroughs,
especially those in the less civilised part of the country, to concede too
much. Wherever cattle-raiding and horse-stealing were more than
ordinarily frequent, there was less inclination to encourage com-
mercial dealings, and there was a greater eagerness to make the
production of a warrantor necessary. The Scottish rules allow the
proof of honest purchase only to the burgess. Apparently the

^ Woodmflf prints tantum, but the ~ Chadwick, A.-S. Institutions,

Claudius MS. has totum. p. 134. ^ j^^^ 25, § 1.

CONTRACT Ixxvii

countryman, if caught in the borough with goods of a burgess,,
would be hanged despite his offer of proof of honest purchase. The
Scottish burgess swore that he knew not where the door opens or
shuts of the house of the man from whom he bought ; ^ he swore also
to purchase in open market and needed the support of twelve neigh-
bours as compurgators. The Dublin burgess had kindred privileges ;
the foreigner here had them also against the burgess. The Dublin
defendant had to find witnesses of honest purchase, and swear that
he never was day or night in the company of the seller, and
knew not where he could be found. Here the foundation of the
claimant's case is more clearly described than elsewhere. He
had either to produce twelve compurgators (a * secta ' of complaint
witnesses) or prove by * skin and hide,' by the brand set on the cattle.
On the other hand, to the more actively commercial boroughs the
rule of the common law seemed too hard on commerce. In some casea
they were inclined to the view that the true original owner ought not
to be able to assert his right against an honest purchaser buying,
under the precautions which the law prescribed. At Carrickfergus,
apparently, they reached this, the full length ; elsewhere they reached
only a stage of the logical journey, and ordered that he should retain
only a right to buy back at the price the innocent purchaser gave.
Merchant law all over the Continent was seeking to establish this
doctrine, which gave the owner a * retrait,' an option to buy back from
the honest purchaser. This form of the custom has left its mark
upon our modern law in one direction only, the law of the horse-fair.
Under the conditions of the statute of 2 and 3 Philip and Mary, c. 7,
which still holds good, purchase in open market protects the honest
buyer of a horse from the claims of the robbed owner, so far as to
give the buyer his price, if the owner claims his property in due form
by the oath of two witnesses. Our own law of the horse-fair was the
law of some of the boroughs, not for the purchase of horses only, but
for all purchases. The owner's recovery, by paying the price which the
buyer gave, first appears in the seventh -century law of Hlothaere
and Eadric, 16. 2, for Kentish men buying in London. We hear
nothing more of it in England till we meet the rule on payment of
price at Chester. The lord of Chester (I. p. 57) (after 1181) ruled

^ Of. the oath ' ab ignoto sibi emisse caverit, portet inde judicium se nescire

cujus etiam domus ignoret,' at Freiburg- nominare vel cognoscere aliquem a quo

im-B. (Keutgen, UrJcunden, i. 121.) acceperit.' Also the Lombard's oath,

Similar oaths are cited in Maurer, iii. that he bought from a Frank ' aut

694, and Henry I., De Moneta, § 2, nescio de qualem hominem («ic),' Leg.

' Si autem nullum warantum inde revo- Liutprandi, c. 79.

Ixxviii INTRODUCTION

that if a citizen made a purchase by daylight and before witnesses,
a Frenchman or Englishman who sued for the goods could recover
them from the citizen, and the citizen would suffer no penalty beyond
loss of the goods ; but if a Welshman laid claim to the goods, he had
to pay the citizen such price as the citizen could prove that he had
paid. Here the rule seems to be based not so much on the need for
security of purchase as on hostility to Welshmen. Other owners
were encouraged to claim their property from the innocent third hand ;
the Welshman was discouraged by being made to pay the price.

Fordwich, in the fourteenth century at all events, and perhaps
earlier, allowed the buyer every facility to recover the price, even after
repeated accusations of the purchase of stolen goods. He recovered
his price on the first charge if he could prove with two compurgators
that he bought honestly and without fraud. On a second charge he
needed five compurgators, on a third eleven. The custom does not
arrange a scheme for his defence on the fourth and subsequent charges,
and presumably he then fell under the common law. If he failed in
any of his compurgations, he was to be adjudged according to the law
of the land ; that is, he forfeited his franchise and would be appealed
as a thief in the usual way.

In some places purchase in open market had to be proved, in others
purchase by daylight. Perhaps at Chester, where we meet the * daylight '
purchase, there was open market every day, as in London, according
to modern statements of London custom. The law which gives to a
customer's purchase in a London shop the privileged character of
purchase in market overt, securing the buyer in every way except
against the owner's recovery under a prosecution for larceny, first
appears, so far as we are at present informed, in the sixteenth century,
as a statement of old custom.^ There lies behind it, no doubt, much
history, the whole history of retail trade, and in some few cases we
can see the course of that history, for instance in the trade of the
bakers, fishmongers, and goldsmiths.^

' 5 Rep. f. 83, Hil. 38 Eliz. Coke 37 Ed. III., but this point was in dis-

says, * When I was Recorder, I certified pute in 1321. Cust. pp. 385, 404. Cal.

the custom that every shop in London Letter Book, H, p. 143, shows that,

is market overt for such things only later on, fish, offered for sale in front of

which by the trade of the owner are put the shop in view of the people, was

to sale there.' offered ' in open market.' The London

At one time (to secure publicity goldsmiths (Herbert, ii. 288) could buy

and inspection) bread might be sold and sell only at the Exchange and in

only in market. London Pleas and Cheapside, a rule to secure publicity and

Mem. Roll A 1, Roll 2 (1327) ; also prevent secret purchase of stolen goods.

according to old custom, fish, Herbert, The rules for inspection of the quality

Livery Companies, ii. 120, citing Pat. of goods and for the official sanction of

CONTRACT Ixxix

In London the liberty to buy and sell out of market was a liberty
that might be suffered in certain trades, under certain ordinances,
when burgesses were dealing with fellow burgesses ; but for long
the foreigner's commercial dealings, at least when he was selling,
had to be carried through in the markets under supervision, or
through brokers officially appointed. The statute 1 Jac. c. 21, which
deprived the London pawnbroker of the London privilege of protected
purchase, observed that it was under the name of ' brokers ' that they
sought to cover themselves, as a means, we may suppose, to secure
this privilege. That commercial bargains of all kinds made in
accordance with the legislation of the borough could claim security
under the law of purchase in market overt may be regarded as
certain, but it is very doubtful whether the principles which nowadays
determine decisions on disputed points in connection with this custom
have very much in common with the principles of the thirteenth and
fourteenth centuries.^ However, as yet we know nothing of the
London plea-rolls.

In comparison with the Continental laws on the subject of honest
purchase of stolen goods, the English boroughs, so far as we know
their law, appear little susceptible to the commercial influence. The
law of Hlothsere and Eadric stands strangely apart, and our ignorance
of the history of Kent and of London at the close of the seventh
century makes its interpretation peculiarly difficult. Visigothic
law and the Bavarian laws, which go back to Euric (475), gave the
honest buyer half the price. The Visigothic law (475) protected
the honest buyer's possession wholly if he could prove that he bought
from a merchant who came from over seas.^ The Bishop of Bourges's
charter on the Treuga Dei, 1065,^ gave the buyer the price ; so also a
fair charter of 1075 ; and from that time the principle which protected
the buyer rather than the robbed owner gained ground.''

Breach of Covenant. — The law which protects a man buying in
open market shows how the place, rather than the presence of official
witnesses, of the bargain, came to be deemed the essential point.

contract and for the opportunity for p. 132) the buyer returned to the owner

' lot ' fitted into and supported each other. the goods or the price. The owner was

^ Hargreave v. Spink [1892], 1 Q. B. protected at Amiens, Ordonnances, xi.

25, is the leading modern case. 264, cap. 32 : at Freiburg-im-B. (12th

2 Brunner, ii. 507. c.) (Keutgen, i. 121), Ypres in 1265

^ Du Cange, s. v. Treuga Dei. (Warnkoenig-Gheldolf, p. 465), and

'^ Mitchell, Merchant Law, p. 98, Belves (Dordogne), Nouv. Bev. Hist.

gives many references. See also Bris- 1899. Also in several German boroughs,

saud, p. 1210, and Bordeaux Custumal, Maurer, iii. 674.

c. 18. But at Valenciennes (Bauchond,

Ixxx INTRODUCTION

The reliance placed on the ' fides facta ' by the borough customs is an
instance of a similar loss of regard for the essential in the adherence
to a point of detail. It is believed that the earliest of all legally
enforceable promises was a promise made under the sanction of a
court, and that the earliest witnesses of contract were official witnesses.
We are told that the earliest occasion of the enforceable promise
was given when one of the parties to a suit submitted to judgment
and agreed to offer a monetary satisfaction on a certain day, pledging
himself in a most solemn manner and invoking the curse of the
gods upon himself if he failed. The agreement, at first publicly
witnessed by the court, lost its formality when, under the same
solemn curses, men pledged themselves to each other either privately
.before witnesses, or, if the parties to the contract were of two
different jurisdictions, publicly in the market-place, or in other places
where foreigners were permitted to trade. To the solemnities of
the passing of the * festuca ' succeeded the pledging of Christian
faith, the affidation. The special characteristic of the borough law of
agreement, as contrasted with the common law of the fourteenth
century, was its acceptance of the validity of the 'fides facta' as
sufficient to bind a bargain and give an action for breach of covenant
in the borough court. The contract was formal, though a once
elaborate ceremonial had been gradually reduced to the simplest of
forms, a mere grasp of hands. The burgess who could ' affy,' if he
could not find a gage or pledge, who gave his faith on the bailiff's rod,
who in Lent offered affidation in lieu of the oath,^ could pledge him-
self by the hand-clasp, an act visible, audible, that could be witnessed
of sight and hearing ; and if a party to the agreement sought remedy,
the borough court, and perhaps some other of the local courts,
gave the action for breach of covenant. The borough court, content
with proof of hand-clasp, was well satisfied with tally though unsealed,
and treated sealed tally as equal to the most solemn form of obligation.
All this was contrary to the doctrines which the royal courts were
laying down at the end of the thirteenth century, when they limited
the sphere of the action of covenant to the case in which a deed could
be produced.2 A Grimsby rule (II. p. 182) which presumably was
intended to restrict the foreigner's opportunity to use the action of
covenant, while leaving him the action for debt, if goods were sold
and delivered, made agreement by hand-clasp valid only between

^ The Winchelsea passage (I. p. 26), can scarcely be associated with the an-
in which the indicted ' vendra et estra cient adramitio.
de afier de felonie ' is mysterious, but ^ u,e.L. ii. 217.

CONTRACT Ixxxi

burgesses, when bargains were made in buying fish and corn. The
foreigner, it seems, had to produce deed or tally in protection of
contract in these particular commodities.

The difference between covenant and debt comes out clearly in
the borough rules which for long, at Sandwich for instance (I. p. 208),
yielded no damages in the action for debt, except under a deed.
The action for debt was long conceived as based on a * deforcement,'
the withholding of some particular thing, ' a sum certain,' and the
remedy was the recovery of that thing or its equivalent. Belonging
to the oldest group of actions, the debt action was not in origin an
action for damages.^ The covenant action, arising out of a breach of
personal obligation, contains a more modern idea, and was an action
for damages.^ In London so late as 1327 (I. p. 208) no damages
might be claimed in a plea of debt, but in 1345 ^ damages were fixed
at 20 per cent, per annum, unless the debt were acknowledged at the
first summons. The damages for debt we find taxed by the court in
the Lincoln Curia Forinsecorum (I. p. 197).

The characteristics of the borough law of contract come out very
clearly in the matter of claims against the executors for the testator's
debts. In London and the Cinque Ports the creditors could claim
for debt and for breach of covenant against the executors without
producing any deed,* though the Edwardian common law required
a sealed document. London in 1379 (I. p. 211) took the common-
law view, but only for a time, returning again to the original position.
The executors in London could meet the claim, supported by
a * secta,' with compurgation, or could use the oath on conscience at
the Cinque Ports (p. 212, note), whereas the common law allowed no
man to wage his law for another man's deed, except in the case of a
successor of an abbot, whose house never dies.^ The Hereford law
followed the common law, inasmuch as the executors could only be
sued if a deed of the testator could be produced.

In these rules there may have been a conscious determination on
the part of the borough court to provide itself with the remedies
offered by the ecclesiastical court, where affidation was acceptable and
the deed was not required.

In spite of the facilities enjoyed by the burgesses for the making

'• E.E.L. ii. 522. ^ None the less in London provision

^ lb. p. 204 sqq. for recovery from executors was some-

^ The date of the rule in Liber times made in the obligations enrolled.

Albus, i. 471, can be fixed by Cal. Cal. Letter Booh A, p. 16 (1278).

Letter Book F, p. 127. See H.E.L. ii. ^ Co. Lit. 295 a, citing Y.B. 5 H. VI.

213. and 1 H. VII.

VOL. II. e

Ixxxii INTRODUCTION

of binding agreements without deeds, a great number of deeds of all
kinds appear in the earliest London Letter Book from 1275 onward,
officially enrolled. For some unknown reason, in the fifteenth century,
London and Lincoln showed themselves opposed to the double bond
or bond with penalty for defeasance, and did not allow the penalty for
defeasance to be executed (I. p. 208). Perhaps they had been troubled
with the bond of some merchant of Venice.^

From some points of view it might appear that the characteristics of
the borough law of contract were due, not to a retention of early law,
but to the influence of the merchants, who were moving towards
a law merchant uniform all Europe over. The consensual contract
was becoming accepted through their influence, and if on the one side
they were hastening the development of the most highly formal
contract by written ' stipulatio,' on the other they were finding their
way to an equity of contract, dispensing with ceremony, and dealing with
substance and intention.^ In the fifteenth-century custumal of Lin-
coln (I. p. 204), entry in a merchant's book was deemed equal to an
obligation.^

Earnest. — Certainly the mercantile influence seems to have been
strong in the boroughs to shape the law of earnest along the lines that
were being adopted by merchants elsewhere. The merchants sought
to make earnest and God's penny equally binding on both buyer and
seller. According to some writers ^ the Germanic * arrha ' ^ was a
payment by the buyer in return for a renunciation on the part of the
seller,^ a payment like the other formal payments required to secure the
legal validity of gratuitous promises : it is believed that it bound the
seller to abstain from sale, but not the buyer to purchase. Indeed, the
buyer's hope of purchase might be destroyed by a burgess's * foreceap,'
or right of pre-emption, which cancelled the foreigner's bargain made
with earnest.'' But, under the influence of the Eoman law of earnest,
there was a tendency for earnest to become a mere rue-bargain,
sometimes double the earnest being forfeited on resilement by the

^ Shylock rejected the 'single bond' * jj^e.L. ii. 211; Heusler, ii. 253;

and decided on a double bond. H.E.L. but Brissaud is opposed to this view,

ii. 222. The point is correctly ex- pp. 1398-9.

plained in Campbell, Shakespeare's ^ Brissaud treats the word as of

Legal Acquirements, p. 49. Semitic origin, p. 1399, note.

2 Mitchell, Merchant Latv, pp. ^ Besides the seller's promise to give

104-5. the buyer first option of purchase, a

' Cf. Thayer, Evidence, p. 521, on payment might pass when goods were

the use of a merchant's account-books taken ' on approval.'
to prove his own case, recognised as ^ steenstrup, Normannerne, iv. 378 ;

customary by St. 7 Jac. I. c. 12. E.H.B. xvii. 718.

CONTRACT Ixxxiii

receiver, only the amount of the earnest by the giver.^ The merchants,
however, regarded the earnest and God's penny, which they treated as
identical, in the light of a gage, binding both parties and fully * vesting '
the contract. This was the doctrine accepted by the merchant gild of
Berwick in 1249, and this was the rule made binding on all merchants
by the law of Edward I. in 1303. Many customs, without making the
earnest absolutely binding, made the penalty for withdrawal almost
prohibitive : namely, pound for penny. At Preston, in the twelfth
century, the receiver of earnest — i.e. the seller — forfeited double the
earnest, but if the agreement was so nearly completed that the buyer
had already handled the goods, the receiver paid 5s. (pound for penny,
assuming that the earnest was a farthing). ^ The DubHn rule made
the receiver of earnest forfeit double, while the giver of God's penny for-
feited 10s. (pound for penny, assuming that he gave ^d.), apparently
distinguishing earnest and God's penny and making the latter
peculiarly binding on the giver, and not on the receiver as usual. At
the same time it was made possible in Dublin for either party to
resile from a covenant of any kind by a fine of 20s., if that would
satisfy the other (I. p. 213).

Probably the statute of 1303 was satisfactory to the boroughs, as
it does not appear that custom was maintained in this matter.
Custom had worked towards the statute.^

The handclasp contract was held binding unless there was com-
plaint of the quality of the goods. Such complaints were submitted
to an inquest in the thirteenth century (II. p. 182).^ In the sixteenth
century Lancaster gave no action except when there was an express
warranty of quality. The buyer must ' let his eye be his chapman ' :
perhaps an old form of rule on this subject, for it was proverbial in
France, * qui n'ouvre pas les yeux doit ouvrir la bourse.' Glanvill
(x. 14) observes that the seller could be compelled to take back the
goods if the buyer could reasonably prove that they were sold as sound,
and were not sound, at the time of sale ; but he was not able to lay

^ Brissaud, p. 1398. The L. Baiuwar. made resilement illegal if the God's

XVI., c. 10, is peculiar, making the for- penny had been given, Lj^dgate, in his

feiture of earnest a fine for lateness in verses on the ' Emptiness of his Purse,'

payment : ' Qui arras dederit pro qua- said :

cumque re, pretium cogatur implere quod ' An ernest grote whan it is dronke

placuit emptori, et si non accurrerit and goon

ad diem constitutum . . . tunc perdat Bargeyn of marchauntj's stant in

arras, et pretium quod debuit impleat.' aventure.'

Schroder, D.B.G. (1894), p. 267 note. * Cf. Amira, i. 565, on the appoint-

^ A Northampton rule required a ment of four persons to inquire, two

silver piece (I. p. 218). selected by each party.

' But, despite the statute which

e 2

Ixxxiv INTKOJDUCTION

down a rule as to the time allowed for such complaint, and no rule.:
of time are given in our texts, such as may be found in the Assize of
Antioch, § 18, and elsewhere.^

Contracts of Service, — The custumals recognise the existence of a
servant's contract, but do not reveal the manner in which contracts
of service were made, or much of the procedure. The Northampton
custumal of the twelfth century treats of breach of covenant on the
part of a nurse or a weaver, and gave power to the bailiffs ' to do right
from day to day ' : that is, to treat the case as though one of the parties
were foreign. The departure of the servant apparently could not be
prevented, but the plaintiff could hasten to the bailiff, who ' attached
the plea ' at once, and this brought the servant before the court. No
one might take a servant who was under contract to another, and it
was necessary, under penalty, to make inquiry as to how the ser-
vant left his last master. At Dublin the offence of • slocking ' or
enticing away a servant ^ from his master was heavily punished, and
the man who took a servant without warning the late master, ' as one
friend would warn another,' was held answerable in life and limb for
any death that took place in the late master's household through
* want of a servant.' The contract of service should be made before
two witnesses, preferably the late master and mistress. No doubt the
transfers of service made at the annual hirings were under the official
witness of the market, and a * warrantor ' would not be required to
defend the masters claim to his servant if he could prove such hiring.
The apprentice's contract had to be enrolled in the borough court, at
least from the time when admission to the franchise of the borough
depended on proof of the completion of the term of apprenticeship.^

Detinue. — Although action for detinue is discussed in a Eomney
custumal (I. p. 219), the statement is insufficiently detailed to be of
much service.

Account. — Action in plea of account was taken before auditors
appointed in the borough court, and wager of law was allowed to the
defendant only if the plaintiff had neither tally, nor witnesses, nor
other evidence of receipt. At Lincoln the action could only be brought
against a receiver, not against a bailiff— a curious rule, the purpose
of which it is hard to guess.

Merchant Laiv. — Many matters of the first importance to mer-

^ Bergerac, cap. 113. of course be proved in court, and the

"^ The craft gild ordinances often rules provide a punishment for the

contain rules forbidding the enticing seducer.

away of apprentices. Liher Cust. pp. ^ j^^^^ London (ed. Stubbs), pp.

78-81. The apprentice's contract could 85-6 (1275).

CONTKACT IXXXV

chants fail to find notice in the borough custumals.^ Merchant law
appears in these codes as only a subsection, chiefly interesting to the
clerk of the borough court for the forms of its piepowder court, its
rapid procedure, its arrangements for the foreigner, and the trader
travelling from place to place (II. pp. 183-5). That our custumals
have so little to tell of the rules of hosting and brokerage, of the
beginnings of the negotiable instrument ^ or the responsibilities of
partnership, of rules concerning the delivery of goods, of owner's risk,
of negligence, of covenant and account, seems to show that if market
law could once claim a big share in the making of borough law, the
larger commerce of a later time was sending its stock of legal ideas
into another channel.^

Agency, — The direct influence of the merchant law can, however,
be traced in the London law of agency. A London rule of 1285
(I. p. 222) directed that if a servant or apprentice of a citizen bought
goods from a merchant and carried them to his master's house, the
master was answerable for the goods. This is the expression of a rule
of merchant law, laid down at greater length in the treatise on the
Lex Mercatoria preserved at Bristol.^ According to the law merchant
the master was answerable if the servant took the goods on credit,
for credit had been given to the agent because he was believed to be
acting for his master : the safeguarding clause is added, ' provided
that the apprentices and agents (submercatores) are known to be under
their master, and to be openly serving and trading with the goods of
their master before and after an exchange or delivery by the hand
of such agent, or at least at the time of such exchange and delivery.'

4. Alienation and Inheritance.

Freedom of Alienation. — The earliest passages that treat of freedom
of alienation in the borough accentuate the fact that it is the borough
house that is the alienable commodity rather than the borough land.

* Briinneck, p. 185, notes the scarcity Laiu Merchant (1904).

of trading laws in the Sicilian town * Bickley, Little Bed Boole, i. 66;

laws. Mitchell, pp. 84-5. Cf. Amira, i. 571 :

* Cal. London Letter Booh A, p. 6, in Sweden if a man's wife, children, or
in 1276, shows a bond to pay certain servants exceeded their legal right to buy
persons (foreigners), or to their com- and sell, the house master could cancel
panions, or to their attorney bearing their contracts and require a penalty
tally. Cf. H.E.L. ii. 225. (seemingly from the other party to the

^ The whole subject of Merchant contract), except in the case of market
Law in its main outlines and its litera- purchase in all Swedish town laws, and
ture is admirably treated in Mitchell's of shop purchase at Visby.

Ixxxvi INTEODUCTION

The system of agriculture which supported the kin-right in land did
not affect the disposal of the homestead, which in early Teutonic con-
ception was ranged in the category of movables.^ The house was
built of wood and transportable (II. p. 92). 'Was die Fackel ver-
zehrt ist Fahrniss,' and this, of course, not only in the boroughs. But
the burgess's goods were his own, while the goods that the country-
man possessed were often rather his lord's than his own. Even the
burgess's goods might be subject to seignorial rights which made it
not always possible for him to do what he liked with them.^ His
house was less his than were the contents thereof, for his house owed
*gafol,' and the payment of gafol could be enforced by severe
measures. For this reason it was necessary that the burgess should
ask leave if he wished to abandon the house or to alienate it, for such
leave alone would exempt the outgoing burgess from his responsibility.
The Domesday entries point, not so much to an enfranchisement of land
conveyance, as to an enfranchisement admitting the burgess to free-
dom of movement,^ an enfranchisement legalising the sale of a house
on which the King's debt was charged. Thus Domesday Book reports
that at Hereford it was necessary to obtain the reeve's leave for sale
of the house, and the reeve took a third of the price, whereas at
Torksey no official leave was needed. As there was risk of the levy of
a seignorial fine upon the alienation of either land or goods, it became
of importance to the burgesses in negotiation with their lords to
render alienation of every kind free from the need for the lord's con-
sent, or subject only to a fixed and moderate tax. Even after the
statute of Quia emptores^ the lord of Manchester included in his
charter (c. 33) a clause requiring a payment of M. from any burgess
who sold his burgage in order to quit the town ; ^ and payment of ' lods
et ventes ' (as they were called in France) seems to have been expected
(II. p. 65) in custumals of later date than the law of 8 Edward II,,
which forbade fines to be levied on freemen entering upon the. fees of
the lords.^ As has happened frequently in the history of borough
law, the short step in advance which the boroughs were able to secure
was guaranteed under conditions so fixed that when the time came for

^ Vinogradofif, Growth of the Manor, safe-conduct on departure and to admit

p. 208, citing v. Amira, in Paul's Grund- freedom of movement were known in

riss, 2 ed. iii. p. 183 ; Huber, iv. 683 ; the German boroughs. Maurer, i. 392.

Maine, Early Law and Custom, p. 336. Domesday Book shows examples of

Oddly enough, it was in towns that burgesses who could not depart (ii.

houses first became immovable (when f. 116).
they were built of stone). * Of. Merttens v. Hill [1901], 1 Chan-

* Pp. cxxxvi-vii, below. eery, 842 (see pp. 851, 854, 857).

' Special rules for the provision of ' Bolls of Pari i. 298.

ALIENATION AND INHERITANCE Ixxxvii

the general law to take a longer step in advance, the boroughs were
left behind.

One form of restraint on alienation to which the boroughs adhered
marked a retention of the old folk-law, but of folk-law modified by
a limit of year and day which may once have been a borough
reform. A time came when freedom of alienation inter vivos was
less complete in some of the boroughs than it was in the country,
inasmuch as some boroughs retained the * retrait feodal ' and the
' retrait lignager ' as custom when the general English law had ceased
to know either. Many of the boroughs sought to maintain the old rule,
which distinguished the lands of inheritance from the lands of purchase,
and made only the lands of purchase freely alienable.^ The lands of
inheritance were alienable only under certain special conditions, and
there is nothing to show that the measure of alienability which the
boroughs achieved was peculiar except in the time limit for the 'retrait.'
Their law is pretty closely represented by the general law as described
in the Leges Heiarici (70 §21; 88 §14a; 88 §15). The first of
these texts lays it down that the father's chief messuage, the ancestral
land (' primum patris feodum '), must go to the eldest son, while the
lands of purchase (* emptiones vero vel acquisiciones ') can go to whom
the father likes to give them. The second text states that no one may
deprive his kin of the * hereditas ' by gift or sale, more especially not
if the kin (' parentela ') forbid it and offer their money for it (* pecuniam
suam velit in ea mittere '). The third text [88. 15] declares that if any
one deserts his father or his kinsman in his mortal need, in sickness
or in poverty, and a kinsman or a stranger succours him by finding
him the necessaries of life,^ receives the inheritance before witnesses,
and is adopted as a son to inherit the chief fee or the land of purchase,
then any plea for the inheritance shall be settled by the judgment of
* the wise.' It was to old rules of this kind that the English boroughs
incHned at a time when the general law was proceeding upon other
principles.^ Glanvill's doctrine that the purchased land might be

^ The Irish law had the same dis- death from hunger or the charge of

tinction. M. J. Bonn, Engl. Kol. in debt which would lead to greater damage

Irland, i. 64. in the future : in such case a guardian

'^ Cf. L. Saxonum 62 : No one may or father might sell a minor's land. Leg.

make a transfer of his inheritance, except Liutprandi, c. 19, c. 149.
to the king or to the church, to the dis- ^ The Lincohi rule (II. p. 61) suggests

herison of the heir, unless compelled that no alienation was possible without

thereto by hunger, and in order to be consent ofthe kin, but the land of inherit-

fed by the man to whom he transfers ance was perhaps here alone in question,

it : quoted in Jenks, Laiv and Politics, An example showing that in the country

p. 213. ' Urgent necessity ' meant risk of land might be given by a father to a son

Ixxxviii INTKODUCTION

alienated only if there were inheritance, wherewith to provide the
heir, is not represented in the custumals,^ but the Norman law giving
the right to ahenate both purchase and inheritance, subject to the
kin-right to first purchase,^ appears at Northampton (II. p. 63), and
also (if we may be guided by the fact that no distinction between pur-
chase and inheritance is made) at London, Lincoln, and Nottingham.

The right of the kin to prevent alienation of the inheritance was
limited in the early law in two ways. It might be set aside altogether
if * urgent necessity ' could be proved before the court,^ or it might
be cut down by making it necessary either to maintain the necessitous
kinsman during his need, or else to clear him of debt.^ The
Scottish rule (II. p. 69) gives minute particulars with regard to the
conditions of maintenance and the necessary clothing. Again, the
right of the kin might, on proof of urgent necessity, be still further
reduced to a right of first purchase, a right to buy at the price a
stranger offered. * Necessity knows no law,' as the Scottish custumal
observes (II. p. 94), but necessity had to be proved to the satisfaction
of a court of law, before the alienation held good.^ The Scottish
burghs, considering the case in which a father had in his lifetime
conveyed his lands to his son, made it incumbent on the son to
maintain the father in his necessity, or the father would recover the
right to sell or gage the lands, both of line and conquest. Here twelve
neighbours had to settle the question of necessity (II. p. 67).

Some custumals set aside the need for any proof of urgent neces-
sity, and give the kin simply a right of first purchase, for instance,
at Preston. At Fordwich there was yet another variety of the rule,
for there the kinsman, who took the option of first purchase, got the
land at a reduction on the price already offered by another. Some-
times the custom favoured a burgess kinsman as against a non-burgess
kinsman. It is not always made clear whether any kinsman, all the
kinsmen, or only the heir apparent, had the right of first purchase.^

' so as he was not able to grant, sell, or the rule that the children could forbid

give it in gage,' 1218, is given in Rigg's sale if they promised to support their

Calendar of the Plea Bolls of the parents.

ExcJieq. of the Jews, p. 6. ^ Cf. Brissaud, p. 1344, and on ' ne-

^ Nor was there any law like the cessite juree ' (echter Noth) Kohler in

French rule admitting the alienation of Festgahe f. H. Dernburg (1900), pp.

a certain fraction of the land, usually a 243-6.

fi"^' ^ See note, p. cvi below, on a Lin-

Brunner, Pol. Sci. Q. xi. p. 542. coin text, which suggests that any

The Welsh laws define * urgent kinsman had a right to interfere. At

need ' as need for meat and drink, or for Antioch, if land had been bought by a

money to pay debts. L. Wallie, XI. i. 3. kinsman, a nearer kinsman had no right

* The Antioch custumal, c. 3, had to ' retrait,' c. 12.

ALIENATION AND INHERITANCE Ixxxix

Many of the Continental custumals contain very minute rules on
the subject ; ^ the English rules are less detailed.

What caused the retention of the ' retrait ' may have been the
rule requiring claims to be entered in year and day.^ This is
found at Northampton in the earliest custumal (II. p. 63) as a right
to claim purchase within the three pleas first held after the feo£fment
had been made by reason of poverty. In the second custumal
(II. p. 64) this term, the year and day of the three * generalia placita,'
being found too long, it was required that the seller should fix a term
of a week or more within which the price should be paid or the
necessaries found. If the seller gave a secret seisin to deprive the kin
of their right, claim could be made at the three pleas following the
time when the feoffment became known to them. The latest of the
Northampton custumals gave a right to claim at any of the four pleas
first held after the agreement to sell had been made.

At Cardiff and Tewkesbury the burgess in urgent necessity had to
* summon ' and ask his heir apparent before witnesses three times for
the necessaries of life, but the intervals between the three askings are
not named. There may be here a weakened form of the year-and-
day rule to suit the case of urgent necessity. The twenty-four hour
term of the Norman boroughs does not appear in the English
custumals.^

The earliest records do not make it clear either that the sale should
take place before the borough court or that the kin's claim to first
purchase must be made in the borough court. At Northampton
(II. p. 64) in the twelfth century the giving of seisin in the absence of
the chief borough officers and out of court is regarded as a possible
contingency, the seisin having been transferred before lawful contract-
witnesses (' legales convencionarii '). The kin might fail to become
aware of such a conveyance, and in that case a year and day's un-
disturbed seisin would not protect the buyer from the kin's claim.
Possession for year and day protected only the man who had bought
land in the borough court (I. p. 273), and in the later rules convey-
ance before the borough court appears to be taken for granted. If
doubt arose concerning the price which the kinsman must offer in

^ Very full rules are given in the Genestal, Tenure en Bourgage, p. 269.
Sicilian town laws (Brtinneck). At Bor- ^ At Lille the term for * retrait ' was

deaux (Barckhausen), c. 86, only the two years and two days (Roisin, pp.

heir apparent had the retrait, and he 60-1). In the Sicilian boroughs there

could not cede his right to another. The were many varieties, from seven days to

right passed to the eldest in the same year and day. Sometimes a week was

degi'ee. given to the kinsmen present, a year to

~ Gruchy, Cout. de Nor. p. 97 ; the absent. Brtinneck, pp. 110 sqq»

XC INTKODUCTION

order to recover from the would-be purchaser, the kinsman could put
the buyer and seller and contract-witnesses to the oath. The attend-
ance of the buyer and seller at the court could be compelled by distraint.
If they failed to appear at the third court, the land was taken into the
King's hand, and if not replevied at the fourth court, the asker of
the * retrait,' who had in the meanwhile given the purchase-money to
the bailiff, was put in seisin by the court. After the ' acate ' or
'retrait' had been asked, no costs were allowed for expenditure
incurred upon the land by the first purchaser, but he recovered the
costs incurred before that time. The buyer in ' retrait ' was compelled
to pay within a week of the time when his claim was made good. To
prevent fraud several other rules were drafted, for instance against
borrowing money to buy in ' retrait ' when the land had been improved
by the purchaser, and against buying under colour of * retrait ' for
another.^

The mention of a lord's right of first purchase is also not un-
common.^ At Northampton (II. p. 65) it became valid only when no
kinsman claimed. The same rule held at Bayonne.-^ At Norwich
there was a kin ' retrait,' and, if that were not exercised, a
seignorial ' retrait,' in buying lands about to be sold for pious uses
under the conditions of a will (II. p. 73). This form of ' retrait ' was
used also at Lille.^ The principle of the * retrait,' or privilege of the
option of first purchase, was applied in many other directions. The
burgesses' pre-emption of goods at the price fixed by a buyer has been
noticed above ; the guardian's ' retrait ' of ships belonging to his ward
is noticed below (p. cxxxiii). There was also a tenant's right to buy
at the price another offered (I. p. 313),^ and an heir's pre-emption of
sales made by a widow (II. p. 74).

Besides the * retrait' of land about to be sold, there was in the
Scottish burghs a ' retrait ' of land seized for debt ^ by a i)ledge or
creditor (I. pp. 193, 210). The next of kin could keep the land if he
(or they) paid the debt or paid the purchase-money.

The English rules of * retrait,' though fairly abundant, are less
careful than those of the Continental borough codes, which show the
* retrait ' in full activity as a constant source of legislation.^ How

^ Similar rules may be found at ^ Balasque, ii. pp. 315-6.

Bayomie : Balasque, ii. 315-6. ^ Koisin, p. 69.

2 At Liibeck the lord had the first '" See a\so Cal Letter BooTc A, t^. 156.

right to buy if the tenant had built on ^ See above, p. Ixii.

the land. Hans. Geschichtsbl. vol. 23. " Cf. the custom of Bergerac, of Bor-

PhiUppi, Weichbild, p. 17, quoted in deaux, or of the SiciHan towns. The

Hegel, Stddtewesen. ' retrait ' is still a flourishing institution

ALIENATION AND INHERITANCE XCi

customs of this kind, which restrained the alienabiUty of the fee
simple in disregard of statute, were dealt with in the courts of
common law in the fourteenth and fifteenth centuries we are not in a
position to say.

The * retrait lignager,' or * feodal,' weakened to a privilege of first
purchase whqii the land was alienated by sale, was not the only form
of restriction : we have next to consider the rules which forbade
alienation to particular classes of persons whose tenure of burgage
property was thought likely to prove dangerous either by the lord or
by the burgesses. That there should be a royal control of alienation
in the ancient boroughs was in consonance with what is known of the
military purpose of the borough. At Lincoln, for instance, it was
asserted in 1086 (11. p. 61) that no land could be given * outside ' the
borough without the King's consent. The abbot of Peterborough had
obtained a certain piece of land in Lincoln, and the burgesses entered
their protest. At Lincoln there could be alienation of land between
burgesses or in-dwellers, but no alienation such as would damage the
community and therefore also the King's right. Such a restriction,
vague in kind, seems to have been for a time the usual feudal restric-
tion on alienation in England. As the military importance of the
boroughs diminished and their commercial importance increased,
freedom of alienation was encouraged by the lords. The land of
purchase, sometimes the whole burgage, could be given, sold, or gaged
without restriction ; or there might be rules forbidding alienation
to a house of religion ^ (Thomastown, II. p. 93), or subjecting such
alienation to the lord's Hcense (Chard, p. 93), or forbidding ahena-
tion to Jews (Chard), to priests, religious or * foreigners ' (God-
manchester, p. 97).

At Thomastown the alienation was required to be made in such a -
way as not to injure the 'vicini' (p. 92). This rule may either
indicate a neighbour's retrait, a custom known on the Continent,

in some parts of Europe : for instance, et burgo quatuor quietus recedat.'

Finland, L.Q.B. xx. p. 383 ; Monte- The payment to the lord, reeve, and

negro, H.E.L. ii. 311. Post, Bausteine, borough seems to be regarded as a

ii. 207, on ' retrait ' by the head of a general discharge of debts. The Leeds

tribe with division among the members charter (1208), like its model Pontefract

of the tribe. (1194), excepted men of religion ; and

^ The Okehampton charter, c. 11 the fact that, while Kirkstall was en-

(before 1162), should have been cited with dowed with lands round Leeds, it re-

those in II. p. 91. It runs, ' Si burgensis ceived no grant of lands in Leeds, is

velit recedere vendat burgagium si vult taken to show that the prohibition was

cuicunque voluerit, exceptis domibus older than the charter. Coucher Book

religiosis, et ad quietandum debita, of KirlsfaU, p. ix.
dando domino xii.d. et preposito quatuor

xcii INTRODUCTION

or may have a more general application, showing that the community
could prevent alienations made counter to the general interest : for
instance, aHenation in mortmain. Eventually the giving of license
to grant in mortmain was treated as a right of the city court in
London (by royal charter of 1327) and elsewhere. In this matter the
community may be seen trying to assert that the burgages, &c., were
holden 'of it ' as feudal lord.

Subinfeudation.— The borough charters assume generally that the
alienation is made by way of substitution, not subinfeudation, and
that the buyer would be charged with the renders due from the seller.
The question of subinfeudation is discussed only in the Northampton
custumal (about 1190), and the circumstances considered are obscurely
expressed (II. p. 63).. The meaning seems to be that if the man who
is about to make a feoffment of land of inheritance in his necessity,
and can find a tenant who offers a rent in addition to the payment of
the lord's service, the option of taking the land at that rent is the
next heir's. The case treated by Magna Carta 1217, c. 39, the
alienating of land in such a way that the residue will not suffice to
render the lord's service, is not often included,^ nor the possibiUty that
the donor's heir might make such an excessive gift void. A complicated
case of a feoffment to a religious house, the feoffor being re-enfeoffed as
tenant of that house, is discussed in the Dublin custumal (II. p. 203),
but the feoffment is not treated as if it came under Magna Carta
1217, c. 43.

Devise of Land. — Like the 'retrait,' the burgess's freedom to devise
land, subject to certain restrictions, must be regarded, not as a
characteristic burghal reform, but as a retention of an old principle,
generally accepted at one time, from which the common law came to
deviate. The last will was the outcome of privilege, and as privilege
the postobit and testamentary gift of land was accepted before and
after the Conquest.^ The land of purchase was the subject of bequest
rather than the land of inheritance ; bookland rather than folkland ;
the * terra testamentalis,' * terra libera,' ^ rather than the heritage,
though by high privilege this also might be granted.^

^ There was a clause in a Peter- 142, also forbade alienation to religion

borough charter of either 1214-22 or in injury of the royal service.
1262-74,which runs ' quod non liceat eis ~ See below, p. cxxxviii., on the

dare vel vendere vel aliquid inde ' probate ' of the borough court.
alienare vel ahquid inde facere per quod ^ Domesday Boole and Beyond, pp.

de predictis redditibus et serviciis et 154, note (called also 'terra hereditaria'),

consuetudinibus in aliquo perdentes 242, 297.

simus.' Liber Niger, f. 179. John's ^ Cf. Ealdorman Alfred's will,

charter to Shrewsbury, Bot. Chart, p.

ALIENATION AND INHERITANCE Xcili

When the lords created boroughs after the Conquest, they found it
necessary in many cases to grant liberty to make wills, liberty to give
or sell the lands of purchase, sometimes expressly to bequeath the
lands of purchase, that their burgesses might have the liberties which
were accorded elsewhere to burgesses, and so be encouraged to build
burgages. By Glanvill's time it was becoming a general principle
that, while a man in full possession of his senses might ahenate at
least his lands of purchase from his heir, the dying man's gift of land,
unless it had the consent of the heir, would not be deemed binding.
The objection to the deathbed gift appears to be at that time com-
paratively modern, and due to a fear of ecclesiastical pressure brought
to bear upon a man at a time when * memory and reason ' desert him.
Ultimately the common law rejected both the deathbed gift and all
postobit gifts. But the boroughs, armed Hke London with charters
containing very general clauses, granting that lands in the borough
should be subject to the custom of the borough, continued to deal with
land in the old way, merely converting the postobit gift into a devise
which had truly testamentary features. Only the Scottish burghs
(like the Scottish law generally till 34-5 Victoria c. 81) rejected the
deathbed disposition of heritage (II. p. 94).^ The danger from religion,
where it was felt in the English and Irish boroughs, was met by a
prohibition of bequest in mortmain.

The burgesses, having retained the right to bequeath the purchased
land like a chattel, when such bequest was unlawful to all other men,
at a later time extended their liberty to include devise of inherited
land. At Bury in 1327 half of the inherited and all the purchased
land could be bequeathed, and in several cases an extension of the
narrower to the larger liberty can be traced, for instance in London.
Such a change was in accordance with the borough doctrine which
treated land as a chattel, which sought to keep in the borough court a
control of wills devising land, and inclined to cancel the old rules
subjecting land of purchase and land of inheritance to different treat-
ment.^ One result of the difference between the borough and the country
in their treatment of the devise of land was that the writ of mort
d'ancestor was excluded from some of the boroughs.

No borough franchise was more highly valued in the fourteenth

^ The Lombard law early opposed ^ In the Norman boroughs the devise

the deathbed gift. Brunner, ii. 373. of land eventually died out, except in a

The custom of Freiburg-im-Breisgau, few cases, for instance at IBreteuil and

c. 52, forbade a deathbed grant of more Verneuil, G^nestal, Boiirgage, pp. 172,

than 5s. unless with the heir's ' hand ' or 270.
consent. Cf. Maurer, i. 391.

xciv INTRODUCTION

century than this freedom of devise. It was a common cause of the
entry of claim, and the retention of old claim, to the dignity of a
borough. Some ancient boroughs found it desirable to secure the
right by charter, no doubt only to confirm their usage. ^ The statutes
of 32 & 34 Henry VIII. deprived the borough custom of much of its
value, the general law, so far as land held in socage was concerned,
being brought into line with borough custom by his legislation.

Forisfamiliation. — Besides the control exercised by the heir or heirs
through the right of first purchase, to prevent the selling of inherited
land away from the kin, or at least from the heir apparent, there was
restraint upon gifts of land though made among the kin, whether
made * inter vivos ' or as postobit gifts. At a time when hereditary
land could not be alienated at all without the kin's consent, the first
inroad made in favour of free alienation was one which permitted the
giving to a daughter of a marriage portion charged on the inheritance
(II. p. 92), or which permitted the advancement or forisfamihation of
descendants. The giving of a marriage portion usually forisfamiliated
the daughter ; ^ she had no further claim on the inheritance of father
or mother (II. p. 133). The inheritance in borough being partible in
many cases, with or without a birthright in the chief messuage,
custom prescribed equality in the forisfamiliation. In the Scottish
burghs the father could endow his children of hereditary land in his
lifetime, whilst they were minors, and his heir could not prevent it,
but that he could favour one of the children more than another is not
made clear. In many Continental laws equal distribution among the
children was required.^ At Dublin (where there was no * retrait ') a
father was forbidden to disinherit his son in anger by alienating the
land of inheritance.^ The child had to come forward before the matter
was settled (* avaunt qe la cose soit bargoigne ') and forbid the sale. If
anyone bought after that, he lost his money. Here, too, no child
could be enfeoffed of the inheritance while under age, and devise of
land on the deathbed was suffered only if it were made to heirs and
' amis,' perhaps only to kinsmen, not to houses of rehgion, which were
exempt from the citizen's duties to the community.

hiheritance. — The rules of inheritance in the boroughs, as is well

^ Cambridge in 1319. Cooper, in the will (except endowed daughters)

Annals^ 1. 74. or definitely disinherited for reasons.

^ Cf. Maine, Early Law and Cus- Briinneck, p. 93.
tom^ p. 110. '^ Beaumanoir to the same effect is

=* Bordeaux, c. 59, 145. Amalfi in cited in Viollet, Droit Civil, p. 871.

Briinneck, p. 54. Some Sicilian customs Proverbs against exheredation are given

required that all the children be named in Chaisemartin, p. 436.

ALIENATION AND INHERITANCE XCV

known, were not uniform. Partibility among male descendants of equal
degree was probably very general, and cases of equal division among
the sons and unmarried daughters were not rare.^ This partibility
divides the burgage very sharply from the military holding. The
admission of the sisters to share with the brothers will account for
much that is peculiar in the borough laws which regulated the
husband and wife's relations to the land : for the wife brought with
her as inheritance sometimes a portion of a burgage.

Where there was partibility, the fall of the parcels was in some
places determined by lot (I. p. 267). '-^ Sometimes the eldest coparcener
had the first choice among the parcels, the *jus optionis' or
' Klirrecht ' which is met with on the Continent,^ giving sometimes a
choice to the youngest.^

The right of the youngest son to the whole paternal inheritance
of land prevailed in some boroughs. Although perhaps originally a
succession rather to the paternal dwelling than to the whole landed
inheritance, traces of this distinction are almost obliterated.^ Ultimo-
geniture was not so common as to deserve to be regarded as a borough
characteristic. Nathaniel Bacon wrote of borough English as * catcht
I know not how — brought in by some cynicall odde Angle that meant
to crosse the world and yet in a way not contrary to all reason ' ; but
though at Nottingham it was a characteristic of the English borough
as contrasted with the French,^ it was known also in places where the
influence of the * odd Angle ' cannot be suspected.^ In Dublin (II.
p. 130) the inheritance of the youngest son was explained to mean the
youngest son of the latest wife. Among grandchildren a Godmanchester
custom brings out the point that a male heir of an elder son was
preferred to the female heir of the younger son.

^ Glanvill, vii. 3, notices this as a Anjou gave the choice to the youngest,

custom of the cities. Also in Normandy, 'Der Altere theilet, der Jtingere kieset,'

Genestal, Bourgage, ip^. 4:1, 71, 171; according to one proverb (Chaisemartin).
Gruchy, Cout. de Nor. p. 97 ; Brissaud, ^ II. p. 130. Leicester couples the

p. 1823, note 2. There was at Mont- paternal inheritance and dwelling as at

pellier, c. 12 (1204), equal division among one time the youngest son's. By men-

the unadvanced and unmarried brothers tioning both, the possibility of a distinc-

and sisters. For the German boroughs tion is recognised.

see Maurer, i. 427-8. Jenks, Laiv and ^ East and West Nottingham are

Politics, pp. 229, 232, treats of the said to have been regarded as Enghsh

Lombard law of equal division among and French so late as 1713. Elton,

the sons and daughters. Tenures of Kent, p. 165, note.

- Cf. Amira, i. 601 ; Briinneck, p. ^ Brittany, Wales, Cornwall, Artois,

101. Picardy, &c. Brissaud, p. 1535, and

^ See Gruchy, Anc. Cout. de Nor- other references in Post, Bausteine, ii.

mandie, p. 82. 178.

* Brunneck, p. 100. The custom of

XCvi INTRODUCTION

A right of the eldest son to inherit the chief messuage was
perhaps no less ancient and usual in the boroughs. It was the rule of
the Leges Henrici, 70. 21 ; according to Glanvill (vii. 3) a socage rule
— but the elder had to make the shares of the other parceners of equal
value, and this was the rule of the Coutume de Normandie.^

When there were children by two wives, the Northampton and the
Scottish burgh law (II. p. 134) made the children of the first wife
heirs to all the lands held in the first wife's time ; the children of the
second wife inherited the lands purchased or inherited in the second
wife's time. But the father's powers of devise over the purchased
lands broke the severity of the rule, which is of interest in the dis-
cussion of the germs of the * marital community.' ^ At Dublin on
the contrary, as has been noted above, where the rule of ultimogeniture
held (II. p. 130), the youngest son of the last wife was heir.

The borough customs treat but scantily of the subject of the
inheritance of land, and confine their rules to the inheritance of
descendants for the most part. The complicated problems which
might arise out of questions of the inheritance of remoter kindred
are left almost untouched. There is little on the subject of the differ-
ences of rule for the succession of the father's and the mother's kin,
though the doctrine ' paterna paternis, materna maternis ' is percep-
tible in the wardship rules. The rules touching the inheritance of
the wife's kindred will be treated below (p. cv). At Winchester at
the end of the thirteenth century, kinship was traced in such a way
that uncle and nephew stood * en owel genouif ' in respect of inherit-
ance, giving evidence of the retention here of the old Germanic scheme
of consanguinity (I. p. 274).^

Bequest of Chattels. — Glanvill (vii. 5) gave the testator, who was
free from debt, power to bequeath a third of his chattels by will upon
his deathbed, subject only to a certain recognition of the lord and
the Church. A third of the chattels belonged to the widow ; but if
there were no surviving wife, the testator could dispose of half the
chattels. The heir received the other half, if there were no widow,
or the third if she survived. The origin of the testator's share is,
it is believed, traceable to the ' dead's part ' in the goods that were
buried with him for use in a future life.^ That the division in thirds
was known to the Normans cannot be doubted ; it is established on

^ Gruchy, pp. 81-2. ^ Brunner on the Todtentheil in

^ Cf. Brissaud, p. 1687. ZscJi. Savigny Stift. Germ. Ahth. xix.

* Cf. Amira in Paul's Grundriss, iii, 108.
156 (1900).

ALIENATION AND INHERITANCE XCvii

evidence more complete than that which vo aches for its existence
among the Anglo-Saxons ; the probability, however, is that it was a
custom common to both races. ^

Glanvill's reservation of a third of the chattels for the heir,
which gave the eldest son in addition to the land also a third of the
chattels, was not maintained as part of the common law, and has left
no trace on our custumals.

In Bracton's day, after the debts were deducted, the testator had
a third to bequeath if he left wife and children : the wife could claim
a third and the children a third. If the dead man died intestate,
his third was his ' dead's part,' and over this share the Church made
good its control. Bracton ascribes to the Londoners a custom which
gave them the power to dispose of the whole of the chattels by will,
and he argues enthusiastically in favour of this freedom, which was
eventually to become the freedom of those who were not Londoners.
London, till 1724,^ retained as custom the law of legitim which in
Bracton's day was the general law. How the change came about is
not known. That London was using the system of legitim in 1419,
at least in the case of intestacy, is clear (II. p. 136). But the earlier
texts, which deal with the subject solely from the point of view of
the widow's right, are somewhat obscure, and show that it was not
perfectly clear whether a widow could have both dower and a share in
legitim. In London in 1246 a widow (11. p. 121) who had been
dowered with a certain specified dower, seemingly a dower of money
or chattels, was declared unable to take more from the husband's
chattels, except under his will. The widow in question had claimed a
third of the chattels, whether as dower or as her * reasonable part '
in legitim is not explained. A dower of the third part of the lands,
and if there were no lands, then of the chattels, may have been
known in London. The rule may mean that the widow could take a
third either as * dos numerata ' or as ' reasonable part.' ^ Where the

^ Dr.Brunner has abundantly proved acquired (' de omnicollaboracione '), be-

tlie custom for Normandy. He consi- sides her clothes and bed.
dcrs the Anglo-Saxon evidence insuffi- ^ g^^t. 11 Geo. I. c. 18, sec. 17,

cient. Besides the story in Beda, Hist. quoted H.E.L. ii. 349.
Eccles. V. 12, there is the law of Ine, 57, ^ Beaumanoir, § 440, shows that in

that the widow has a third [of the some parts of France it was at the wife's

chattels], and the law of 2 Cnut 70. choice whether she would take her

1, which refers to the mce^ or measure 'part ' (in which case she contributed to

which widow, children, and kin are to the payment of the husband's debts) or

have in the intestate's chattels, without her dower of the movables (in which

defining the shares. The Leges Henrici case she made no contribution to the

70. 22, following the Lex Eibuaria, gave debts). Another possible arrangement

the widow a third of the chattels jointly was that of the THa Ancienne Coutume
VOL. II. f

XCviii INTKODUCTION

distinction between land and chattels was obliterated, as in the
boroughs, this rule might appear reasonable. The singular London
rule of 1356 (II. p. 137) which gave a childless second wife a moiety of
the chattels of her husband, though there were children by the first
wife then living, might suggest that the marital community was strong
here, but it is more likely that the statement of the rule is imperfect.
Another example showing how the widow's right might exceed
the usual legitim share is afforded by the Godmanchester rule
{II. p. 137) in which no dead's part is named as belonging to the
intestate beyond the sum deducted to pay his debts. The residue
was divided between the widow and the children, including the
unmarried daughters and the sons married or unmarried. The cus-
tumal next treats of the case in which no widow survived, and in
which a testator had made some bequest of chattels not equal to his
full share. Seemingly the residue was then divided, so that the
executors disposed of a third as they saw fit (the dead's part), while
two-thirds (instead of a half) went to the sons and unmarried daughters,
the debts and personal expenses having been deducted from the total.
Here the children's part exceeds the usual share in legitim.

The custom of Cambridge was declared in 1299 in this form :
* Quod mulieres post mortem virorum suorum habere debent medie-
tatem omnium catallorum eorundem,' ^ but in this text the share of
the children is not discussed. It is unfortunate that we have no
particulars of this custom, which savours strongly of the ' marital
community.'

Another curious rule on the subject of the widow's right deserves
some attention, though it is too imperfectly represented by the text
to tell all that we may wish. At Dunstable in 1220 (II. p. 138) we
find the children's right diminished to the profit of the widow.
She could take the household utensils, seemingly all the household
movables except the heirlooms. She could remove the things that
were not heirlooms, when she quitted her free-bench, presumably to
remarry. She could give or bequeath these chattels apparently even
while she was enjoying free-bench. It is not made clear whether
f^ heir was a child of the widow or not, or whether there was any

deNormandie, 5, § 4, 5 (ed. Tardif), spent on the purchase of lands, which

which allowed the widow, if there were she could not alienate from the heir, for

no ' hereditas,' to receive a dower ' de she had in them a dower right only,

communi catallo ' and spend it. But if i Assize EoU, 27 Ed. I., No. 96, m.

she claimed her legitim ' part ' of the 27, dorse. Cf. Cooper, Annals of Cam-

chattels and dower of the chattels as bridge, i. 68.
well, the dower of the chattels was to be

ALIENATION AND INHERITANCE Xcix

dead's part or testator's part in the chattels. The statement with
regard to the freedom of alienation seems to make it certain that we
have not here a rule analogous to the Germanic rules on the subject
of the ' Gerade ' or outfit in clothes and utensils, &c., which were often
the widow's right, because these were not alienable, but passed like
heirlooms in due course to her female heirs. It would be tempting
to see the widow here as ' heir ' to the chattels which were not
attached to the landed inheritance, but no conclusion can be based
on so partial a statement of the facts as that which the text vouch-
safes.

The custumals contain no rules on the subject of the widow's
* paraphernalia,' no rules on the London widow's bedroom furniture
and apparel such as appear in later accounts of the London custom :
an omission due to the fact that the Church had control of this
matter in England. The Continental boroughs had much to say
on the subject of the inheritance of the chattels.^

The custumals afford as a rule no detail to explain the precise
working of the rule of legitim in points of difficulty connected with
the children's share. Contrary to the later law of English legitim
and also of Scotch legitim (where, how^ever, the law of heirship
movables was general after 1474), the heir of the landed inheritance
could claim his share with the other children in the bairns' part in
the Scottish boroughs (II. p. 136) provided he had not been advanced.
The daughters who were married did not share, being advanced by
their marriage portions.

Heirlooms. — The heir's claim on the chattels in some cases ex-
tended beyond the share of the bairns' part ; there went with the
inheritance of the chief messuage certain heirlooms, over which there
was no right of bequest. The heirlooms that generally passed to
the heir with the chief messuage ^ were the father's seal, arms and
armour, house fixtures, best domestic utensils and agricultural imple-
ments ; sometimes his horse, and, in a district with water carriage,
perhaps his boat. The heirlooms were not only not bequeathable,
they were also inalienable. The Archinfield rule forbade that they
should be either sold or gaged ; the Scotch boroughs admitted their
alienability only in cases of urgent necessity, and the necessity was
to be publicly proved by witness. Godmanchester gave a curious

' Maurcr, i. 391 sqq., 429 sqq. ; ^ At Valenciennes the youngest son

Keutgen, Urkunderij Index, s. v. Her- took the heirlooms. Bauchond, pp. 79,

wede, Gerade ; also p. 151; Boisin, LiZZe, 180. See also Maine, Early Hist, of

pp. 154-5. Insts. p. 238, on Welsh heirlooms.

f 2

C INTRODUCTION

rule which allowed the wife's dower (' dos numerata ') to be made up
out of the heirlooms, provided she deposited their value as a guarantee
against damage (II. p. 141).^

The English custumals confirm the view ^ that in the heirlooms
we have the remnant of the ancient idea that with the hereditary
property goes the duty of blood vengeance, and ' mund ' over the
dead man's dependents. This accounts for the passing of the arms
and armour with the chief messuage. Later on in the towns the
arms and armour must stay with the burgage for the defence of the
town. Before the will came into use, the heir or heirs were called to
the whole ' Hauswesen ' of the dead man ; and when Christianity
■brought with it the will, it was so restricted as to prevent the bequest
of the chattels needful for the conduct of the house. What was
allowed to the heir was probably not at first the ' best ' of each kind
of chattel necessary to housekeeping, but one of his choice. The
reservation of fixtures as heirlooms {e.g. the boiler), to prevent injury
to the house, was a reasonable arrangement to make.

5. Husband i^ND Wife.

Nathaniel Bacon, writing on the Government of England, observed
that the Norman husbands were * as well owners of the wife's per-
sonal estates as of their persons,' while the Saxon wives before them
were in divers regards more absolute and independent. ' I say not
more happy, because they were never one with their husbands.' The
borough custumals are unwilling to yield to us material for a well-
rounded and artistic sentence that shall summarise the facts thus
neatly. We shall find instead that the borough customs pursue an
erratic, unsteady course, and the variations can be ascribed to no
difference of race, or even to differences of principle carefully thought
out by the legislators. Much may have turned on the character and
personal experience of the officer of the court who had most legal
knowledge at the time when borough customs had to be interpreted
in a case of practical difficulty. Matters left originally very vague
were decided in a definite way as occasion arose, and the persons
affected could have no say in the matter. The interest of the

^ Scotland has contributed largely of 1474 (c. 54). The rule was abolished

to the legal definition of heirlooms, by 31-2 Vict. c. 101, s. 160.
for the heirship movables of borough - Heusler, Instii. ii. 617 sqg^.

law were given to all heirs by the Act

HUS13AND AND WIFE ci

customs regalating the relations of husband and wife in the control
of land and goods lies not in its revelation of anything approaching
to system, but in the evidence which it offers of the long persistence
of the old family organisation of the household, and of the bur-
gesses' difficulties in fitting this on to the borough arrangements for
freedom of alienation and devise. As brief summary is impossible,
our task must be to classify : we will take first the limits to the
husband's power to alienate lands and chattels ; second, the wife's
will, and devise from husband to wife, and vice versa ; and third, the
effect of the dissolution of the marriage on the ownership of the
lands and chattels.

Hashand and Wife's Eights in Land. — With regard to the husband's
power, as administrator of the marital estate, to alienate the land
which came to either party or both parties, before or after the mar-
riage, the borough customs diverge from the common law in two
opposite directions. Where there was a tendency to maintain the
rights of the kin, the wife's inheritance was prevented from falling
under the husband's control. Where the kin-right was weak, and the
mercantile inclination to freedom of alienation strong, the husband's
control of the whole estate tended to a completeness unknown even
to the later English common law. The customs vary considerably on
the subject of the alienation of lands of the wife's inheritance, pur-
chase, or dower, on the requisition of proof of urgent necessity, and the
method of proof, and on the necessity for the wife's consent. The
proof of urgent necessity, if it had once been required by the King's
justices,^ ceased to be required by them ; in the royal courts all that
was needed was a separate examination of the wife, to secure her
consent to alienations in which she was concerned, under conditions
that would make it impossible for her afterwards to protest that she
acted under compulsion. Some boroughs adhered to the need for proof
of urgent necessity. Northampton required that all the other land be
sold before the husband and wife could sell the marriage portion of
land, guarding it only more carefully than the lands of the husband's
inheritance; over such lands the heirs had a right of first
purchase. With regard also to lands held by the wife in fee simple,
we find some rules which are not like the common law either of the
beginning or the end of the thirteenth century. At the beginning of
the century alienation of the wife's land, if made without her consent,
was not valid, but with her consent the alienation was binding. At the
end of the century the husband's alienation of the wife's land held

' H.E.L. ii. 409.

cii INTRODUCTION

good so long as the marriage lasted, though made without her
consent. She could recover only at the dissolution of the marriage.
The custom of Bury St. Edmund's in 1327 went beyond these
limits of the common law (II. p. 104), by giving the husband an
absolute control of the wife's inherited land ; he needed no consent
to alienate her lands, or his own, so as to bar her dower claim.^
At Lincoln about 1240 a man could bar his wife's claim to dower
if he proved urgent necessity for sale : but if he let the land for term
of years or gaged it, she could claim dower (II. p. 103). Br acton,
who names this Lincoln custom, at the same time names a Lincoln
custom still more liberal to the husband (11. p. 128), namely that
the wife could claim dower only in land that the husband died seised of,
and not, as was the rule of the common law, in land of which
the husband was seised in fee at any time during the marriage.
Ipswich had the same rule as Lincoln, at least as regards the right
of second wives (11. pp. 123-4), a rule which perhaps held good in all
cases.

Another plan prevailed at Nottingham (II. p. 105), where a man
could alienate and bar dower without consent and without proof of
urgent necessity, if he could show that he and his wife were living
together, eating from the same dish. Such evidence would be taken
as proof that the proceeds of the sale were consumed jointly in the
needs of the common household. At Dublin a husband could alie-
nate land of his wife's right (the nature of the right is obscure)
without her consent, if he could show that the price which he
received went towards her sustenance as well as his (11. p. 116). At
Godmanchester (II. p. 104) the husband could alienate lands which
he had * acquired with his wife,' without his wife's leave and against
her will, and on lands which he alienated she could claim no dower.
Here again the nature of the wife's right is left to conjecture. If
the lands were lands conveyed jointly to the husband and wife and
their heirs, a common arrangement, the husband at Godmanchester
had a fuller right than under the common law, or under the London
law, which denied to the husband the right to deal freely with land
held in fee under these conditions.^

When the wife's consent to the ahenation of land by the husband
was necessary to bar her from claiming dower or other rights on the

^ See H.E.L. ii. 407. In 1220 Plea Bolls of the Exchequer of the

it was decided that a wife's land at Jeivs, p. 26.

Bromley, Kent, which was of her in- ^ h,e.L. ii. 431-2, and below, II.

heritance, could not be sold or given in p. 106.
gage by her husband. Eigg, Cal of the

HUSBAND AND WIFE ciii

husband's death, this consent was obtained by a separate examina-
tion before the borough officers. The procedure was not in all cases
precisely that of the fine. In some places a mere deed enrolled
sufficed instead of the fictitious litigation of the fine. The separate
examination of the wife could take place in her own home if she
was unable to attend the court (II. p. 118).^ The wife's kin could
presumably exercise a right of first purchase over the land of her
inheritance, but there is no trace of the necessity for consent from
her kin, which was required by some early Germanic codes.

The Chattels.— The Galway widow's claim (II. p. 138, of date 1559),
to choose a third of the movables that were her husband's at the
marriage, stands alone : if it had been established it might have pre-
vented the husband from permanently alienating the stock of goods
with which the married couple set up house, at least without the wife's
consent. The widow's claim to a third part of the chattels in legitim
did not enable her to revoke the alienation of chattels made without
her consent, as she could revoke the alienation of lands on which
dower was charged ; unless indeed she had a * dos numerata ' charged
on a third of the chattels at the marriage, which was not impossible.
It would not be surprising to find that the boroughs persisted in
retaining a custom tallying with that of the Lex Eibuaria, 37. 1, 3,
which the writer of the Leges Henrici Primi, 70. 22, incorporated into
bis text as representing the law of his time. This law gave the widow
her marriage portion and dower, and the third part ' de omni
collaboracione ' besides her clothes and bed. But she could claim
nothing of what had been spent in alms or for the common needs of
herself and her husband. Nevertheless the borough customs give us
nothing quite so definite as this. The widow's right to a * legitim '
share in full ownership is the clearest proof which we have to offer
that, though her movable property was at the marriage absorbed into
her husband's so as to form a whole, that whole was not originally
regarded as absolutely her husband's, in so far as it was not open
to him to deal with all of it freely by will. The Leges Henrici do
not tell us what was the wife's right in the ' collaboracio,' and her
clothes and bed, as regards her right to dispose of them by will during
her husband's lifetime. Glanvill, vii. 5, laid it down that the wife could
make a will ' de rebus viri sui ' only with her husband's consent, but
that it was pious and proper to grant consent to her bequest of the
third part. Bracton, f. 60 6, more hesitating, observed that this was
sometimes received as law. We may perhaps infer, from the borough
^ Cf. Briinneck, Darstellung, p. 266.

civ INTRODUCTION

rules which forbade the wife to bequeath 'her husband's goods'
without his consent, that in time past she had bequeathed her dead's
part without consent (II. p. 111). The Bristol rule of about 1240
forbade the wife to bequeath her ' husband's goods ' without his consent,
but she could allot a special sum to funeral expenses. The term

* husband's goods ' probably was intended to make a bequest of the

* reasonable part ' of the common goods impossible without consent,
while perhaps leaving the wife a power to bequeath, without the hus-
band's consent, the clothes and jewels and personal properties which
Bracton was inclined to regard as more the wife's own than the other
goods. But a sum for funeral expenses might well include alms and
oblations for the soul's redemption, and run up the part bequeathed
for this purpose to a full ' soul's part,' a third of the total of the
chattels, even a half if there were no children. The Church, while
regarding man and wife as one flesh, recognised their duality of soul,
and therefore favoured the wife's will. One soul- shot would not cover
the expenses of a flesh that was two in one (II. p. 211).^

The Wife's Devise. — It is the rules on the wife's devise of lands
that form a special feature of borough custom at a time when devise
of land was possible only in the boroughs. There is a great variety of
rule. The earliest, that of London, 1256, forbade devise by the
wife; any alienation made by her had to be made by a formal
surrender in the busting by herself and her husband. Ipswich, soon
after, forbade devise by the wife, even though her husband con-
sented, if the devise were to the disherison of her heirs. London, in
the report on its customs of date 1419 (II. p. Ill), forbade the
wife's devise though the husband consented. But other customs
supported the wife's devise (including, as we shall see below, the
wife's devise to her husband), thus running counter to the rules
which made the wife's deed invalid because she was * sub virga ' and
not * sui juris.' Lincoln in the fifteenth century allowed the wife's
devise, though made without the husband's consent. Canterbury, in
the sixteenth century, gave to the wife full power to devise her free
tenement, whether of inheritance or purchase, and to the husband a
right to devise his land (II. p. 111). Norwich (1306-11) gave the
childless wife power to devise lands of her purchase before marriage.
If the husband enjoyed curtesy by reason of the birth of issue, she
could bequeath the reversion. The curious text of the Godmanchester

* Archbishop Simon Langham conditions, but by way of concession, not
(Lyndewode, f. 19) excused the payment as the result of a principle,
of the wife's mortuary under certain

HUSBAND AND WIFE CV

custumal (II. p. 109), though not as clearly worded as could be wished,
offers a remarkable variant on the borough rules on the subject of the
wife's devise of lands of purchase. According to this rule of 1324 the
wife who died childless, though unable to devise her heritage, inasmuch
as no devise of heritage was allowed in this borough, could devise a
moiety of the lands of her purchase. It is doubtful what lands are
included as * of her purchase,' whether they are lands of her
' conquest ' before or after marriage, whether indeed we may not in-
clude lands of the husband's and wife's joint ' purchase.' It is twice
assumed to be a likely contingency that in Godmanchester the wife
will have half the chief messuage by * purchase ' (II. pp. 109, 114),
and always without explanation of the point whether * purchase ' pre-
ceded or followed the marriage. Dying childless, she could devise
the moiety of lands * of her purchase,' including half the chief
messuage. The husband enjoyed for life the remaining moiety, with
half her inherited lands (the other half of the inherited land going to
her kindred) ; on his death the husband's moiety of the wife's pur-
chase and inheritance passed to her next of blood. He enjoyed for
life also such part of the moiety of her purchased land as she did
not bequeath, and on his death her next of blood inherited. No
mention is made of the need for the husband's consent to the will.
On the other hand, the Godmanchester rule gives no indication that
the surviving wife had a moiety of the lands of the conquest of either
or both parties in full ownership, and on this ground we must reject
the idea that there was here any approximation to that doctrine of
the *conquets en bourgage ' ^ which, for a short transition period, was
the doctrine of the boroughs in Normandy, while passing from the
' gain de survie ' to a dotal system. The system of community in
the ' conquets en bourgage ' gave the surviving wife a moiety in full
ownership, and if she died first, her right profited her heirs.

Devise, from Husband to Wife. — Many borough rules made devise
from husband to wife lawful, and even devise from wife to husband.^
The earlier rules restricted such devise to the land of purchase, in-
herited land being in some cases not devisable at all. The existence

^ Genestal, Tenure en Bourgage, was entered in 1291-2 in the busting

pp. 40, 80, 177. against a will made by a wife, of wbich

^ So at Canterbury (II. p. 120). In her second husband was executor, on

Co. Lit. p. Ill b, Hale's note 140, 5 Com. the ground that a deed made by a wife in

Dig. 14, is vouched as asserting, but her husband's life was invalid. Sharpe,

without citing authority, that by the Cal. of Wills, i. 105. The Etahs. de

custom of London the wife might devise St. Louis, i. 118, allowed the wife to give

to her husband. The authority has not to her husband only at death,
been found for London. Indeed, protest

cvi INTRODUCTION

of the devise from husband to wife was noted as a borough charac
teristic by Littleton.^ After the statutes of 32 and 34 Henry YIII.
made land devisable out of borough, this form of devise continued to
be pecuHar to borough custom. ^ London and Torksey limited the
husband's right of devise to his wife to a life interest only, but a free
devise is probably the earlier rule.^ The frequency with which
London husbands attempted to devise lands to their wives in fee in the
thirteenth century ^ suggests that this had once been allowed.

The custom of York, 1226-7, allowed gift of land from the husband
to the wife, apparently during life and probably then by devise. In the
Scottish burghs also (II. p. 122) the husband could give lands of his
purchase to his wife. The subject of the gift of chattels is not dis-
cussed in the custumals.

Dissolution of the Marriage. — The borough custumals show great
variety of rule in treating of the survivor's right in the estate of the
dead spouse. It was conceivable that the boroughs might have pro-
duced a rule making the survivor an ' heir ' of the lands of the dead.
This is met with on the Continent, and it is believed that it may have
taken its rise in the boroughs.^ That the boroughs should shape
their own law of devise and inheritance is not surprising, seeing that
the burgage was in its very origin in the newly colonised boroughs
land * of purchase,' and unencumbered by the absolute rules of the
folk-law. Thus the French burgesses of Jerusalem agreed * nus horn
n'est si dreit heir au mort come est sa feme espouse.' The custom
of Freiburg-im-Breisgau, c. 10, said * omnis mulier [in successione
hereditatis] viro parificabitur et econtra,' and later, c. 42, ' et vir
mulieris erit heres et econtra.' These explicit statements are not
made in our custumals,^ w^hich tend to accept an arrangement for
the continuance of the household by the survivor in the lands and
tenements, a continuance which did not affect the ultimate claims of
the heirs of the wife's or of the husband's side. There was a disposi-
tion to regard as the normal case the case in which the survivor had
young children to maintain. So long as the rules for the protection

^ Co. Lit. 112 a. ^ Lit. sec. 168. was not restricted to the heir.

^ A will in the Goxhill Cartulary * Sharpe's Cal. of Wills, i., is full of

shows a Lincoln burgess, c. 1270, de- such grants. The widows in such cases

vising to his wife all his land with all took a life estate and did not lose the

the utensils, to give, sell, or bequeath whole.

without any claim from his heirs or ^ Brissaud, p. 1685, note ; cf. Stobbe,

kinsmen (' vel parentibus ') or from any PrivatrecJit, iv. 243, and H.E.L. ii. 429,

man. The mention of the kinsmen is note.

interesting in connection with the ' re- ^ In the manor of Taunton Dean the

trait lignager,' showing that the right wife was the husband's hen-.

HUSBAND AND WIFE Cvii

of the inherited lands from alienation were in working order, the
rights of the heirs were guarded : and this secured the possibility of a
continued ill-defined ' community ' between the survivor and the
heirs. Such early rules as those which protected the rights of the
* widow and kindred ' from the felon's forfeiture sufficed for borough
needs in their early stages. The right of the surviving spouse to
continue the headship of the household was likely to be brought to a
close on second marriage, but even in the event of second marriage
the disposition to prevent a division of the household stock might lead
to the keeping of the children of several marriages in community.^
Signs of this are found in the lifelong * curtesy of England,' and a
lifelong free-bench for the widow is not unknown.^

The Widower.— ^ovdQ boroughs accepted the full curtesy of Eng-
land, admitting the husband who survived to a life interest in the
wife's land if a living child was born of the marriage. At Worcester,
on the contrary, the ' curtesy ' extended only to the limits accepted in
Normandy: that is, to the period of the husband's widowerhood. The
curtesy was not that * of England,' for it ended with re-marriage, at
least if there were an heir born of the preceding marriage who was of
age to inherit.

The curtesy of England itself, though prolonged for life, is
thought to have been the outcome of a condition of affairs in which
the husband was expected to live with the unemancipated children
and remain head of the household and in exercise of the * mund.'
This idea seems to be borne out by the Godmanchester rules. The
Godmanchester widower enjoyed all his wife's right, provided he
supported the children of the marriage ' until such time as they can
come to an agreement,' and if they could not come to an agreement
the children took their moiety. This right of the children to demand
a division (' Theilrecht ') in the surviving parent's lifetime finds many
analogies abroad.^ The partition was usually due to re-marriage.
At Godmanchester the children's claim to a moiety would not touch
the chief messuage, even though one half of this was of the wife's
purchase (II. p. 110). In the chief messuage the husband had a
right for life, the curtesy of England. Similarly at Dublin there
was a peculiar curtesy : the widower might continue to live in a
house which he had built on his wife's land, his wife and children

^ Huber, iv. 506. See the curious ' Schroder, D.B.G. pp. 324-6;

Gayton rule, below, II. p. 135. Viollet, Droit Civil, p. 495 ; Brissaud,

- It appears in the late Brighton p. 1526 ; Stobbe, § 248 ; Amira, i. 735 ;

custumal, II. p. 124, note 3. Balasque, Bayonne, ii. 263.

cviii INTRODUCTION

liaving died there before him. But it was necessary that this house
should remain his dwelHng- house (his 'chief messuage' in the
language of Godmanchester), otherwise he could have in it only
the * quarentine,' the term of the widow's right to inhabit the principal
house. The house would presumably pass to the wife's next of blood
if he did not inhabit it. At Colchester in 1233, the surviving husband
held the wife's marriage portion and inherited lands for life, though
no child had been born, while, in marked contrast to this, at
Northampton the childless widower had a term of thirty days only in
the marriage portion after the wife's death (II. p. 112). A claim to
the use of one half of the lands of the dead wife, while the husband
remained unmarried, was given to tenants in gavelkind under the
name of ' free-bench.' This right did not depend on the birth of issue.
Somewhat different was the Godmanchester rule, which gave to the
childless husband, who survived, a life estate in half the wife's inherited
lands, and in half the lands of her purchase, with such part of the
remaining half of her purchase as she had not devised.

The Wldoiv. — If the wife w^ere the survivor, she too enjoyed in some
•cases a right so full that it can best be explained, like the husband's
similar right, as a continuance of the household in community. Little-
ton ^ noted as characteristic of the customs of some boroughs that the
wife had for her ' dowser ' all the tenements that were her husband's, and
this rule Coke believed to be the ' free-bench,' which Bracton spoke of as
specially characteristic of the borough.^ Our texts do not show dower
of the whole to have been common, but the evidence of Littleton may
supply the truth concerning custumals which have not survived.
Our texts also do not show ' free-bench ' to have been always a liberal
form of dower. On the contrary, it is sometimes treated as alterna-
tive to dower (pp. 121-2). The term * free-bench ' was applied to a
variety of rights : it might give the widow the whole of the chief
messuage, to carry on the household, or it might give her half, as
though in dower, but with the restriction that it was lost on re-
marriage ; or it might give her only a term of residence in the chief
messuage pending the assignment of the permanent dower ; or it
might be used, as in gavelkind, to give the widow, as it also gave the
widower, while unmarried, half the land of the dead spouse. These
variations of rule seem to show that two different principles were at
work, and that in the attempt to harmonise them results were obtained
which were contrary to the spirit both of the prolonged ' community '

^ Co. Lit. sec. 166. ^ Bracton, f. 97 b.

HUSBAND AND WIFE cix

and of the definite assignment of dower in exchange for the absorption
of the wife's rights. At Ipswich we get a free-bench in the nature of a
prolonged community coupled with dower of the moiety, and can thus
see a transition stage in which the two principles were united. At
Ipswich the first wife was to have the whole of her husband's chief
messuage ' in the name of free-bench/ so long as she remained a
widow. She had also ^ dower of the moiety in the other lands. If the
husband had only the one messuage, the children were to dwell with
her in the chief messuage. Here the widow's right is represented as
not a mere * Beisitz,' not an admission of her right to dwell with the
heir in the chief messuage because there was no other, but rather
an admission of the children's claim to inhabit with her.^ That more
than mere ' Beisitz ' was the original form of the widow's right is also
indicated in the Scottish rule (p. 122), which gave her the hearth
and the inner part of the house, while the heir had the * but,' not the
' ben.' ^

The Ipswich rule is in harmony with the partibility of the
burgage inheritance which prevailed there. Where all the children
were coheirs, the retention of this full measure of right by the widow
was more easily supported than where an inheritance of eldest or
youngest son ousted the rest of the family from the chief messuage.
If, as in Scotland, she shared the chief messuage with a single heir, a
definite assignment of shares had to be made, as she w^as not con-
tinuing her headship of the household. At Salford we get yet another
variety; here the widow's free-bench was merely a 'Beisitz,' or right
to dwell with the heir during widowhood. If she quitted the
household to re-marry, it is noted that she is to receive no dower, an
indication that the ' free-bench ' had been originally conceived as a
right which made dower superfluous, but whether she might in her
widowhood have chosen dower in preference is not stated. This
omission suggests that here at least the widow had, as a rule, no

^ A 15th-century translation, how- ^ We may compare the Freiburg-

ever, makes the rights alternative. im-Breisgau rule and the Berne cus-

^ Bracton, f. 97 b, gave to the non- tumal, c. 45 (Keutgen, Urkunden, L

burgess widow no dower of the chief 132). If one of the children marries,

messuage if there were other lands on the couple can enter the widowed

which a house could be built. But if mother's house and live with her, without

there were none, she must have dower damage to her. She is to have the fire

of the chief messuage (' tunc de necessl- and the best place in the house. But

tato recurrendum erit ad capitale mes- neither son nor daughter can do this if

suagium, sicut in burgagiis ad liberum there is another dwelling. Into the

bancum).' Beaumanoir, § 439, stated a widower's house the married child

rule in favour of dower of the chief cannot so enter,
messuage, even though it be a fortress.

ex INTRODUCTION

other provision made for her than this provision for her continuance
of the household. The London and Exeter rules, if we read them to-
gether, as mutually explanatory, arranged that the widow should take
her dower when she resigned her free-bench, and not enjoy both
together. In London (II. p. 126) the free-bench was of a more than
usually liberal kind, for, instead of an undej&ned right of ' Beisitz,'
she took the hall and principal private chamber and cellar for her
sole use, and was allowed the use of the kitchen, stables, &c. She
lost the free-bench on re-marriage, and could then take dower.^

The common law of dower in the end was preferred to the ancient
free-bench in widowhood. Opposition to a w^idow's right in the chief
messuage grew with the growth of primogenitary right, and eventually
in some places she lost not only the free-bench during widowhood, but
also dower of the chief messuage. This rule, easily understandable
where military tenure was concerned, especially if the chief messuage
were a fortress, had not the same justification in the boroughs, where
the division of the burgage was for many purposes encouraged. The
Scottish burghs ruled that, if there were lands of which the widow
could have dower, she must take dower and resign free-bench (II.
pp. 121-2). The common law's rule allowing the widow * quarentine,'
or free-bench only for a term of forty days, within which time dower
was to be assigned, became the rule of many boroughs. But in some
at least of the older boroughs, when there were lands of which she
could be endowed, she was dowered not of a third, but of the moiety,^
and ceased to have rights in the chief messuage. If there were no
lands other than the chief messuage, she received at the church door
a dower of specified chattels, or a money dower.

The Second Wife. — The Scotch rules and the Ipswich custom on
the dower of the second wife bring out the point that the second wife
ought not to have any right which will make it possible for her to
dwell, after the husband's death, in the chief messuage with the
family of the first wife. The Scottish burgher's second wife could
have dower of lands inherited by her husband after his first wife's
■death, and such part of his lands of purchase as he gave her. She
might remain in the house of the heir by the first wife — the chief
messuage— for the term of forty days. Ipswich, which gave a very

^ Bracton (see II. p. 121) speaks of quity of dower of the third or the moiety

the London widow's loss of dower on re- is a moot point. Cf. Ficker, Erbenfolge,

marriage, perhaps confusing the burghal iii. 246 s^g-. ; Brunner, Erbenwartrecht

free-bench with dower. in Festgahe f. H. Dernhurg, p. 55. For

2 H.E.L. ii. 419; below, p. 125; dower of the moiety in A.-S. times, see

Brissaud, p. 1G62. The relative anti- Essays A.-S. Law, p. 175.

HUSBAND AND WIFE Cxi

liberal free-bench to the first wife, gave to the second only the term
of forty days for assignment of dower of the moiety of the lands of
which the husband died seised in fee.

Wife^s Debts. — The unity between husband and wife in some of
the boroughs tended to an unusual completeness, inasmuch as some
boroughs made the wife's debt the husband's, irrespective of the ques-
tion whether it preceded or followed the marriage, irrespective of the
nature of the debt, and irrespective of proof of agency. The Ipswich
husband answered for his wife's debts, whether they were incurred
before or after marriage (I. p. 224), as he would for his own. It was
his own fault if he married a woman with debts and nothing to
contribute to his stock, and it was his own fault if after marriage he
could not keep her so completely * sub virga ' thai; she would incur no
debt of which he did not approve. The only limit drawn was that
the husband was not bound to answer for debts of which his wife
(after marriage) had become a pledge. Whoever accepted a wife as
pledge did so at his own risk, for her responsibility as pledge could
not be enforced against her or her husband. Thus Ipswich obtained
a home-made rule which may fairly be compared with the senatus-
consultum Yelleianum.

At Norwich the husband was charged with responsibility for his
wife's debt though it was incurred without his knowledge. There
could be repudiation only if the wife lived apart from her husband
through fault of her own.^

A Scottish rule made the husband answerable for his wife if she
failed to secure her own acquittal in court when impleaded, pro-
vided the sum at stake did not exceed M. The writer goes on to give
a reason for the rule : ' for the wife is deemed to be ignorant and,
acting foolishly without her husband's advice, should be kept and
chastised like a child under age, for she is not " sui juris" ' (L p. 223).*
In attempting to plead alone she had shown her incapacity, for the
correct defence would have been to plead coverture ; the action then
would have abated, and perhaps the plaintiffs next step would have
been to institute a new action against husband and wife. The court,
however, made the husband punishable up to 4d, for allowing his
wife to be troublesome. * A battre faut I'amour,' according to the
French proverb, and he had not kept her sufficiently in fear of his

^ So too at Bayonne (Balasque, ii. ' Cf. DidL de Scacc. iv. 18. * Ma-

262) the husband* could repudiate the lier sni potestatem non habet sed

debts of a wife who wilfiilly absented vir.'
herseH

cxii INTRODUCTION

rod. But anyone who gave credit to a wife beyond this humble Hmit,
and then was misguided enough to implead the wife without the
husband, would fail of recovery.

Kules of a general kind, applied not specially to the burgess wife
who traded as a merchant, but to all burgess wives, seem due rather
to the complete responsibility of the husband for the wife than to the
doctrines of commercial law which produced rules for the wife-trader.
The married woman trading publicly as a merchant in certain
boroughs could plead and be impleaded alone ; she could not abate
the writ by pleading coverture like an ordinary married woman. The
general effect of the custom relating to the wife's trading debts
. (and these only are probably referred to in the texts which are worded
so that they seem to cover all her debts) was that the court dispensed
with all question of the husband's authorisation. If she traded
publicly as a huckster, it was understood that she did so with his
consent. In the boroughs no one could trade publicly as a merchant
without a formal enrolment. The rule on the wife-trader's debt was
founded on the same principle as that which in London (I. p. 227)
made the infant trading as a merchant liable in actions of debt and
account.^

The borough customs leave us in the dark as to the fund upon
which the wife's debt was to be charged when she was made answerable
as a * femme sole,' whether only upon the goods and lands which she
had purchased in her own name, as a trader, or upon the estate of
the joint household.^ The fifteenth- century law of Lincoln shows that
the wife-trader would be imprisoned like any other debtor, and her
husband's goods would not be attached or charged for her debt (I.
p. 227). Throughout there is no suggestion of an implied ' agency' ;
the cause of the rule seems rather the trading wife's independence of
agency, derived from an earlier time of incomplete legal definition of
her right of property. If husband and wife pursued the same trade,
then, as the Lincoln rule implies, the wife could plead coverture.^

With the rule that the wife-merchant could be impleaded alone
generally went the rule that she could recover her trade- debts alone.
The Fordwich rule gives the huckster- wife somewhat less independ-
ence. If a plaintiff preferred to implead her as a wife he could do so,

^ Merchant law, even in Italy, Continental rules. Kraut, Vormund-

made the minor ' sui juris ' when trading, schaft, p. 574 ; Toulouse Cust. II. i. art.

Mitchell, p. 83, citing Fertile, iii. 380. 67 ; Glasson, viii. 349.

2 The trading wife's debt was charged ^ This was the shape taken also by

on the ' common good ' of husband and the London custom, PrivilegiaLondini,

•wife or on the husband's goods in early p. 124 (1702).

HUSBAND AND WIFE Cxiii

and she could not bring an action without her husband. There are
traces then of a good deal of variety among the customs, and more
information, such as the borough court rolls doubtless contain, might
clear up some difficulties. A Worcester rule of 1467 begins by
requiring * any man's wife ' who was debtor, or pledge, to answer as
a ' woman sole merchant,' but what follows is in definition of this
general principle, and shows that it applied in reality only to wives
professionally engaged in trade. It is remarkable that in England,
so far as we know, this custom was confined to the boroughs, whereas
in France any wife who was a trader, whether the wife of a burgess
or not, was treated in this way. Beaumanoir names the cases in
which a wife could be made to answer for her debt or ^Dledge during
coverture : namely, when the husband is out of his mind or a ' natural
fool,' when the wife is a merchant in some trade in which the husband
is not engaged, which trade the husband allows the wife to carry on for
their common profit, or when the husband is absent without hope of
immediate return.^

The borough customs also in some cases gave the wife an inde-
pendent responsibility extending beyond her own trading debts.
Some customs of the fifteenth century made the wife answer alone for
her debt, whatever its nature, if there were difficulty in securing the
husband's presence, as at Waterford in 1467. So also at Waterford
(I. p. 226) the wife of a burgess of another borough, if she were left
in Waterford, could be made a hostage for her husband's debts ^
(I. p. 226). At Lincoln, in a plea of trespass against man and wife,
if the husband made default, the wife was treated as sole. On the
other hand, if she was joint plaintiff with her husband, and he failed
to appear, again she was regarded as sole.

The absorption of the wife's personality in her husband's was,
of course, not so complete as to make him answerable in his own
person for her crimes or all her trespasses. The Ipswich custumal
observes that in plea of trespass, where there is risk of imprison-
ment or of the cucking-stool, she may be treated as if she were single :
that is, she will be sued and punished in her own person.^ But if
her offence touched free tenement, her husband would have to be

^ Beaumanoir, § 1336, § 1378. Cf. ^ Some London bakeresses in 1327

also Etahs. St. Louis, i. 148 ; Livre de (Biley, Memorials, p. 165), when com-

Jostice et de Plet, 131 (which shows mitted to the pillory for their frauds,

the wife as plaintiff). pleaded coverture, * that the deed was

^ The wife was made a pledge for her not their deed.' They were sent back

sailor husband by a symbolic action at to prison, and the point was left xm-

Bayonne in the late thirteenth century. determined.
Balasque, ii. pp. 379-80.

VOL. II. . g

cxiv INTRODUCTION

impleaded with her : that is, we may suppose, for disseisin or trespass
to land and the like.

Some custumals made it possible for the burgess's wife to repre-
sent her husband in court, even to defend his suit (I. p. 223). She
was not her husband's attorney in such case, for no writ was neces-
sary and no appearance of the husband. At Salford she could * follow
the plea ' for her husband, and this may mean defend his suit (see I.
p. 151) in the event of the husband's absence on a long business journey.

Summary, — Under the pressure of the common law, which crushed
out many such irregularities on the subject of the wife's debt as those
which our custumals describe, the exceptions to the general rule of
■the wife's powerlessness to bind herself by contract have remained
few. Modern law-books on contract still have to allot a paragraph to
the custom of London concerning the wife-trader, but this custom has
failed to become a notable example among the exceptions to the general
rule, because it can be pleaded only in the City courts, not in the
courts of common law, and also because it is necessary even in the
City court that the husband be * for conformity ' joined as a party.^

From what has been said above, it will appear that no definite
doctrine of * marital community ' was shaped by the boroughs. As
regards the dissolution of the marriage, when the existence of the
* community ' may first become obvious, the English boroughs did
not follow on the lines marked out on the Continent, but were con-
tented in the main with an arrangement which gave the survivor
of the marriage every opportunity to hold the household together;
this ' gain de survie ' postponed some difficult questions. As far as
movables were concerned, the * legitim ' rule was there to support the
widow's claim to a moiety or a third, and to prevent the husband
from dealing quite freely with * his ' goods by will. The burgesses
had an opportunity to adhere to the old system which gave the
wife power, like the husband, to bequeath her 'reasonable part,' but,
as we have seen, the opportunity was generally neglected. There
was, however, much variety of rule as to the treatment of the lands
which were the wife's contribution to the common stock. Over her
lands of inheritance there was, as already explained, a tendency for
her kindred to retain a measure of control, which deprived the
husband of power to deal with it freely even with the wife's consent.
Over land which came to the woman before or after marriage, not as
inheritance, but as 'purchase,' the husband could deal freely with heMI
consent, but he could not everywhere prevent her, if childless, fron^W'
1 Pollock, Contract (1902), p. 84..

HUSBAND AND WIFE CXV

devising such land, in whole or in part, according as the custom of
the borough decided. Without any system of * marital community,'
and also without complete subjection of the wife's right to the hus-
band's, the boroughs made compromises, here one and there another :
none based on broad principle. While the burgesses avoided all
definition on points of difficulty, the common law had time to arrive
at a decision not altogether in accordance with the facts of early
history. With small exception, however, the common law settlement
was acceptable to the burgesses. Whatever independent track the
boroughs had sought to cut through the tangle of possibilities
springing from the marital relationship, the borough had no route to
offer that could permanently rival the common law's ' short cut,' ^
which gave the husband ownership of the wife's chattels ; which gave
the husband power to alienate his interest in the lands that came to
the wife before or after marriage; which opposed the wife's testa-
mentary power, and in the end set no restraint upon the husband's
testamentary power over the chattels, since any such restraint would
have betrayed a weak place in the central doctrine.

6. Eights in Land.

Seisin. — The boroughs of England did not succeed in giving to
the national law that system of registration of all feoffments which
the German national law derived from the towns, but there are several
indications in the custumals that official delivery of seisin was specially
favoured. It was favoured above the private feoffment inasmuch as
where seisin was delivered in court a special protection was secured.
Seisin, we are told, generated a title to the land, a title good against
all who had no better because older title, but there was a particular
kind of seisin in the boroughs which so ripened to maturity as to
make it hopeless to seek recovery on a plea of older title, by dint, at
least, of such simple actions as the borough court, of its own initiative,
could put in motion. That kind of seisin was a seisin officially
delivered before the borough court, which had power to * ban ' those
claimants who failed to advance their claims within year and day of
the puWic delivery of seisin. At each of the three (or four) ' generalia
placita ' held within the borough after the conveyance, the conveyance
was proclaimed, and it was at one of these meetings that the adverse

1 H.E.L. ii. 430.

cxvi INTRODUCTION

claim should have been advanced.^ The lapse of year and day or

* possession annale ' legalised the seisin, converting it into a * rechte
Gewere,' which was more than mere possession.

The legal seisin given by the official ban did not in all cases make
it impossible for any claimant to enter suit, but it gave the possessor
certain great advantages in meeting the suit. He either did not
have to ' answer ' at all, if he proved the term of seisin, or had only
to swear once with the reeve and witnesses (I. p. 272). Three lawful
men of the courfc could witness at Northampton, two at Preston.
This, as the Scottish rule puts it, prevented the demandant from

* being heard ': he had no opportunity to produce his proofs.^ The
Winchester rule says the demandant is ' foreclosed ' for ever, subject
to certain exceptions. Even if the demandant succeeded in winning
back the land under the tedious process of the royal writ of right,
he was required at Kilkenny in 1223 (I. p. 223), to refund to the
tenant all that had been spent on the tenement since the lapse of
year and day after the official delivery of seisin.

The frequency with which the grant of the preclusive term or
' possession annale ' was made in charters, especially in northern
France,^ suggests that in some quarters its origin was royal. In
England mention of the grant is less frequent, and a passage in the
Leges Henrici, 59. 9 a, may show that it was at one time general,"* for
the heir by this rule was required to enter his claim at once and let
no one hold for year and day after that time : that is, if the heir were of
sound mind, and if the country were at peace. In the boroughs,
minority, illness, absence from the country, service in war, were
accepted as excuses for not making claim within year and day. In
some cases imprisonment was also included in the list.

In the borough custumals it will be seen that the * possession
annale ' and the official delivery of seisin are closely associated. If,
as at London, official delivery is not stipulated in the text that treats
of possession for year and day,^ it appears none the less in the shape
of a fee for delivery, the alderman's besant,^ or, as at Whitby, a fee
for seisin and payment of drink money to the burgesses, like the

* In London (I. p. 271) the early rule ^ On the vexed question of the origin

on ' possession annale ' makes it hold of the ' possession annale ' in folk-law

good only against persons dwelling in the or in the ' missio in bannum regis,' see

citv : that is, the suitors of the London Champeaux, Saisine, p. 377.
folkmoot. ^ I. p. 270.

2 The German system was the same. * I. p. 271. In 1279 the crier was

Heusler, ii. 107. granted 2s. a year ' de prima seisina in

» Heusler, Geivere, pp. 341-3, gives qualibet warda facta.' Cal Letter Boole

many instances. A, p. 206.

RIGHTS IN LAND CXvii

* Friedewein ' paid on delivery of seisin in the German towns.^ But the
delivery of seisin did not necessarily take place before the borough
court ; probably the wardmoots could authorise it ; at Bury (I. p. 271)
there was a conveyance in vill or market, possibly like the German
conveyance ' an offener freier Strasse,' involving, like the seisin before
a court, a legal sanction. Although the London rules (I. p. 271) might
be taken to imply that the alderman took a fee for every feoffment
made within his ward, these passages must not be taken to preclude
every private feoffment, release, &c., but as fixing the fee for every
feoffment made in the ward moot, feoffments which would be privileged
and comparable to the fine made in the King's court, in their
security. The Scottish rules show clearly that both kinds of convey-
ance were allowed (I. p. 273) .^ A statement in the Liber Eliensis
(p. 140) noting that ' vades de emptione ' were not required at
Cambridge, Norwich, Thetford, and Ipswich, which were of such
dignity and liberty that he who bought land there needed no ' vades,'
may point to an early ofiicial conveyance in these boroughs.

In this connection reference may be made to a certain curious
Leicester charter, granted by King John in 1199, *quod omnes
empciones et vendiciones terrarum ville Leircestrie que facte sunt et
que fient racionabiliter in Portmanmot ejusdem ville stabiles et firme
permaneant.' There are many entries on the Pipe Kolls of John's
reign which show pretty clearly how such a grant might become
necessary. But it is to such rules as those of the ' possession
annale,' the proof before the court of * urgent necessity,' of the year
and day term for the kin's pre-emption, and the like, that we must
look as giving the details which underlie the general statements of
the royal charters, for instance that of Henry IL to Winchester, *quod
habeant et teneant omnia acata et vadia et tenementa sua secundum
consuetudines civitatis.' ^

Heir's Seisin. — The lord and burgesses of Cardiff agreed that the
heir might enter on his inheritance without making it known to the
bailiff or reeve (IL p. 80). He need pay no seisin shilling, no relief,
and no heriot. * Le mort saisit le vif ' in this case, and the burgesses
were saved from the necessity of acknowledging the lord's superiority
by paying a tax on the redelivery of the tenement; these clauses
guaranteed to the burgesses their free ownership. A seisin-shilling

^ II. p. 81 ; Maurer, ii. 832 ; iii. 5C8 9. or common clerk.

^ The Act of 1567, c. 68, forbade the ' Cf. Henry's Rouen charter, 1174 5

giving of private seisin in boroughs. Cal. Fr. Charters, p. 35, and John's en

Seisin must be given by the town bailiff largement of this phrase. 1199 ib.

cxviii INTEODUCTION

might have to be paid for a conveyance of the burgage by purchase or
gift, not upon inheritance. The custumals require no public cleHvery
of seisin to an heir who reahsed his seisin immediately upon his
father's death or funeral, by his presence in the house. Where,
however, the seisin of the heir could not be immediately realised, there
was a vacant seisin, and the * rechte Gewere ' had to be delivered by
the court or its officer. At Winchester, on the death of any tenant in fee
(I. p. 233), the officer took a 'simple seisin' (without usufruct) until
such time as the court could give seisin to the heir. At the next
court the tenements were given up to the next of kin appearing in
court to claim, but if anyone alleged the existence of a nearer heir
or a parcener, his friends should warn him to come, and he would be
given time to do so. If he were out of England, he had forty days in
which to return. If he failed to appear, he could then claim only on
a writ of right ; but if he came in time, he had the same estate given
him that he would have had if he had been in the town on the day
when his ancestor died. Meanwhile the seisin probably remained with
the bailiff. Beverley (I. 237-8) gives an obscure and difficult text on
the subject of the proceedings after a death. The serjeant of the town
entered with the claimants on behalf of the community, to keep the
peace until the next court, when the question of greater right could
be settled by inquest. If the true heir were absent and ignorant of
an intrusion, the intruder (seised by and with the serjeant) held not
as heir but as guardian. The intruder found pledges to restore to
the heir, when he appeared, the land, or its value, if the intruder
preferred. What underlying purpose we are to read into this passage
it is difficult to say. At Dublin the mayor and bailiffs took seisin of
vacant land for which no heir could be found (I. p. 275), and used this
power as a means to prevent the exesution of gifts to take effect after
the donor's death, when made to a religious house by parents who
were unaware whether they had living descendants or not. Devise in
mortmain if made on the deathbed was invahd (II. p. 95), and disherison
in anger was forbidden (II. p. 95), but perhaps a postobit gift to religion
was possible if made in health, and in the belief that no descendant
lived. If the heir could not be found (II. p. 101), * as soon as the
corpses [of father or mother, or the last survivor] are out of the door,*
the city authority took seisin and allowed none to enter. The corpse
was in * seisin ' while it lay in the house, as Bracton pointed out*
If twenty or forty years ^ after (I. p. 275) the heir appeared and

^ Cf. Caillemer, Confisc, et Admin, pp. 112-3, on these prolongations of the
delay for the heir's claim.

RIGHTS IN LAND Cxix

claimed seisin, and an inquest determined that he was the right heir,
he paid any costs incurred on the tenement (II. p. 101) and also the
chief rent for the whole interval. At Bury (II. p. 149) the alderman of
the borough took seisin when the heir was a minor, and dehvered the
land to the guardians ; this rule, if it were general, must have assisted
the securing and the development of borough wardship (pp. cxxviii sqq.).
This English treatment of the vacant seisin is analogous to the
Continental rules for a temporary wardship of vacant succession. In
some cases the term lasted thirty days, in others year and day.^

Disseisin, — The older borough courts had cognizance of writs
concerning land among the * causae majores ' which were treated at
the * generalia placita ' three times a year. In the actions for
disseisin in the boroughs we may possibly be able to find traces of the
system which prevailed before the possessory and proprietary actions
were disentangled by the writs of Henry II. It is not a little remark-
able that in a Norwich custumal of 1306-1311 ^ describing the action
of fresh force (the borough's novel disseisin), the disseisor is described
as one who makes * hamsoknam et abatiamentum ' (I. p. 236).-^ Again,
it is significant that, if the disseisee was prepared to defend his right
to seisin before a court, at Northampton and Hereford it was his
duty at once to raise the hue, a hue equivalent to the French * haro '
in a civil action ^ used to this day in the Channel Islands. He
complained of a personal wrong. Pending the plea, the land waa
sequestrated into the King's hand : it was * in bannum regis ' till the
question of right had been decided.-^ The loser of the judgment paid
a fine (as at Chester in 1086) ; it was the penalty for his wrongful
taking of seisin ; it may be that the disseisee who could not justify
his seisin raised the hue at his own peril. Mention of the raising of
the hue is not made in all cases, but where the custumal omits to
mention the hue, the speedy attachment of the plea by the injured
party supplied its place. The ejectment must have been recently
made, or the borough court could not do justice by means of its own
speedy process : remedy under a royal writ of right would have to be

^ Caillemer, Confisc. et admin, p. 61. Norwich, p. 153. Hamsocn may also

Also Freiburg-im-Breisgan, c. 2, in be used for disseisin in IV. iEtheh-ed

Keutgen's Urkunden ; Briinneck, Sicil. (London) 4. (Liebermann, p. 235.)
Stadtrecht, p. 85. ^ Brissaud, pp. 1240, 1244, for refer-

^ The discovery of an earlier copy of ences.
the custumal enables Mr. Hudson to ^ This sequestration took place at

assign this date. once, n©t after default a3 in the seques-

^ The word occurs both in the rubric tration under the writ of right, and

and in the text. For the full text see there was no replevin as under the writ

Hudson's Select Becords of the City of of right.

CXX INTRODUCTION

sought if there were delay. At Kilkenny the complaint of disseisin
had to be brought \\ithin three 'tides'; in most places within forty
days,^ in London within forty weeks ; ^ in DubHn within year and day.
The writ of novel disseisin in Normandy had to be sought within year
and day,^ and the Dublin rule may have followed this example. No
opportunity was given for that speedy self-help which in Bracton's
day was allowed to those who had been disseised ; the burgess might
not eject the disseisor by aid of his friends within four days, nor call
the borough officer to reseise him ; he could only hasten the sequestra-
tion, and bring the matter in dispute to judgment Certain excuses
were valid to explain delay in seeking official aid within the term,
turning on the disseisee's ignorance of the fact of his disseisin.

The earliest description of the action for disseisin in London
(I. p. 231) comes after 1166, for it is contrasted with Henry IL's
assize of novel disseisin. It is explained that the sheriff ' by
judgment,' probably of the city court, whither the disseisee had gone
to complain, should bring together the alderman and neighbours
of the district where disseisin was complained of, and inquire from
them on their allegiance whether the plaintiff had been disseised
without judgment. If their verdict was for the plaintiff, the sheriff
restored him to seisin, the disseisor being put under pledge till day
for the pleas of the Crown, when the King would recover his fine, and
when (so at least we imagine) the question of greater right might be
decided. The Scottish rule (I. p. 232) makes clear the severance of
the two questions, disseisin without judgment, and the question of
rightful ceisin ; the object of the severance was to give to the original
occupant, and not to the unauthorised disseisor, the privilege of acting
as defendant.*

Of anything older than this, the usual plan followed in the early
twelfth century, we do not read in the borough customs. There is,
ior instance, no mention of any use of compurgation, though the use

* So the 'novel disseisin' of the Ordinacionum , f. 225 a, an undated

ussize of Jerusalem, Champeaux, Sai- ' provision,' probably made temjJ. Henry

sine, p. 375. Although the Norwich III. ; also by the report made in 1864,

custumal accepted the term t»f ' forty Cal. of Letters (ed. Sharpe), p. 104.

days,' in 1528 the * fresh force ' of the Professor Maitland tells me that Y.B.

borough court had so closely approxi- 21 Ed. III. f. 46 (Hil. pi. 65) shows that

mated to the novel disseisin of the King's forty weeks was the term also at Oxford,
court that the common law limit was ^ Gruchy, p. 230 ; cf. Bracton, f.

set {i.e. since the King's crossing to 101, and the year and day for the writ

Gascony, 1242). Records of Norwich, of intrusion, Bracton, f. IGO 6. Heusler,

i. 196. ii. 38.

'^ The text of Liher Alhus is sup- * H.E.L. ii. 46-7.

ported by the fourteenth-century Liber

RIGHTS IN LAND CXxi

of compurgation was admitted in some old franchises where pleas
concerning land were determined.^

An ancient ^ and essential part of the procedure in determining
pleas of fresh force was the taking of the ' view ' or inspection of the
ground in question : and the holding of the court to settle the dispute
upon the land itself, required in Scotland (I. p. 236), has analogies in
the procedure in an action for ' nuisance ' which may show it to be
ancient.

Nuisance. — If we see suggestions of a high antiquity in the
borough action for disseisin, we may see antiquity also in the
borough actions for disturbance of boundaries, encroachments, and
nuisances {' nocumenta ') . Boroughs which were not equipped with full
powers in the * causae majores ' could settle * causae de decertationibus
inter vicinos,' ^ disputes of boundary rights, by a ' lining ' or ' bornage '
made by witness of the neighbours.'' The Beverley borough court
(I. p. 238) claimed to settle small nuisances by the fresh force action,
which it probably could not use in large matters, owing to the peculiar
relationship in which the borough court at Beverley stood to the
provostry court and the court of the archbishop's liberty.^ The
burgess's action for nuisance resembled in most cases the fresh force
action, just as the royal writ of nuisance resembled the writ of novel
disseisin. Complaint had to be made without delay. Peaceful seisin
for year and day in the borough could not be disturbed by complaint
of nuisance, unless there were borough legislation to meet the case
of encroachments concealed (I. p. 247-8). In some places nuisance
had to be pleaded within forty days, the term which limited also the
action of fresh force.

If the borough action for nuisance was used, its processes were
rapid (I. p. 249). In some places the bailiffs and neighbours could
settle the dispute outside the court without plea (I. p. 249). The
dispute was always settled on the site, and resulted in no amerce-
ment ; the defendant who was found guilty had only to pay the cost
of removing the nuisance or encroachment. In London, about 1200,

' The Sanctuar. Dunelm. et Bever- induce the layman to cede St. John's

lac. p. 101 describes a custom of the claim. ^ D.R.G. ii. 515.

franchise of St. John of Beverley, which ^ Leges Ed. Ccnf. 28, 1, contrasts

shows that in disputes concerning lands these as ' causae minores ' with the

a lay claimant had to take the shrine * causae majoreF.'

with the body of St. John of Beverley ^ The Continental towns treated

and put it on the spot which he claimed, nuisance in the same way. Giry, Houev,

and swear with twelve persons on the p. 1(58 ; Roisin, Lille, p. 68 ; Champeaux,

body of the saint. It is assumed that iSaisine, pp. 295, 349.
the solemn bringing of the body will * Poulson, BereWey, i. 152 ; ii. 564-6.

cxxii INTRODUCTIO-^

a jury of twelve men, appointed in busting as officers for this
purpose, formed the assize.^ At Sandwich both parties might agree
to accept the arbitration of the mayor and jurats, or might use a
custom for which no exact counterpart has been found. The parties
could * agree,' perhaps by casting lots, perhaps as the result of a
decisory oath, which party should set out his boundary ; this he was
to do with his right foot, so that the big toe reached the edge of the
land which he claimed, and at the same time he was to swear a solemn
oath to his claim. There was perhaps an element of hazard in this,
as a luckless stepper ran the risk either of ending with his great toe
short of the boundary or of swearing falsely. A wall, too, might be
claimed by a swearer who, as he swore, set his foot against it.
In old German law a simple system for settling such disputes,
where there was equal support for the claim of both parties, was that
the parties should each set out their claim and share the difference.^

Writ of Eight. — Actions could be begun under the writ of right
and heard in some of the borough courts. Such actions resulted
neither in battle, which was forbidden to burgesses, nor in a grand
assize, for the borough had no jury of knights, but an inquest taken
by twelve sworn * prud'hommes ' settled the question of right for ever
(I. p. 253). There were some small variations in the procedure; for
instance, in many of the boroughs the term for replevin, where there
had been sequestration into the King's hand, was longer than the
common-law term of fifteen days.

Certain peculiar proceedings, where there was obstinate refusal to
come to court to answer a writ of right, are described minutely in the
Hereford custumal (I. p. 265), and deserve comment. There was first a
threefold ceremony with a * schedule,' which was perhaps originally a
symbol of ravage like the sod-taking which has been described above
(p. Ixiii). If there were still no replevin by the tenant, the house was
to be cast down * post by post,' a remedy which can have been little to
the liking of the demandant. After the destruction had been completed,
or perhaps symboHsed, the inquest was taken by the whole community
in full court, from which none of the city should be absent. If the
inquest admitted the demandant's right, the bailiff gave formal seisin
of the ruined tenement. The ' beatitude of seisin ' in this case blessed
neither him that took nor him that withheld. The inability to pro-

^ * A London suit ' de divisis ' of the to swear to the truth of the plaintiff's

reign of Henry II. is given in Palgrave's assertion ; after four had sworn, the

Commonwealth, ii. p. clxxxii. In the court was satisfied,
absence of the defendants, fourteen ^ Heusler, Gewere, p. 259.

citizens, chosen by the busting, appeared

EIGHTS IN LAND Cxxiil

ceed against the tenant who refused to appear in court in any more
effectual way than by the destruction of his house-peace, seems to
show that the proprietary action of fifteenth-century Hereford
retained the characteristics of the ancient personal action. If the
parties both appeared, no essoin was allowed at Hereford. In the
matter of essoins there were many varieties of local usage.

One practical reformation was arranged in London in 1285
(I. p. 268), namely, that warranty should be charged on chattels if the
warrantor had no land, a result of the chattel-like character of the
burgage.

Mort cV Ancestor. — Glanvill ascribes to Henry II. an assize which
provided the borough with an action in lieu of mort d'ancestor, but
what this assize was is not known. The royal writ of mort d'ancestor
was not rigorously excluded by all the boroughs, though it was by
some, and there are indications also of a borough action called * mort
d'ancestor ' which followed the lines of the borough * fresh force.* ^
The assize of mort d'ancestor might be appropriate in dealing with
the land of inheritance, which was not devisable at first in the
boroughs, but it was inappropriate to claims made against one who
entered on land of purchase as devisee.

Writs of Entry, dec, — The only actions for the recovery of land, in
London for instance, being the fresh force and writ of right, the
practitioners in the borough court imitated the procedure of the royal
courts in deahng with the newer real actions by causing the demandant,
who brought a writ of right, to protest that he would prosecute his
action * in the manner of ' one of the common-law actions ; thus at
Dublin (I. p. 255) the custumal says that the judges ought not to
complain if the burgesses use the writ of right in manner of a mort
d'ancestor.

An undated provision made by the London court, probably of the
early fourteenth century,^ records that if the heir failed to come
before the sheriff within year and day after the intrusion, and within
year and day the intruder enfeoffed a tenant of the land, the heir had
no recovery except by a writ of right, to be ended in the court ' per
modum possessionis, ut de feodo, in forma assise mortis antecessoris,
et non in forma brevis de recto ut de jure.' And because no writ of
entry ran in the city but only a writ of right, it was provided that the
writ of right in such case could be pleaded according to the form and
nature of a writ of entry, saving to the tenant his warrant if he

^ Liher Albus, p. 198.

* Guildhall MS., Liber Ordinacionum, f. 225.

cxxiv INTKODUCTION

■wished to call any. Again in 1344 a demandant brought a writ of
right in the London husting and * counts in the nature of a formedon
in the descender.' ^

Waste. — The borough court which could order the destruction of a
tenement if the occupant were contumacious, could order also the
building of burgages and control their maintenance. The creation
rather than the destruction of burgages was necessary if the borough
were to flourish ; the existence of habitable burgages was of import-
ance to the officers of the court who w^ere responsible for paying a
fixed composition to the superior lord for rent and taxation.^ At
Preston (I. p. 278) the ))urgess had forty days in which to build, and if
he failed to build he was amerced the amount of his rent, 12d, At
Hereford, if a tenement were ruinous to the peril of passers-by, the
man whose tenement it w^as had six days' warning, and if he did not
repair it the community cast it down ; no doubt he would none the less
have to contribute to the borough charges on that tenement.

The borough court which could prevent injury to the community by

* waste,' could also protect individuals w^ho made complaint that injury
was done to tenements in which they had proprietary rights. Before
the Statute of Marlborough, when the royal courts could interfere to
prevent destruction and waste of a tenement by a tenant for life only
by means of a royal prohibition to stop future waste, Northampton
(about 1260, I. p. 281) had a process of a restricted kind to stop

* intended ' waste, which apparently applied to the case of tenancy
in fee as well as to tenancy for life or term of years. The rule
treats only of waste as likely to arise at a time when rent was in arrear.
In that case it was anticipated that the tenant might seek to sell all
distrainable goods, and even the timber of his dwelling, of which the
doors and windows were distrainable (I. p. 305). If the chief lord
suspected this intention, he could come to the bailiffs and require them
to attach * whatever they find, whether it be timber or anything
timbered ' ; the attachment made on the fee was delivered to the lord
*in the name of distress.' This speedy official attachment of the
whole or part of the property which the chief lord feared to lose was
accompanied also by a right to attach officially ' anything * (probably
anything * timbered ') that had been bought or removed from the

1 Y.B. 18 Ed. III. f. 8 (Hil. pi. 25). H. Eound in the Antiquary, xii. 201,

Professor Maitland, to whom I owe this 278. The Roman provincial' towns had

reference, points out that the same a compulsory restoration of buildings,

method was used in the courts of ancient Mommsen, Stadtrechte v. Saljpensa u.

demesne. Malaca, p. 481.

* Cf. D. B. Studies, i. 129, and J.

RIGHTS IN LAND CXXV

tenement ; at the next pleas the buyer's right to keep his purchase
was discussed and determined. If the tenant made satisfaction for
arrears and found pledges to rebuild his tenement — and it is
assumed that he had already removed its timbers — then the attach-
ment could be replevied by him.

In the fifteenth-century custumal of Dover, the question of waste
is treated, as at Northampton, as one associated with the case of rent
arrear. The mayor and baihff were required to forbid w-aste if the
landlord asked for their interference, and if they were satisfied that
the ground would not be able to yield the rent in case waste were
made. Whether the landlord would recover the tenement if the
injunction were not obeyed is not stated.

The common law treated the question of waste in a somewhat
different fashion both before and after the Statutes of Marlborough and
of Gloucester, which made important changes. The tenant for life
before 1267 appears to have been liable to an action for waste only
if he had already received a royal prohibition of waste.^ After the
Statute of Gloucester, c. 5, the successful plaintiff had recovery of the
wasted land, against even the tenant for life. A variant on the pro-
cess under the wTit of waste as established by statute is found in the
Ipswich custumal (1291). Here an action for waste could be begun
without writ, by gage and pledge, in the borough court, and, if suc-
cessful, led to recovery of the land, unless the defendant found sureties
for restoration. Threefold damages were not given as under the
Statute of Gloucester, c. 5, but the damages were assessed by a jury.

The slowness of the common law in providing a satisfactory action
for waste, and the peculiar structure of the early borough action for
waste, such as we find at Northampton, may perhaps be accounted
for in this way : while the feudal law was strong, the seignorial right of
forfeiture for deterioration of the tenement ^ supplied in the case of the
other tenures a means to deal with waste which postponed the need
for royal interference ; but the peculiar conditions of the burgage
tenure were such as to necessitate at an earlier time the development
of a process in the borough court. The landlord who enfeoffed a
tenant of a burgage for rent had, in the older and larger boroughs,
as we have seen, usually a means of recovering the burgage only
when it had lain ' fresh,' with nothing distrainable upon it, for a
certain term. The position of the tenant in burgage was strong, and
the borough court was not disposed to allow any powers of self-help
to the landlord. But provided that the borough court itself was used
' H,E,L. ii. 9. ^ Heusler, ii. 184.

Cxxvi INTRODUCTION

as the means to admit the landlord to a control of the property when
an intention to commit waste was proved, the court gave a remedy, not
perhaps with a single eye to the landlord's interests, but to the interests
of the borough, which found in the tenement a gage for the per-
formance of duties owed to the borough.

Termor's Security. — According to the law of Henry II. 's day, the
lessee had his remedy against the lessor for ejectment during his
term of years only by means of a writ of covenant, for he had nothing
but a personal right. This would enable the termor to recover the
enjoyment of the term from the lessor, but left him powerless if the
lessor sold the land to another. In such case ' sale breaks hire.' About
the year 1235 a remedy by the writ 'Quare ejecit infra terminum ' was
framed, but owing to the way in which it was drafted, as Professor
Maitland has shown, it failed to protect the termor against ejectors of
all kinds, and secured him only against the purchaser. In 1278 the
Statute of Gloucester, c. 11, gave to Londoners and others a further
remedy for the termor, making it possible for him to intervene in the
case of a collusive action arranged by the lessor so as to give recovery to a
demandant who would oust the termor. The special application of the
statute to London suggests that the demand for it first came from there.
Until 1285 the London termors used the * Quare ejecit ' ; but in that
year the borough court was given authority to proceed on the lines of
the * Quare ejecit ' without a writ if the termor brought his action
within forty days of the ejectment. The city court of Dublin, un-
troubled by the nice distinctions drawn by legal science between
the several varieties of seisin and possession w^hich impeded the de-
velopment of the common-law remedies, found its way independently
to a remedy which gave the termor an action in the nature of ' fresh
force ' against the lessor's feoffee. The termor was accorded a * free
farm,' not to be distinguished from that ' free tenement ' which the
more scientific lawyers denied him.^ The termor gave his gage ' to
sue as in a case of fresh force ' that he had been wrongfully put out
from his free farm within his term. But the actions real and personal,
the novel disseisin and the breach of covenant, were so little dis-
tinguished that he could prove his case by the witnesses to his contract.
Only if the witnesses were dead did the bailiffs take an ' inquest of
office' (Lp. 312).

Dublin also gave the termor a right of first purchase when the
lessor proposed to sell or let the land,^ a practice admitted elsewhere,

1 H.E.L. ii. 36-7, 114.

^ Cf. Brissaud, p. 1335 ; Des Marez, Propriete foncUre, p. 266 ; Roisin, LiZZe, p. 64.

EIGHTS IN LAND CXXvii

where the problem whether or no sale breaks hire was causing
difficulty.

Attornment. — The borough court which delivered seisin, and could
give all the advantages of the ' fine ' by means of the deed enrolled,
could also compel the attornment of a tenant to a lord who had
acquired rights over the land by means of a conveyance.^ Tenants
could be compelled to appear and confess the terms of their tenure,
and if they refused attornment without reason, the court could attorn
them, without having recourse to the royal writs for this purpose.^
Yarmouth (T. p. 319), on the contrary , appears to have been without means
to compel the terre-tenant's consent to the alienation of a rent-charge.

7. Minority.

Age of Discretion. — The years of discretion, which brought to a
child independent responsibility for crime and trespass, were in some
boroughs chosen to give the child full legal capacity ; in other cases
there was a tendency to vary the age of majority needed according
to the particular act which had to be made valid. For instance, in
the borough the power to devise land was sometimes delayed. In
one curious case the custom was pleaded that a child was * of age at
birth,' probably in order to extend the borough privileges in the
alienation of land to their utmost limits. A mistake might be
suspected, were it not that Beaumanoir opposes as unreasonable a
similar doctrine which some people had advanced for the villeins of
Clermont and Beauvaisis.^ The borough courts, having probate of the
devise, followed the ecclesiastical courts in favouring an early age for
the lawful making of wills. The borough courts, which administered the
intestate child's chattels and appointed guardians for orphans, could
control the making of the minor's will. In London, however, though
there seems to have been an inclination to allow children under age to
devise land, the custom was stated in 1419 to the contrary.

The age of ' discretion ' was ascertained by the familiar counting
tests and yard-measuring test. Torksey kept to a four ' ore' test (5a. 4^.),
and Shrewsbury required that a child should know a good penny from
a bad. Later on, the courts inclined to add an age limit to these

^ But some attornments in the ^ ' Aucun si dient que li enfant de

boroughs are entered on the Close Roll pooste sont tons jours en aage, mes

of 1231-4, see pp. 140, 148. c'est gas[= plaisanterie].' Beaumanoir,

■^ ClH.E.L.u. 102. §536

cxxviii INTRODUCTION

tests, and to advance the age of majority. The borough court,
with orphans under its own wardship, could test for itself the reality
of the discretion of the ward before full legal capacity was granted
and the term of wardship ended.

Wardship. — The gradual development of an elaborate system of
municipal guardianship forms an interesting section of borough legal
history. The evidence supplied by the EngHsh boroughs can be
enriched and completed by evidence derived from the Continental
boroughs, for similar developments were proceeding all over Europe.^
The earliest Germanic law had known a guardianship exercised by the
whole kin ; later, a ' tutela legitima ' in the person of the next of kin
of the father's side ; and later still, a dative guardianship. It is doubt-
ful ^ how and when the early Germanic folk- law first came to admit
anything equivalent to the Eoman * jus dandi tutores,' an appointment
by public authority of a * mundoaldus ' for those who were without
kindred to claim the *mund.' Probably the appearance of the
guardian appointed by burgesses should be traced to royal and
seignorial sources, not to early folk-law. The Franks were prepared to
give to the King a theoretical duty of protecting widows and orphans,^
and the officers of the borough court probably derived from this
source first their power to appoint a guardian when no natural
guardian existed, and ultimately their control of the selection of the
guardian in all cases. Where the Eoman influence was strong, the
'jus dandi tutores,' conferred of old upon the municipal magistrates,''
went to confirm the institution. Side by side with the possibility of
a magisterial guardianship in the hands of officers of the public courts,
was the possibility of a seignorial guardianship. The lord of the land
might claim the wardship to the exclusion of the kin. In the smaller
boroughs, under a single lordship, it was early made a clause of the

^ Maurer, Stddteverfassung, i. 419- ship, but the order of precedence may

422 ; Brissaud, p. 1149, note 3 (German) ; be the other way about.
VioUet, Communes, p. 405 (Mem. de ^ Heusler opposes the idea that the

rinst. de Fr.) ; Droit Civil, p. 544 ; principle was early recognised, ii. 493,

Barckhausen, Bordeaux, p. 214 ; Cus- 500. Viollet, Droit Civil, p. 544, is pre-

toms of Oleron in the B. B. of the pared to admit it early.
Admiralty, ii. pp. 288-9, 339 ; Tardif, ^ J),b.G. i. 223, and for the refer-

Droit Prive de Toulouse, p. 35; Flens- ences in the A.-S. laws see Essays on

burg Stadtrecht, art. 7, 8, 10 (Schleswig), A.-8. Laiv, p. 182.
in Paulsen, Staatshiirg. Mag. v. 71 sqq. ; * The laws of Salpensa and Malaga

Roisin, Lille, p. 110; Warnkoenig- of 81-96 a.d. contain a law of guardian-

Gheldolf, Ypres, p. 142 ; Lattes, Diritto ship closely parallel to that of the

Commerciale (1884), p. 49 ; Fertile, II. mediaeval custumal. Mommsen, Die

ii. 141 sqq. ; III. 396 sqq. Brissaud, p. Stadtrechte von Salpensa und Malaca

11C5, note 5, suggests that a gild guar- (1855), p. 437.
dianship preceded the town guardian-

MINORITY CXxix

borough charter that the lord should give up his right of wardship,
and that the duty of guardianship should devolve in the last resort on
the reeve or some person selected by the burgesses. There was to be
a dative guardianship when the natural or testamentary guardianship
failed, never any seignorial guardianship. The testamentary guardian-
ship, of course unknown to early folk- law, which admitted, indeed, no
power of selecting the ' mundoaldus,' who claimed by degree of kin-
ship only, seems to have become a borough privilege akin to the
privilege of freedom of alienation and devise. It is found where
Eoman influence can in no way be suspected.^ That it should not
have become generally legitimate in England till the reign of Charles 11.^
must be ascribed to the same influences which tended to prevent
devise. In the early history of the borough wardship there is little
sign that the dative guardianship, in the hands of the court, could take
precedence over the legitimate guardianship, w^hen kinsmen claimed it,
offering the required guarantees. "Where it was possible for the kin
to select a guardian, this guardian again had precedence. Thus the
twelfth-century record from Pembroke shows that, failing a testa-
mentary appointment, the guardian was chosen by the next of kin
' with the assent of the burgesses ' : this probably means that the bur-
gesses in court must be made acquainted with the kinsmen's choice, and
might reject that choice if necessary. But at a later date (1310) the
city officers of London (II. p. 147) advanced a claim to appoint that
deprived the next of kin of his right, which he sought to exercise by
offering the necessary guarantees in court. Eightly or wrongly, the
officers of the borough courts established that the selection of the
guardian rested with them, recouping themselves, perhaps, from rich
wards for the losses incurred on poor wards whose kinsmen did not
seek the guardianship.

Some of the rules which directed the choice of a guardian from
the kin, where none had been appointed by will,^ suggest that the
power of the court did not at first go beyond the choice of a * legitimate *
guardian, and that a purely * dative ' guardianship developed later. The

' Freiburg-im-Breisgau and other ception the testamentary guardianship

German boroughs. Caillemer, Execu- is met with, it was the executors who

Hon, p. 104. At Bourges {Ordonnances were the testamentary * tutores.' Bris-

des liois de Fr, i. 22) by royal grant a saud (p. 1161, note) names other French

burgess could select one of his ' amici ' cases. Briinneck, p. 05, ascribes the

to manage his dead's part and the child- testamentary and dative guardianship

ren's parts. If this guardian and exe- of the Sicilian towns to Koman sources,

cuter had not appointed four persons to but a Norman source seems not impos-

the ' bail ' before his death, four ' probi ' sible. - Co. Lit. 88 b. note 63.

were to be appointed, apparently by the ^ In addition to the examples given

court. In France, when by way of ex- in the text we may note a royal grant

VOL. II. h

CXXX INTRODUCTION

Scottish burghs gave the custody of the landed inheritance (* hereditas
tota ') to the father's kin, the custody of the child and its chattels to the
kin of the mother's side. It is not clear whether the mother was sup-
posed to be living or not. The clause severing the care of the child from
the care of the 'hereditas ' was dictated by a principle, Germanic, but
not very ancient,^ that the persons who would gain by the child's death
should not have the care of the child, and the persons interested in the
management of the land should have the care of the land. In the
earlier German law the child was not in the mother's ' mund,' but in
that of the next of kin of the father's side. This plan had pretty
generally passed out of use with the changes in the bases of kinship,^
and it is not clear that the Scottish widow was by the burgh law de-
prived of the guardianship of her child. The Scottish rule which
placed the custody of the chattels with the mother's kin seems almost
to suggest that not only the custody of the chattels but the right of
succession to them rested with the mother's kin; but the passage
leaves much obscure, and may mean no more than that the chattels
form the fund from which the children are to be maintained, and that
the mother or her kin administer.^

At London, on the other hand, when the officers of the city were
not desirous of exercising the dative guardianship, the rule followed
was the usual English rule of socage wardship,^ that if land descended
to the infant from his father's side, then the mother, or next of
blood of the mother's side, had the wardship ; and if land descended
to the infant from his mother's side, then the father, or the next of
blood of the father's side, had the wardship, a rule which was arranged
on the principle that

* Ne doit mie garder I'agnel
Qui en deit avoir le pel.'

Guardian's Account. — The official guardianship, and the fact that
the wealth of the borough orphans consisted mainly of chattels, or of
lands that could be treated like chattels, hastened the development in

of a ward and his chattels ' secundum for the keep of a child in Ine, c. 38 : the

consuetudinem civitatis Lincoln,' 1199. paternal dwelling is in the hold of

Bot. de Obi et Fin. p. 12. the father's kin ; also ' Wifmannes be-

^ Heusler, ii. 453 ; Brissaud, p. weddung,' 4, on the widow's claim to the

1145. whole * pecunia,' if there were children

^ The old rule survived long, however, of the marriage and she did not re-
in some parts of Germany. Heusler, ii. marry.
492-4. 4 Co. Lit. 87 b.

' Cf. the widow's allowance of money

MINORITY CXXxi

the borough of a guardianship which savoured rather of trusteeship
than of profitable right.^ The feudal ' custodia ' in England was a
* tutela usufructuaria,' which gave to the guardian all the fruits of the
lands, requiring no more of him than that the lands be given up to
the ward uninjured at his majority. In return the guardian was
burdened with the services due from the ward and with the ward's
maintenance. The earliest traces of a control of the guardian, during
the term of wardship, seem to be connected with the existence of a
guardianship superior to that of the actual guardian. This superior
guardianship seems to have lain sometimes with the community,
sometimes with the kin, with the King or with the feudal lord.
The King, the feudal lord, and the kin might all have occasion to
interfere to prevent gross wrong done by the guardian. Christian
doctrine made the King the supreme protector and defender of the
widow and the orphan against all who would do them wrong ; the
feudal lord sometimes farmed out his guardianship, reserving to him-
self the superior right of the * Obervormundschaf t ' ; and there were
occasions when kinsmen with claims to succession could interfere
with the action of the guardian who was next of kin. As the protec-
tion of the orphan came to contain less of * mund ' and more of ' cura,'
a doctrine of responsibility was forced upon the guardian, more
especially if his guardianship were testamentary or dative and not
'legitima,' above all if he were the nominee of a borough court,
chosen to exercise the rights of that court.

The desirability of having more than one guardian was perceived
when the child inherited from both father's and mother's side, and
each guardian was a check on the other. Where there was a superior
guardianship there was power to remove an unworthy guardian, ^ to
swear in the guardian, to compel the taking of inventories^ and
making of accounts.* The twelfth-century custom of Freiburg-im-
Breisgau treats of the removal of a testamentary guardian who has
been proved on the oath of witnesses to have done harm, ' causa

^ Amira, in his review of Rive's Liberties,' c. 3, proposed that the land of

rorwi^-rztZsc/ia/^, discusses the difference an heir of a tenant-in-chief of the king

between the wardships in Xri^. FieWeZ/.- should be 'bailed 'to the wardship of

schr. xvii. 421, and Obligationenrecht, four lawful men of the fee. On the rela-

i. 735. In the Swedish town-laws the tion of the two texts, see H. W. C. Davis

trust wardship and the usufructuary in E.H.B. xx. 722.

wardship appear side by side. ^ Lex Wisig. iv. 3, 3, under Roman

' The Great Charter, c. 4, ruled that influence,

if waste done by the guardian appointed ^ Heusler, ii. 501. Brunner, i. 90,

by the king were discovered, two knights on the * Vormomber's ' account to other

of the fee should have the guardianship ' Mombers ' (member = muntporo) in the

! of the land. The ' Unknown Charter of law of Drente.

cxxxii INTRODUCTION

mercedis,' ^ to the children in his wardship. But, except where the
influence of the Roman law was strong, no early statement seems to
be forthcoming which gives details of the nature of the guardian's
responsibility. Our own English boroughs can claim to have been
fairly early in the field in providing rules on this subject. Here and
there they were a little in advance of the common law in time, and in
the scope of their scheme of control. It was not till 1259 that the
socage ward, at his majority, had an action of account for the profits
of the landed inheritance, but he could not use the action till he came
of age. The Bristol rule, probably of about 1210 (II. p. 146), without
going into details, gave the msbjor cognisance of all causes concerning
orphans, and a London rule of 1243 shows the guardian answerable
to the heir at his majority for all issues from the landed inheritance.
The tender of pledges for the restoration of chattels is found as far
back as 1275,^ and was probably nothing new. Furthermore, at a
time when the socage ward enjoyed no protection for his chattels
except what the ecclesiastical courts could give,^ the borough ward
, could not only call the guardian to account for the chattels, but also
for the profits of the chattels. This appears from the Ipswich cus-
tumal of 1291, cap. 21. In 1310 the guardian's account in London
included chattels as well as lands, and old custom was vouched,
probably with good reason. "^ Profits of the chattels are exphcitly
mentioned at Bury in 1327. At Torksey, however, we meet the
common-law doctrine that the guardian has only to restore the
chattels as they were delivered to him, less what he could prove to
have been spent on the maintenance of the child.

At Sandwich, in 1350, the increase of both personal and real
property had to be accounted for. At Fordwich (II. pp. 151-2) the
rule was that the child should be maintained out of the profits of the
personal estate if these sufficed, while the profits of the real estate
accumulated for its benefit. In such case ' scot and lot ' was charged
on the personal estate. If the profits of both personal and real estate
were required for maintenance, scot and lot was charged on the
total.

From the end of the thirteenth century,-^ then, wardship had

^ Keutgen, i. 123. better condition. Cal Letter Booh A,

^ Cal. Letter Booh A, p. 4. p. 4, and C, p. 184. Cf. Cal. Letter

^ In the seventeenth century it was Booh G, p. 39, for the refusal to render

doubtful whether the socage ward had an account of ' mesne profits ' (1354),

any action of account for his movables. because of the merchant's difficulty in

Co. Lit. 85 b, note 67. making such high profit as of old.

^ In 1275-6 a guardian gave pledge ^ The German borough evidence

to return the chattels in as good or comes from a rather later date. Stobbe,

MINORITY cxxxiii

become in some of the boroughs a trust, under the superintendence
of the borough court. The interference of the ecclesiastical court was
rigorously excluded in London. In the seventeenth century the
government of orphans was declared to be so vested in the mayor that,
if any orphan sued in the ecclesiastical court or elsewhere for a
legacy or debt due, by the custom a prohibition would lie.^ The
borough court, which sought to secure probate of the devise of burgages
and in certain cases the control of the intestate's chattels, could not
fail to arrive at a system for the control of the guardian's account,
which rapidly became more stringent. Account had sometimes to be
rendered yearly, or whenever the guardian was called upon. The
amount of income to be spent upon the maintenance of the ward was
minutely regulated. At Fordwich sisters who had no separate personal
estate were, while in w^ardship, to be maintained from the brother's
landed estate.^

Attention may be callel also to the curious Fordwich rule which
allowed the guardian to sell ships, or shares of ships, belonging to
his ward, perhaps as being a risky form of investment. But the
guardian was given a right of first purchase, and the rule looks as if
some other spirit than that of justice had dictated it. At Sandwich
there had been some chicanery in the borough dealings with the
borough-ward's shipping, for ships were there ordered by the King, in
1318, to be treated like other movables.^ At Dover the sale of ships
and of tenements out of repair was sanctioned, to cave the guardian
from the responsibility for their restoration. To follow the long
history of borough wardship, its effect on the history of apprentice-
ship and the history of the trust, would require a volume. Its records
deserve to be more fully made known.*

Wardship of Idiots and Lunatics. — The customs contain no rules
on the subject of the wardship of idiots or of lunatics until municipal
control of wardship and of the guardian's account was well developed.
In the reign of Edward I. the wardship of the lands of the idiot or

iv. 446 sqq. In Switzerland, in the In 1693 the London ' Chamber ' of

towns, wards had an action against their Orphans was shut np as empty, and the

tutors long before this was general in city owed the orphans and other credi-

the country. Huber, iv. 515, quoted by tors £747,000. See also Sharpe's

Brissaud. London and the Kingdom, ii. 543-4,

^ 1^. diQl.B.me, Present State of Lon- 579-81. The London 'Court of Or-

don, p. 281. phans ' for the orphans of freemen is now

'^ Cf. Amira, Obligationenrecht, i. in abeyance. To the references given

736, 739. in the text, one to T. P. Wadley's Great

=* Boys, Sandwich, p. 511. Orphans' Book of Wills, Eristob 1886,

I * Noorthouck, Hist, of London, pp. should be added.
1 83, 270, 359, gives many valuable data.

CXXxiv INTRODUCTION

born fool had been secured by the King, in all likelihood after some
struggle with the lords. The King had also the wardship of lunatics,
but had to maintain the lunatic and his family out of the income of
the estate and hand the residue to him upon his restoration to sanity,
or, if he did not recover, cause it to be administered by the ordinary ;
the King in this case had no profitable right as guardian such as be
had over the estate of the idiot, or of any other royal ward.' The
borough customs which deal with the subject of insanity are but two,
Bristol in the fourteenth century and Hereford in the fifteenth,
and the Hereford text appears to be corrupt. At Bristol the
case of the lunatic is treated, not that of the idiot. The King's
wardship is excluded.^ The mayor was to take the ' goods and
' 'Chattels ' (lands are not mentioned) and deliver them to the next
friends to be kept until the lunatic recovered. The next friends had
the custody of the body and were responsible for mischief done by
or to the lunatic. The subject of account is not treated, but there
can be little doubt that account was required and that the wardship
was not a profitable right of the next friends, for by this time the
boroughs had developed a guardian's account.

The Hereford rule treats of the case in which a citizen alleges an
alienation or devise of land to be invalid, on the ground that the
alienator or testator was of unsound mind or an idiot. In such a case
the executors and next of kin were examined secretly and separately,
and if they agreed upon examination, or if a majority agreed, that the
alienator or testator was not of sound mind, the tenement was placed
in charge of guardians appointed in the borough court, and answer-
able in account to the court. There was to be a wardship analogous
to that provided for children who received bequests of land — namely,
a wardship by guardians appointed by the borough council. The lands
of an idiot or a lunatic who did not recover seem therefore to have
been taken up in trust by the borough, but only when alienation was
attempted. The custom proceeds — ' And of idiots in the same way/
unless they have parents living who claim to guard them ; for they
have the preference. Their guardianship would be enrolled and the
circumstances thereof, and presumably the borough appointed
guardians also for orphan idiots who had not attempted an alienation
of land, and heard also the accounts, for they were to be treated like
minors who had received bequests of land.

Wardship of Minors' Legacies. — Lands or goods bequeathed to

1 E.E.L. i. 464.

^ In London the king had the wardship of idiots. Cal. Pat. Bolls, 1402, p. 54. .

MINORITY CXXXV

minors at Hereford were placed under guardians appointed by the
borough council, whether the parents of the minor were alive or not.
In London, also, the father was made to give surety for the proper
management of a bequest made to his child ; otherwise the bequest fell
to the wardship of the mayor and aldermen (II. pp. 155-6).

Extensive as the claims of the borough to control of wardship
eventually became, they could not, of course, touch the tenement
outside the borough which belonged to a burgess's child or orphan.
But though such tenement fell, in the ordinary course, to the ward-
ship of the feudal lord of whom it was held, care was taken in some
early borough charters to exclude any claim made by the lord to the
wardship of the body by reason of the wardship of the exterior tene-
ment ^ (II. p. 145).

Marriage. — The same conflict that arose between the lord, the next
of kin, and the borough council, in respect of their possible claim to
appoint a guardian, took place also over the right to the ward's
marriage. The seignorial claims to control the marriage were generally
abandoned by charter when all the burgesses held of one lord.^ Where
the borough officers claimed to have control of the wardship, the right
to give or withhold leave of marriage went with it. The control of
the marriage of the orphans of citizens of London was associated
with the mayor and aldermen's duty towards them during their
minority, but it fell into abeyance with the Orphans' Court.

8. Seignokial Claims.

Escheat. — The subject of the forfeiture of the felon's lands has
been discussed above (pp. xxxvii-ix) . We find in the English charters
of boroughs under one lordship no mention of a privilege by which
the lord gave up his right to escheats (a clause that occurs in the
French charters of Dijon, 1187, and Beaune, 1203^), although we

^ London seems to have been success- farm, and asserted that the ancestors

fill. An interesting case from the Pleas never were in the king's ward or

coram Rege, 14 Ed. I. Rot. xxxi., is needed the king's leave for marriage,

given in the London Guildhall Liber ' except by reason of foreign tenements.'

Ordinacionum, f. 227 b. An inquest Eventually the Londoners excluded the

was summoned to answer how it was right of control of the marriage by

that the king's ancestors were seised of reason of foreign tenements. De Laine,

the wardship and marriage of Robert Pre seyit State of London, ^. 273 {16S1),

Aglionby's ancestors, and whether he quoting the City Law of 1658.
liad a barony in London. The inquest ^ Cf. for Germany, Maurer, iii. 389.

denied that the land was a barony, on ^ Caillemer, Confiscation, pp. 83-5.

the ground that it contributed to the

CXXXVI INTRODUCTION

do find passages (II. p. 161, note) allowing the ' whole community ' to
make the best profit possible of the vacant burgages, in charters of
the thirteenth century. London itself, the most highly organised of
English towns, admitted an escheat to the King, while denying
escheat to the mesne lord, on the ground that London owed homage
and fealty only to the King^ (II. p. 160). Nevertheless in London
under Edward II. (II. p. 162) protest was made against the escheat of
the lands of a bastard who had died without heirs of his body, and
had not devised his lands. It was urged against the escheat that the
bastard's lands might be sold by the mayor and aldermen and dealt
with as the intestate's chattels were dealt with in some boroughs (see
p. cxliv) ; but the judgment went in the King's favour, and the devise
of the burgage remained as the burgess's sole safeguard against
escheat for want of heirs.

At Norwich an attempt w^as made in 4 Edward II. '^ to prevent
devise of a tenement on the ground that it had ceased to come
under town customs because it had once escheated to the King when
held by a Jew, but the attempt was unsuccessful.

It was not till the sixteenth century that the burgesses of Hedon
entered upon their adventurous course in the municipahsation of
land by means of bylaws which ordered a forfeiture to the borough
as the penalty for infringement. Out of this system there ripened
a claim to all escheats, which brought the town into conflict with the
lord of Holderness, as is noted in our text.

Waif and Stray. — The borough, which was able to enter on a
vacant seisin of land, was able to enter on a vacant seisin of goods,
and take the value of goods sold in its courts as w^aif and stray.
"Where the lord's hold was strong, as at Fordwich, the lord got half
the price, the community the other half. The ancient Germanic
regulations^ for the disposal of the goods were adhered to, the three
proclamations on seizure of the ownerless property, the lapse of
year and day (the term which allowed three or four proclamations to
the full assembly in early time), to admit of the discovery of the
owner, and the sale with the deduction for the cost of keep if the
waif were a strayed animal.

The Lord and the Burgess's Chattels.— The terms of some of the
charters by which feudal lords made their villages into boroughs

^ Cf. Maitland, Domesday Boole and ^ Lex Eib. 75. (Cf. Champeaux,

Beyond, p. 218, note. Saisine, p. 372.) Leis Will. C, Leges

'^ The plea is reported in the London Ed. Conf. 24.
Liber Ordinacionum, f. 233 b.

SEIGNORIAL CLAIMS CXXXvii

show that there were certain groups of burgesses whose personal
dependence upon their lord was in some respects not far removed
from the personal dependence of villeins. The boroughs from which
our texts are derived include London and the old county towns,
and they include also those Newboroughs and Newports whose
inhabitants were converted from villeins into free burgesses by means
of a seignorial charter.^ The change of status did not necessarily
acquit the newly-made burgesses from all renders of a servile
character, or entirely release the lord's hold upon their chattels.^
The change set limits to the services and limits to the lord's rights
over the chattels. The grants which the lords made to burgesses,
admitting their right to remove their goods from the burgages and
to dispose of them freely, show that where no such grant was
secured, seignorial claims could be made which taxed, or even perhaps
prohibited, sale, and alienation of goods and live stock outside the
borough, or the lord's fee. Although the ' free burgess ' of a
seignorial borough owned chattels, as a villein could not, yet when-
ever a change in the ownership of the chattels took place, whether
by sale, gift, or bequest, or by the death of the owner, the control
of the lord had to be acknowledged. Based on equally ancient
social conditions was the lord's right to compel his burgesses to
sell to him the provisions necessary for the maintenance of his castle
and of his men, and to sujDply the goods in some cases at a reduced
price. The borough agreements on the subject of the term of credit
allowed to the lord may have suggested the later statute law of
purveyance. Magna Carta, c. 28, forbade any levy without imme-
diate tender of payment, except by permission of the sellers. In
the confirmation of 1216 a delay of three weeks for payment was
sanctioned (in 1217, forty days),^ on those occasions when the
burgesses of the place where the castle was situated were required to
Bell goods for the provision of the castle.

The Scottish burghs (II. p. 79) restricted the castellan's caption
to the three great Church feasts of the year, and forbade the castellan
to enter the burgess's house to kill pigs, geese, and hens, and then
compel the burgess to sell them. If the burgess refused to sell, the

^ See E.H.R. xvii. 290. 1109 John's charter to Rouen promised

^ Cf. Luchaire, Communes /ran- payment in fifteen days for wine taken

raises, p. 17. by prise. Cat. French Charters, p. 30.

■■' Such rules were common in the The modiacio at Rouen seems also to be

French boroughs also: e.g. at Soissons a right of pre-emption of wine, ih. p. 33.

(three months), Amer. Hist. Rev. viii. Cf. Madox, Exchequer, p. 526, with an

C48; Chatelblanc, c. 34 (Giraud), forty account of the London ' camberlengeria.'

days, or a year if gage were given. In See also E.H.R. xvii. 726.

CXXXviii INTRODUCTION

castellan could take only what he found in the streets, at the price
assessed by the burgesses. The raids of the Caleb Balderstons of
the Middle Ages were kept within certain limits, as far as it lay
in the power of ' custumals ' to control these matters. The burgesses,
having exparienced the pains of the lord's prise and pre-emption,
were none the less ready to inflict them on others, whenever they
could secure such rights for themselves. ,

9. Wills.

Last Wills. — The making of last wills was in early times the outcome
of * privilegia,' and the way to the securing of the privilege lay through
the lord. Consent was most readily obtained when the will was made
as the lord wished it to be made, and when it recognised his
superiority by making a bequest to him of the best beast or some other
valuable chattel. The lord of Chester ordered his burgesses to leave
a third of their substance to God and St. Werburg of Chester, and
more than a third they perhaps could not bequeath to anyone.
Other lords, the King included, seeking tenants for their burgages,
granted them the free disposal of their chattels if they died testate,
or a free succession if they died intestate, saving to the lord only, in
most cases, a fixed sum as a heriot or a ' principal,' a gift of one of
the best chattels, which caused the will to stand. ^

That the will should be made known in the borough court was
desirable, for the sake of publicity and certainty of record, and, when
land was devised, to secure delivery of seisin in court. From this
source the borough court derived those powers which it was able to
exercise when, in the thirteenth century, * probate ' first began to be
heard of. By that time land which was not burgage land had ceased
to be devisable, and the ecclesiastical courts, as if in compensation,
obtained probate, with jurisdiction in testamentary matters. The
ecclesiastical control failed of completeness in so far as the borough
court, having never lost sight of the old EngHsh * cwi^e,' sought to
develop a probate in the limited sphere of the burghal devise, and
retained control of the suits concerning devisability of land. Indi-
rectly, too, the power of the borough court was strengthened by the

^ Luchaire, Communes, p. 52, deals bade the serf to make a will, and shows
with the ' mainmorte ' in the French how it was gradually excluded by char-
boroughs, which gave the lords power ter.
to take a serfs, goods at death, and for-

WILLS CXXxix

fact that, when chattels were bequeathed with lands, a record of the
whole will was kept by the borough court.

The Calendar of London Wills begins in the year 1258, and in
that year the writer of the ' Liber de Antiquis Legibus ' (p. 41)
shows that the Londoners were making rules on the subject of the
effect of probate in their busting. The ground was not resigned
by the ecclesiastical power without a struggle. An ecclesiastical
Council of Lambeth in 1261 proposed to inflict penalties on laymen
who proceeded to the probate of wills, and the Council of London in
126^ forbade the admission of an executor to j)rove a will unless he
renounced formally the privilege of his lay court ; these decrees were
clearly directed against the London citizens, and perhaps against
others. The royal support (1268) enabled the London busting to
keep its probate of the burgage will. When, in 1342, the Council of
London forbade laymen to take probate, probate of lay fee (the
devisable burgage) was excepted.^ At Norwich in 1311 '^ a will was
disputed on the ground that it had not been enrolled or recited before
the bailiffs, and seisin had not been delivered by the bailififs, as
custom required.^ The jurors found against the custom, and reported
that, about sixteen years before, an ordinance had been made by the
men of the town, which required executors to come before the bailiffs
and there prove and enrol the will, but there had never been
compulsion to do this. In the custumal of date 1306-11 (c. 18)
it is laid down that until probate had been made in full court the
executor had no administration of a tenement devised. An undated
statute in the London Libei^ Ordinacionum f. 172 h (about 1300) ruled
that no one could be secure of a tenement devised unless the will
were enrolled.

The rules of the Cinque Ports show the high-water mark of the
borough control of devise. Here, by custom, the officers of the
borough intruded their presence on the testator even at the making of
the will, if the testator intended to devise land. In such case, among
the pious uses w^hich the testator might be called on to remember,
gifts to the borough w^ould rank with gifts to the church. At Ford-
wich the mayor, bailiff, and jurats were to be present at the making
of the will, and if all could not come, then three of them, that they
might prove the will before the community ; in this way they became

^ Caillemer, Exec. Test. p. 675. (R.S. p. 556), on the custom of London

^ The case is quoted in the London that tenements remain in the hand of

Liher Ordinacionum, f. 233 b. the city until execution be had upon the-

'' Cf. Y.B. 18 Ed. III. Hil. PI. 25 devise.

Cxl INTRODUCTION

official executors. A nuncupative will of the purchased lands was
good if made before the mayor and two jurats.^

Nevertheless, in spite of traces of ambition in some of the boroughs,
a true probate in the borough court was not destined to be achieved.
In London by 1419 (II. p. 195) wills could be pleaded that were not
enrolled, and the enrolment was no longer even called ' probate.' No
probate was required to establish the will under the statutes which
eventually made land in general devisable. But the borough probate,
such as it was, continued to be acceptable for some time,^ and in
1587 the burgesses of Leicester sought to get an acknowledgment of
the ' mayor's probate ' included in their new charter.^

Testament of Personal Property, — The borough court could not grant
probate of the testament which bequeathed personal property ; this
belonged to the ecclesiastical power. But in two directions the
borough court secured a measure of control : through the borough
wardship, which created a security that the children's share of
legitim should be paid, and not encroached upon by the ' dead's part,'
and through legislation on the subject of the priest's mortuary or
corpse present. Long ago the lord and the priest and the kin had to
come to a settlement of their rival claims to the dead's part, which,
as we may believe, had at one time teen burned or buried with the
dead. The claims of lord and pr'est w^ere acknowledged by the
bequest of a * principal,' the best and second-best horse, or other
animal, if there were no horse, or the garments of the dead,* that
is to say, those things which had been of old the ' grave's part.' ^
At Catterick in Yorkshire,^ by custom, the priest took from anyone
who made a will a quarter of the chattels, thus reducing the three
legitim shares to quartsrs. At Peterborough, the abbot (as spiritual
and temporal superior), early in the twelfth cantury, obtained an
agreement from his knights by which a third of the whole substance,

^ There were similar rules in the made it a condition of one of its leases

Continental towns. Maurer, iii. 568; that the tenant on his death should give

Pauli, Abhandl. aus deni lilbisehen a moiety of chattels * movable and im-

liechte, lii. 202. movable ' belonging to his dead's part,

117-^1 ^^' *^^ Bristol Great Boole of 'nomine testament!,' and saving the

Wills, edited for the Bristol and Glouc. right of the mother church. Coucher

Arch. Soc. Booh of Kirkstall, p. 176. Similarly

^ Records of Leicester, iii. 235. Cockersand Abbey made it a condition of

* Heusler, i. 142, on the lord's claim a lease that on death of the tenant a

to the best garment. The priest claimed third of his substance went to the abbey

it m England if there were no animal. as 'rehef,' ' testament ' to the mother

° Brunner, Theilrecht, Savigny church having been duly made. CocJcer-

Stift. Germ. Abth. xix. p. 108. sand Cartularv, p. 1047.

« Ahh. Plac. p. 235. Kirkstall Abbey

WILLS cxli

with horses and all military clothing and equipmsnt, were given at
death to God and St. Peter.^ At Bury ,2 the abbot, again as spiritual
and temporal lord, received the horse, or perhaps rejected it, as in the
case of the man ' suspect 3d of usury,' ^ who was guilty of disposing
by will of too small a part of his substance in ' pious uses.' The
abbot in this case took upon himself the distribution, and showed
that be^iuests to wddow and children, and to at least the poorer
kindred, were reckoned as bequests to ' pious uses.' In order to define
with precision the priest's claim, and to leave the tsstator fres to
follow the pious use of bequeathing his share to his family, the borough
custumal, as at Torksey, contained a statement of the precise limits
of the priest's share.

Executors. — The decree of many ecclesiastical councils^ that
executors should not be allowed to purchase the testator's goods when
sold for the profit of the soul, for fear of a fraudulent lowering of
price, was enacted at Torksey (II. p. 198) on borough authority. If
the executor infringed the rule, the bailiff was to effect the sale in
the executor's place. That the borough officers took over an official
duty as executors in some casss has already been noted above.

In treating of the executors, too, another interesting point comes
out in the Torksey custumal (II. p. 198) which show^s that delivery
of seisin from the executor was there expected, and arrangements were
made for delivery from the bailiff if the executor failed to give seisin.
This is contrary to what Littleton (sec. 167) states to be the rule of
the boroughs, and on the strength of his statement it has been
assumed that the English devisees entered of their own authority.

Intestacy.* — We have seen that the will was the outcome of
privilege, and that the consent of the lord was needed to render the
privilege secure to his burgesses. Without it the tenant was between
the upper and the nether millstone, inasmuch as intestacy was as
full of danger as will-making. There was risk that his lord would take
as forfeit all the intestate's substance,^ or at least take as forfeit more
than a mere heriot ; for the goods were so far ow^nerless that the duty
of distributing them fell to the lord. According to the law of
Cnut, II. 70, he was to distribute the property * very justly,' taking his
heriot, fixed by the same law, and giving members of the family their

^ Sparke, Hist. Burg. Scrijat. p. 67. Moore, Privy Council Cases, v. 434.

- J. de Brakelond, p. 67. * The aethe of Cnut, IL 70. The

' Caillemer, Execution testamen- lord's position was especially strong if

taire, pp. 607-11. the tenant died without issue. Heusler,

■* See Gross, Medicsval Law of In- i. 138.
testacy, Harv. Law Bev. xviii., and

Cxlii INTRODUCTION

due shares. The property was the lord's, as Coke says, ' secundum
quid,' not ' simpliciter '; and throughout we are left in doubt how far
the lord's duty was magisterial and performed through his court, or
purely seignorial. He was placed apparently in exactly the position
which the Church was eventually to take ; he was administrator of an
informal trust, a distributor without a beneficial interest, or at least
only a restricted interest, but accountable to none.

Whenever the King was himself the * chief lord ' he could take as
lord the intestate's chattels : thus he did in the eleventh century at
Hereford (II. p. 75), That he ought to have regarded himself as
subject to Cnut's law, and that, like other lords, he made for himself a
beneficial interest where none ought to have been, is implied by the
promise of Henry I.'s charter, in which he bound himself to amend
this matter. Dealing with those of his tenants who died intestate by
misfortune, he left the administration to the wife, children, relations,
or liegemen, who were to distribute the goods for the benefit of the
dead man's soul. A text of Glanvill (vii. 16) seems to show that this
promise was not kept by all lords, for he speaks of the intestate's
chattels as falling to the lord, and makes no mention of the lord's
duty of distribution.

Thus far the laws discuss only the treatment of men who have
died intestate by reason of a regrettable but not a criminal procras-
tination. It remains to consider the case of the outcast from the
Church, for it was here that the King's claim came in, as representing
that of the State. Under the influence of the Church, an opinion was
growing up that those who died both intestate and unconfessed were
guilty of a form of spiritual suicide which forfeited all hopes of
redemption. It was therefore, in the opinion of the lords, no longer
in such case their duty to distribute the intestate's goods for the
benefit of his soul, the soul having destroyed itself. The question
then arose, who was the lord of these chattels? On the analogy
of the usurer's and suicide's goods, the felon's goods, and the right
to certain kinds of * waif and stray,' the King might establish a claim,
but this was not to be done without considerable conflict with the
mesne lords.^ Where there was an accidental intestacy, the result
of sudden death, not in obstinate and desperate resistance to the
Church like the intestacy of the excommunicate, the Church also had

^ The suicide's case is not discussed give them up to the king's almoner. At

in our borough custumals. In London Leicester, in 1596 (Becords, iii. 335),

the sheriff in the fourteenth century the borough took them, but the almoner

seized the suicide's goods, but had to claimed them (iii. 184).

WILLS cxliii

opportunity for control. Already in Henry I.'s day the distribution of
the intestate's goods was undertaken ' for his soul ' ; of old the
canons had required that the bishop should intervene to see that
the wishes of a dead testator were fulfilled, and where there was no will,
the ancient association of the ' dead's part ' wdth his happiness in a
future state readily converted the dead's part into a ' soul's part *
which called for a similar ecclesiastical intervention.

Before Magna Carta, which temporarily settled the claims of the
King, lords, kindred, and Church, the lords of the boroughs had been
by charter resigning to the burgesses their right to control the
distribution of the intestate's chattels, and to take a forfeiture of the
same. Only at Preston the right to a forfeiture of the excommunicate's
goods was distinctly reserved (II. p. 76), though whether these fell
forfeit to the lord of the borough as landlord or as king is not
certain. At Preston, provided there were no excommunication and
therefore no need for severity, the wife and heirs were to succeed
' freely ' to both lands and goods, and, by the advice of the priest and
'neighbours,' the chattels — that is, the dead's part of the chattels—
were to be spent ' in alms.' The more usual phrase ' pious uses '
certainly included, at least in the twelfth and thirteenth centuries,
distribution within the family, for charity began at home.^ The men-
tion of the neighbours, like the mention of the ' liegemen ' in Henry I.'s
charter, points to a distribution made in court. The word ' vicini '
is constantly used as an alternative for * burgenses.'

The various schemes of compromise proposed at the end of John's
reign show how much division of opinion there was on the subject of
the proper treatment of the intestate's chattels. The Articles of the
Barons put the distribution with the next of kin and next friends by
the view of the Church. Another draft, which in the latest opinion,
comes between the Articles and the Charter,^ puts the distribution
with wife, children, kin, and next friends, without mention of the
Church, though the distribution was to be ' for the soul.' Magna
Carta, c. 27, followed the terms of the Articles, but in the confirma-
tions the clause was dropped. Bracton, however, maintained the rule
of Magna Carta in somewhat less general terms, as he required the
intestacy to be the result of sudden death, thereby apparently excluding

^ The king, in 1231 {Close Boll, p. on the ' Unknown Charter of Liberties,'

7), declares it ' justius et magis pium ' The point above noticed is overlooked;

that the kinsman of an intestate should it goes to substantiate the main argu-

receive the chattels. ment of the article.

H. W. C. Davis in E.H.B. xx.

Cxliv INTRODUCTION

the case of the desperate intestate.^ The continued necessity for
a clause in the borough charter admitting the intestate's kinsmen to
the succession, unhindered by the lord's claims, shows that the
lord's control was still maintained in some seignorial boroughs on the
old twelfth-century principles, not perhaps as a right to total for-
feiture of the chattels, but as an opportunity of taking more than the
customary heriot or relief as a price of admitting succession to the rest
of the goads. The weakness of some of the boroughs in this respect may
have been due to their unwillingness to admit the ecclesiastical power,
which elsewhere ousted the seignorial power in this matter.^

The Dublin burgesses in 1268 sought ineffectually to exclude all inter-
ference of the Ordinary w^ith the intestate's goods, which they said were
to be handed over to the royal treasury (fisc), in this case possibly the
borough exchequer (II. p. 200). The only conspicuous cases of borough
achievement in securing control of the administration of the intestate's
goods are cases derived from the Cinque Ports (II. pp. 200-1), but Bury
St. Edmund's in 1327 (II. p. 150) had peculiar rights, under a charter
which was revoked, in the case of the borough's intestate wards. At
Fordwich the mayor and jurats administered without any inter-
ference from the Ordinary (II. p. 200), though the disposal was to be
for the welfare of the dead man's soul. At Dover the mayor seques-
trated the chattels and administered for the dead and for the living as
Ordinary ; he determined the disposal of the dead's part, administered
the widow's and bairns' parts, or, if none were required, arranged for
for the disposal of the whole. He even claimed the Ordinary's power
to compel an executor to account (II. p. 201).

As in the matter of wardship, so in control of the intestate's goods,
borough officers took up rights and duties which might have fallen to the
kindred. The bond of community stood for the bond of kindred. The
burgesses's next friends were his ' vicini.' At Bury St. Edmund's the
goods of the intestate w^ard were administered by the * alderman and
community ' for the soul of the dead, by giving them to the brothers
and sisters, if there were any ; and if there were none, they were
divided among the * poor next of kin ' (11. p. 150). In 1327 the bur-
gesses of Bury kept to the old principle, that to pay the debts and

^ As against the theory that there rate ' but accidentally intestate, and per-

was a royal prerogative claim, we may haps also that he did not owe debt to

note that where examples of a seizure of the king.

intestate's chattels by the king can be '^ In Edward I.'s reign the mag-
adduced, as in Henry III.'s reign, they nates of Wales, in the Llandaff diocose,
prove no royal prerogative, unless it can held out against the bishop's claim suc-
be shown that the intestate did not hold cessfuUy. H.E.L. ii. 351.
of the king in chief, did not die ' despe-

WILLS Cxlv

give the rest ' in usus proximorum indigentium ' was a distribution * in
pios usus.'^ In other cases it was necessary at Bury to obtain letters
of administration from the Ordinary, but for them no charge might be
made (II. p. 98). On the subject of the fate of the kinless intestate's
chattels the custumals give little direct information. The case is
specially discussed only in connection with the London claim to sell the
lands of a kinless bastard, and administer the proceeds for the good
of his soul (II. p. 162). But the London claim was not made good,
and the land escheated to the King. The borough administration of
a kinless intestate's chattels may, however, be discovered in the
Cinque Ports. The case of the kinless intestate who was a foreign
merchant is expressly considered in the Sandwich custumal; after
efforts had been made in vain to discover the dead man's kindred, the
goods were disposed of by the borough officers in charity. Such was
the rule in some German towns in all cases of heirless intestacy : ^ in
some the rule applied only to the * exul ' or ' advena ' ; ^ in others,
the * regia potestas ' took both the lands and the chattels of the heir-
less.'^ Domesday Book records that the King had the succession to all
strangers who died in Oxford having a house there, and leaving no
kin (II. p. 76). The King's claim to the inheritance of strangers, the
' albani,' who come from ' elsewhere,' was an old one. King Egbert
granted to the monastery of Abingdon in 835 a charter which con-
tained the clause, * de hereditate peregrinorum, id est Gallorum et
Brittonum et horum similium, ecclesie reddatur,'^ and the borough
court in some cases seems to have taken over a royal right in respect
of this 'jus albinagii.'

10. Borough Courts.

The Borough Moot.^ — Once,'' twice,^ or thrice^ a year, according to
the custom of the place, a ' great court ' was held in the borough ;
sometimes at a fixed time, without summons, ^^ or by a general

' Ann. Burton, p. 404; Selden, 184).
Tracts, p. 20; Jocelin of Brakelond, ° Kemble, Cod. Dipt ccxxxvi (not

pp. 67-8. On the later claim of the starred).

Church to convert the pious uses into a ^ Called Burhmote, Burhmanmote,

beneficial interest, see Moore, P. C. Burwaramote, Portmanmote, Hundred.
Cases, V. 434. ^ Torksey, Tewkesbury, Bideford.

^ Freiburg-im-Breisgau, c. 2 ; Berne, ^^ Taunton, Bridport, New Malton,

51 (Keutgen, UrJcunden, i.). Lincoln, &c. Thus Leg. Hen. 7. 4.

' Brunswick (1188), c. 11 (Keutgen, ^ London, Preston, Whitby, L.Q.B.,

1- 178). &c. Thus Eadg. iii. 5 ; Cnut, ii. 18.

* Liibeck (1188), c. 8 (Keutgen, i. ^^ II. p. 50.

VOL. i[. i

Gxlvi INTRODtrCTION

summons ; ^ sometimes (as at Torksey) immediately after the great
Michaelmas county court. The great courts were called^ placita,'
* placita principalia,' * chief folk-moots,' ' instituciones,' * capitales
curiae,' ' magnae curiae ' ; to these courts all the burgesses, whether in-
or out-dwellers, owed suit : no suit was due to the courts held between
the great assemblies, except from those who received special summons.
When occasion arose a * full hundred ' could be specially summoned
by horn-blowing, to determine, in the boroughs which had power to
deal with the ' causae majores,' all pleas touching life and limb, and
pleas concerning land ; also when there was ' doubt of judgment,' to
afforce the court (II. pp. 42, 52-3). King Edgar, III. 5, ordered
the shire court to be held twice a year, the borough court thrice, and
the hundred court as had already been ordered. What had been
ordered (Hundredgemot 1) was that the hundreds assemble every four
weeks, or, as Edward the Elder, II. 8, ordered it that every ' gerefa '
hold a moot once in four weeks that every cause may have a term set
to it. No distinction between greater and lesser courts is definitely
marked until the ' Leges Henrici Primi ' first show that we may
expect to find a shire-court sitting more often than twice a year, and a
hundred court meeting with special fulness twice a year. The
meeting of the hundred court * with special fulness ' (88. 1), to deter-
mine the grouping of frank-pledges, may fairly be contrasted with the
hundreds in which a * penuria judicum ' (7. 5) is anticipated. The
compulsion to attend the monthly court cannot have been general if
a lack of suitors to give judgment was anticipated. There could be
no such lack at the great meetings, which afterwards became known
as sheriff's tourns.^ The county court was held more often than
twice a year if need were (51. 2),^ but it does not follow that there was
the same compulsion on all the suitors to attend the extra meetings
as there was to attend the 'generalia placita' (7. 7, 1). Upon
the Continent we know that, from Carolingian times, the Germanic
system divided the judicial assemblies into those which were specially
ordered, held at frequent intervals, by special summons, and those which
were not ordered, but held at great festivals, by general summons,
and under severe penalties for abstention. It is a matter of specula-
tion to discover how the change (if change there were) was brought
about in England, but that 'placita jussa ' and 'injussa' must be

^ II. pp. 50, 55. perhaps D.B. i. 179, ' ter in anno ad

2 The contrast between the two law placita et ad hundret.'
days and the ' other days ' of the hun- ^ h^e.L. i. 536, where the clause

dred court is brought out in the Custu- of Mag. Car. 1217, c. 42, is explained m.

mala of Battle Abbey, p. 136. Also this way.

BOROUGH COURTS Cxlvii

distinguished seems fairly certain as regards both the shire and the
borough, and also as regards the hundred, whose ' specially full ' meet-
ing twice a year cannot well be accounted for in any other way. It is
sometimes assumed that the confirmation of Magna Carta, c. 42 (1217),
multiplied the suits to the shire-moot six-fold, while reducing the
general suit to the hundred from once in three weeks to twice a year.
Similarly it is assumed that the order of 1234 ^ ordered a return to
the three-weekly suit. But we doubt if either rule was so complete a
novelty as from its wording may appear. It is true that Henry III.'s
order shows that the sheriffs needed some explanation on the subject
of the difference between the two great hundreds with general sum-
mons, and the intervening hundreds with special summons, but the
whole set of instructions seems rather intended to educate the sheriffs
on the subject of the opportunity of taking fines, and also the oppor-
tunity for taking inquest of royal pleas, than due to sudden revolutions
in the whole system of suit to the local courts.

The custumals as a rule afford little evidence on the subject of the
part taken in the giving of judgment by the officers or suitors of the
court. In the twelfth century it was the duty of the London alder-
men to decide whether, in a case of battery or affray with bloodshed,

* the King ought to have the plea or the sheriff : ' ^ that is, whether the
case was of sufficient gravity to amount to a King's plea and require
the presence of the justiciar, or not. Again, it is stated that, according
as the witnesses speak, the aldermen * give right ' (II. p. 4), and that
without mention of the sheriff.

The ' four benches,' known to the shire and hundred courts, are
frequently referred to in records of the borough court.^ In the
London busting of the twelfth century the ' probi homines ' sat on four
benches presided over by the sheriff (I. p. 48), and in 1291 the
sheriffs' court had * assessors of the four benches.' ^ At Cork (I. p. 45)
it was ruled that those sitting on the four benches might not plead
for either party, but must go ' without the bar ' for this purpose. The

* boni homines ' upon the * four benches ' did not, judging from the
silence of the early London custumal, * give right ' in the busting.

^ Close Boll, 1234, pp. 528-9, 592-3 ; 664 ; E.H.B. x. 732, xvii. 489, note

Ann. Dunstap. i. 140-1. 45 ; Essex Arch. Soc. viii. ii. 189 ; Ath.

^ E.H.B. xvii. 493. 19 Oct. 1895, p. 533. Brissaud, p. 560,

^ Maurer, iii. 591, cites examples of dismisses the ' four benches ' as'preten-

the ' four benches ' from many German dues ' on the strength of Fustel de Cou-

towns. See the Flemish evidence in langes's criticism of an unfortunate

Warnkoenig-Gheldolf, Hist, de Fl. ii. blunder. See Brunner, D^B.G. ii. 220,

123 sqq. For England see Brand, note.

Newcastle, ii. 149; H.E.L. i., 543 ii. ^ Riley, MemortaZs, p. 27.

i 2

cxlviii INTRODUCTION

The right of deeming dooms, if once theirs, had passed to tbe
aldermen, who formed an ' echevinat,' or permanent group of judges,
whose office, whatever it was originally, came in some cases to
be treated as a royal service. The aldermen, chief officers of the
London wards, in 1272 denied the claim of the people to make
elections (in the * folk-moot ' or full meeting, held three times a year)^
on the ground that they, the aldermen, * reddunt omnia judicia in
placitis metis in civitate.' ^ In other towns it was upon a body of

* jurats ' that similar powers fell. The jurats or aldermen might
become the brethren of * a single bench,'^ a presidential bench, while on
the * four benches ' sat men who were * assessors of the court.' It was

* upon the record of the four benches ' of the sheriffs' court that a
plaintiff and defendant put themselves in London in 1291, and eighteen

* assessors of the four benches ' gave the verdict.^ These ' assessors '
perhaps may be compared with the ' buzones ' ^ of the county court ;
in the list of names of the assessors, given in the London record, we
may note that the names of some professionally trained lawyers
occur. The forming of an inner circle of burgesses connected with the
court in some special way seems to be indicated by the passages in
the Northampton custumal, which tell of the 'probi homines de
placitis ' ^ (I. p. 245), or the * legales homines de curia ' (I. p. 273), as
assisting the bailiffs in taking views and witnessing seisin. In the
twelfth-century Preston custumal the phrase ' burgenses de curia ' is
repeatedly used, but not in such a way that the ' burgenses de curia '
can be differentiated clearly from the 'burgenses de villa.' From
Kilkenny (II. p. 43) we obtain the knowledge that there in the
fourteenth century the judgments were to be rendered by the
reeve and four burgesses, * suitors ' of the hundred. In the Scottish
rules (p. 42) the possibility that the judge may postpone judgment

* ex debilitate curie et penuria consilii ' is considered ; an old
Scottish translation renders the * penuria consilii' by ' skantness of
soytouris.'

False Judgment. — An interesting Scottish passage on the challenge
of false judgment (II. p. 19) tells us that if the judgment is to be
challenged by the unsuccessful suitor, he must make his challenge
without turning on his heel : that is, immediately, before he has turned
his face away from the judge. This rule contains the archaic

^ Liher de Antiq. Leg. p. 150. 3 ^n^y^ Memorials, p. 27.

^ In this way we can explain the ^ H.E.L. i. 540.

single bench of ' scabini ' in the Flemish ^ Cf. E. Mayer, Verfass.-gesch. ii. 229,

courts of ' vierschaaren.' Sickel, Got- on the ' homines de placito burgi ' at St.

tingen Gel. Anzeigen, 1888, p. 628. Quentin.

BOROUGH COURTS Cxlix

principle of the Germanic * Urtheilschelte.' ^ The Scottish rule does
not, however, show that it was still possible for anyone sitting in court
to make the challenge : it assumes that the challenge is from the un-
successful suitor. We are given the forcible words in which the
Scottish burghers ' falsed ' the doom : * This dome is fals, stynkand
and rottin in the self, and tharto I streik a borch, and that I will
preiff.' This carried the matter up to a court of borough appeal, ^
with which the English boroughs were unacquainted, except in the
-case of the Cinque Ports.

London (II. p. 20) was successful in shutting out the royal
method ^ of punishing by means of an attaint the jury that
swore falsely, until in 1495 it was introduced by Act of Parliament.
The London juror's oath was from the twelfth to the early fourteenth
century declared to be only an averment upon allegiance (I. p. 231,
and 11. p. 56), not the oath under solemn *ban.' This promise to
speak truth on the oath of fealty sworn to the King can be found in
the Carolingian forms of the process by inquisition. The distinction of
the averment on allegiance appears to have been a privilege accorded
to those who had ever held public office,^ and here again we get a
suggestion that, at least from the time that the London citizens began
to farm their own bailiwick, every citizen was regarded as in some
sense a royal bailiff. The Londoners tried to secure their privilege
(if we may trust our one authority) by fining to the amount of their
wergild those who swore, on the Gospels or otherwise (II. p. 57) ; but
later on the claim to exemption from the ordinary oath seems to have
been not at all times carefully guarded, though it was generally resus-
citated at times of general inquiry into the municipal administration.
Arnold FitzThedmar wrote with bitterness on the subject of the
indifference of the democratic party to this privilege,^ which * ipsi
miserrimi non perquisierunt.' It was brought forward, probably for
the last time, in the general inquiry of 1321-2.^

Miskenning. — The boroughs slowly changed their allegiance to
formalism in favour of an allegiance to formalism's * twin-sister '

' Brunner, D.B.G. ii. 357 ; For- Memorials, p. 3. But an oath made by

schungen, pp. 346-7 ; Maurer, iii. 749, for the jury ' tactis sacrosanctis ' is given

the charge of false judgment as made on p. 47. Again, Rigg's Calendar of

in the German town courts. the Plea Bolls of the Exchequer of the

2 Frag. Coll. cap. 52. Jews, p. 128, shows the averment on

^ Thayer, Evidence, pp. 143, 146-7. allegiance used in a London inquest of

* Brunner, Forschungen, pp. 233-4. Christians and Jews, 1253. The Lords

^ Liher de Ant. Leg.'^. 32. Marchers' refusal to swear {Bot. Pari. i.

•^ The coroners' juries answered on 171) was probably a claim to the aver-

their fealty (1275) as shown by Eiley's ment on allegiance.

cl INTRODUCTION

freedom. Gradually the doctrine ' qui cadit a sillaba, cadit a tota
causa,' came to be regarded as ' dura consuetudo.' ^ The strict
formaHsm that had done good service in the past, and that had been
strong to uphold law against seignorial or judicial force, was a creed
outworn in the borough court before it passed away elsewhere. As
in many other matters, some boroughs were singularly early and
others singularly late in casting off the bondage to archaic doctrine.
Allegiance to the old system, which made the form of pleading
substantive rather than adjective law, remained strong in some
places, perhaps because it was regarded as the best safeguard against
malpractice, perhaps because the fines resulting under the old scheme
were too valuable to be foregone.

It was an ancient principle that the word once uttered in
court could not be withdrawn. Whoever said the wrong thing, or
failed to observe the forms precisely, could not recall what he had
said or seek to improve upon his statement. His opponent, or the
judge, or any member of the court could use against him his
* mislocutio,' his ' stultiloquium,' his * miskenning.' It was right in
law to * take occasion ' against him on that point, to take him * at
his word ' ; * occasionare,' [ surripere,' ' chalanger ' are the verbs
used, and the action itself was known as a ' cavillatio ' (II. p. 8),
*occasio' (11. p. 127), 'hoquet' (II. p. 6), ' chalenge ' (II. p. 5),
reproof or reproach (II. p. 3).^ The mistake made in the plea, if
detected by a member of the court, was on his challenge submitted
to judgment, to give the court an amercement; or the opponent
himself could take the speaker at his word, and secure for himself a
judgment thereon.

The connection between miskenning and an amercement by
the court is made clear in the custumals, which use the word both
for the fine and for the cause of the fine. That the fine was heavy
in London appears from the observations of the author of the
Leges Henrici concerning * mislocutio ' or * miskenning,' ' que magis
inhorruit in Londonia.' It was already a terror of the past, and that
before ^ Henry I.'s charter reaffirmed its abolition. But something
more than the fine was gone. The thing itself was prohibited. There
could be no challenge of the mistaken pleader. Beaumanoir was

^ Statute of Wales (1284), c. 8; would seem therefore that 'bauchle'

Thayer, Evidence, p. 142. must have had a legal significance. Cf.

"^ ' Eepreif ' and ' bauchle ' were for- Nicolson, Cumberland and Westmor-

bidden in the March assembly, according land, i. p. xxi ; Jamieson, Diet. ; N.E.D.
to the Leges Marchiarum, except by ^ Die Gesetze der A.-S., Lieber

leave of the wardens of both realms. It mann's note, p. 561.

BOROUGH COURTS cli

saying in France in the second half of the thirteenth century, that
'on juge selonc ce qui est dit, non pas selonc les ententions,' but
the London rule counselled more reasonable views.^

After the abolition of the detested ' miskenning,' there were still
some severe rules in London, which made it necessary to be very
careful in pleading. The plaintiff in the London busting who named
his witnesses at the wrong moment, before the defendant had made
his formal negative, ' lost ' his witnesses, and they might not be
brought forward (11. p. 4). Other places were still slower in
accepting any change from the old formalism. The defendant in
Leicester was, until 1277, compelled to answer with an absolute
denial, the ' Thwerthutnay ' (II. p. 6), or he was 'undefended.'
His breach of form rendered him * svarless,' * non defensus,' and
therefore guilty. ^

Bracton required that the appellee should deny * de verbo ad
verbum,' but Britton admitted * qe il defende les motz de la felonie en
gros ' : a slip in a syllable would no longer render him 'non defensus.'
In 1285 the Londoners were content if either party in a suit set
forth the substance of his case (IL p. 1), and many boroughs
accepted this doctrine. The rigour of the general law was modified
by the statute of jeofail, 36 Ed. III. st. 1, c. 15 : no man was to be
prejudiced by the ancient terms and forms of the declarations,
provided the matter of the action were fully shown and declared in
the writ ; but it is reserved for modern times to claim that the
honest suitor will be uninjured by any mistake of a technical kind
which he happens to have the misfortune to make.^

It was before all things necessary to keep calm in court, as the
opponent, and even the officers of the court, sought opportunities to
excite the party to anger and hasty utterance. It was ruled at
Dublin (II. p. 7) that a polite reply to the bailiff would make the
bailiff's accusations nugatory : for if a bailiff, out of spite against one
ill-informed in the law of the city, accused him while he was before
the court of doing or saying something he did not intend, he could
not be put to the oath upon this issue if he merely replied, ' Sir, you
may say your will as bailiff.' But if he made denial, he was com-
pelled to make the oath with six ' hands,' the charge being an official
one. Against a fellow-burgess he purged with two compurgators.
There were recognised ways of averting the dangers of the verbal

^ But the sheriffs ' mercy ' for not ^ Brunner, Forschungeuy p. 276.

denying ' toUage,' eo nomine, savours of ^ Dicey, Law and Public Opinion

the ' miskenning ' (II. p. 5). p. 208.

Clii INTRODUCTION

formulas, perhaps provided in the first instance in the royal courts
by the ' licentia pulchre placitandi,' or beaupleader. From the
thirteenth century onward, statutes forbade the sale of these licenses.
In the Cinque Ports the party, by custom, was allowed to ask the
leave of the mayor to make his count or defence without * reproof or
reproach ' (II. pp. 3, 8), a rule resembling the custom of Lille,
* congiet de parler sans entrepresure.' ^ Winchester and Eye, how-
ever, in the fifteenth century denied this leave to any who pleaded
for themselves without a serjeant (II. pp. 3, 4), a rule which com-
pelled most men to use professional aid. In matters of legal
difficulty it was also possible to crave counsel of the court as to the
next step in procedure (I. p. 296).

The Dublin custumal (II. p. 2) which proposes to tell us what
miskenning is, if we wish to know, darkens counsel by the inter-
pretation which it gives. There seems to be confusion between the
heavily punished ' mislocutio ' and the right to amend the count or
other formal words, a right which was given to anyone who obtained
leave to have counsel. The Dublin writer speaks of the defendant's
rising and leaving the court to imparl, or take counsel with his
friends, as a * cause of miskenning,' but there was no * miskenning '
in the true sense of the word here, unless perhaps the defendant
failed to ask leave ^ to take counsel. To go out without leave would
lose him his suit,^ and he might be in danger further if he took
counsel before the formal denial instead of after>

Counsel. — The subject of the leave to amend brings us next to
the subject of the position of counsel in the borough court. The
custumals contain some interesting passages on the subject of the
use of counsel and attorneys, which bring out some characteristic
archaic traits. We have to distinguish first the countor, pleader,
Serjeant, avou6 (II. p. 16) or advocate, the mouthpiece of a party
who is present, from the attorney appointed by royal grace as repre-
sentative of one who is absent.

The aid of helpers who would whisper advice as to the course of
procedure was admitted, and admitted in London and the Cinque
Ports even in cases of accusation of felony, in which the Leges
Henrici and English law till 1836 denied counsel.^ Every prudent

1 Brunner, Forschungen, pp. 350-3. taken after denial (II. p. 5).

Cf. II. p. 6. 5 This civic rule, however, may extend

' Brunner, Forschungen, p. 319. only to the appeals. For the rules of the

On going out to imparl or take counsel, German towns which al lowed counsel

see Leg.^ Hen. 48, lb, c. in all cases, see Maurer, iii. 665. At

* Leicester required that counsel be Bayonne (Balasque, ii. 398) the man

BOROUGH COURTS cliii

man came to the court with friends who could give him counsel.
By leave of the court the party could go out and discuss his
next step with counselling friends ; also by leave of the court he
might name, or ask the court to name, some one to speak for him,
who, when called upon, might not refuse. A sHp on the part of this
* forespeaker ' could be corrected by the party spoken for. The
forespeaker would be fined for his mistake,^ but the party would suffer
no penalty. This right of amendment, where a man pleaded through
counsel, is referred to in the Leges Henrici (46. 3). The Leicester
<justumal (II. p. 6) brings out the point that the ' amendment ' could
only be made once.

The rule that the judge should select counsellors from the suitors
of the court to help the widow and orphan and the helpless was
an ancient one.^ The Fordwich custumal (II. p. 8) requires that the
Mayor should give counsel to foreigners and persons ignorant of the
language of the court : ^ the Hereford custumal (II. p. 16) required
the bailiff and steward to help the widow or orphan with legal aid
in court or out of court.

In the old law it had not been thought unsuitable that those
who had given counsel should also sit as judges, but when the court
began to consist of a select group of lawmen, the giving of counsel
by these judges was discouraged. The aldermen, or jurats, who sat
on * the bench ' were forbidden in some boroughs to give counsel *
(ILp. 12).

There was considerable variation in the customs which encouraged
(II. p. 3) or discouraged (II. p. 15) the use of professional pleaders.
At Norwich (1306-11) the countors were sworn in at Michaelmas,
and were a professional body (p. 13). In many boroughs there was
unwillingness to allow the town officers to become professional
pleaders, lest in serving another master their interest should be divided
from that of the town. The pleaders were sworn to support borough
■customs.

The London counsel or attorney guilty of collusion in a false
action, or one invented to annoy, was punished in 1394 only by a
year's silence in court (II. p. 14) and not under the severe rule of
Westm. I. c. 28.

accused of felony had no counsel for his ^ Brunner, Forschungen, p. 355.

principal defence, only in developing his ^ The pleadings of the London city

exceptions. The history of counsel in court were ordered to be made in English

the accusation of felony is treated in in 1356, six years before the statute.

Thayer, Evidence, pp. 159-161. Cal. Letter Boole G, p. 73.

^ See the mention of a disavowed ^ So also in the London Liber Ordi-

pleader (II. p. 12). nacionum, f. 222 b (undated, circ. 1300).

Cliv INTRODUCTION

Attorneys.— Hhe attorney/ who acted as the representative of the
party in his absence, could originally be appointed only by leave of
the King, or before the King's justices. The Norman law gave the
judges of all record courts power to authorise attorneys, but insisted
that the appointment must be in the presence of the parties, for the
party who had won a suit against an attorney might lose his
advantage if the party represented could deny that the attorney was
of his appointing. Only in the presence of the duke could an
attorney be granted in an adversary's absence, as the duke's witness
was * record enough.' Similarly the English law dispensed with the
adversary's presence, on the ground that the record of the King's-
court could be vouched. In courts that were not courts of record,
the appointment of an attorney came to be allowed before officers
who were not justices, wherever the process began with a royal writ^
or wherever the court had record for special transactions, but where
this was not the case a royal writ of attorney was required.

In the boroughs the court's power to sanction the appointment of
attorneys is in most of the texts discussed only in connection with
pleas concerning land.^ The earliest statement is one touching the
attorneys of foreigners in London, 1221 (II. p. 10). The foreigner
defendant in a plea concerning land, and seemingly in no other plea,,
could be allowed to make attorney, but not without the King's writ.
The London ' Liber Ordinacionum,' f. 222 b, gives a provision that all
tenants impleaded in the city, whether resident or not, could make
attorney, by writ or without writ, ' which is not yet given to demandants,
lest they find it too easy to disturb the citizen by means of attorneys.'
Demandants, native and foreign, received the privilege in 1268-
(II. p. 10).^ An Ipswich rule of 1291, treating of proprietary actions,
gave a wide liberty to the bailiffs to grant attorneys to either party,
whether the plea be begun with or without writ, in the absence of the
adversary and even outside the court, the bailiffs being entrusted with
the record of the attorneys. They could also take the appointment of
an attorney by a sick man unable to attend the court. This rule, it
may be noticed, involved a different principle from that given by
Glanvill for the compulsory appointment of a responsalis * vi judicii"
for the sick accused.^

^ Brunner, Forschungen, pp. 389- in court without writ.
443. 3 But if made in the busting, attorney

^ Besides the rules in II. pp. 10-16, must be made in the presence of the ad-
see also I. p. 253, on attorney with or versary. Liber Ordin. f. 222 b-223 a.
without writ in the presence of the ad- ^ Glanvill, i. 12, § 2 ; xi. 6, § U
versary, and I. p, 261, on attorneys made Brunner, Forschungen, p. 429.

BOROUGH COURTS clv

At Dublin, about the same time, the bailiff's record of the de-
mandant's attorney was declared insufficient : the defendant could
challenge the attorney to produce his warranty and if he only vouched
the bailiff to warrant and had no royal writ of attorney, the defendant
could appeal to the King's justices.

It is observed at Leicester (II. p. 11) that the original custom allowed
attorney only to the plaintiff, and only in the defendant's presence.
Henceforth (from about 1277) either party might make attorney, and
might do so in the absence of the adversary ; that is, ' in pleas which
may be pleaded by attorney.' Two jurats were to bear witness to
the attorney ' if need be.' Their witness could be vouched as record.

The Lincoln rule brings out the ancient principle that the attorney
represented the party so completely that a ' fieri facias ' could be
executed upon his lands and goods if the party escaped ; and if his
lands and goods did not suffice, he could be imprisoned. But this
rule did not apply if the defendant came into court and there made
attorney ; it applied only to the attorney appointed out of court under
the fifteenth-century statutes.^ If the defendant had appeared, miade
attorney, and then escaped, the sheriff and his officers were to pay his
debt, for they ought to have taken surety for him.

The Punishment of Borough Officers, — With regard to the punish-
ment of officers of the court, we may notice that the Northampton
court, about 1260, would fine a bailiff who released attachments or a
debtor before he had paid, if bribery could be proved by evidence
(11. p. 27). A later version of the custumal, under the influence of
Westm. II. c. 11, made the bailiff pay the debt himself. The borough
court also could entertain an action against a bailiff who took an
insufficient distress, or insufficient pledges. The Cork custom did
not punish the ' naughty gaoler ' so severely as the statute required ;
he paid only Is. in the pound of damages, or, if there were no hope
that the fugitive would ever be recaptured, such higher sum as the
court assessed.

Recourse to the Lmvs of Nature. — In conclusion we may call atten-
tion to the remarkable passages which wind up some of the Cinque
Port custumals (II. p. 59), directing the mayor and jurats to have
recourse to 'jura naturalia ' in matters insufficiently treated in the
custumals : they looked to ' natural law ' as the fountain-head of all
laws and customs concordant with the laws of the realm, and there-
fore as the fountain-head of local custom. Unlike their contemporaries
learned in the laws of England, who were not used, according to
^ Especially 15 H. VI., c. 7. Brunner. Forschungen, pp. 436-7.

Clvi INTRODUCTION

St. German's testimony, to reason what thing is commanded or pro-
hibited by the laws of nature, some town-clerks were prepared to take
this ground, while others, writing, it may be, at a somewhat later date,
conceded the first place to the common law of England.

The * dust on antique time would lie unswept ' if all the objects of
borough ambition had been attained and retained, but, provided the
■dead past be not restored to tyrannise over us, at a safe distance we
may admire its picturesque ruins and half regret the cruel work of
dissolution done by the common law in the name of reformation.
For the sake of uniformity of worship, many quaint rites have been
abandoned ; in the great temple of the common law the side chapels
are altarless and' empty. The justice of the local courts has been
ruthlessly condemned as incompetent, provincial, archaic, unprogres-
sive, unable to adapt itself to a new state of society.^ The old local
justice is * antiquity forgot, custom not known,' because in the system
of national justice the general destroyed the particular, no doubt for good
reason. And yet for the true understanding of the 'jus et consuetude
regni,' founded upon a rock-bed of unwritten tradition, on general
immemorial custom, it may be well to stoop to examine the unworthy
particular. In borough custom we have a neglected series of rocks,
not primary in antiquity, but full of the signs of life, and the extinct
forms which it permits us to handle have a place in the history of the
making of the common law.

The present volume owes even more than my first to the counsel
and criticism of Professor Maitland. The nature and the number
of the errors which have been removed by his friendly hand make it
vain to attempt acknowledgment and even thanks.

^ Sir F. Pollock, Expansion of the Common Law, p. 53.

APPENDIX ON THE SUESISE OF PENT.

Attention has been called (pp. Ixvi-vii) to the fines for rent arrear
which were levied in the boroughs. It may be well to bring together
also the examples of a progressive rise of penalty, associated in some
cases with castle-guard tenures. The Eochester castle tenures were
under a heavy ' sursise ' ^ for non-payment of rent, at least from the
time when service was commuted for rent, in the thirteenth century,
as is supposed. The rent doubled on the return of every tide in the
Medway, so long as it was unpaid, according to a statement of the
custom made at a late date. (Hasted, Kent, ii. 413, quoted by Pound,
writing on Castle-guard, ArchcEol. Journ., 1902, p. 146, and Elton,
Tenures of Kent, pp. 202-3.) Grimm, D.B.A, (ed. 1899), p. 534, gives
examples of this ' Rutscherzins ' payable on ebb and flood in Germany.
The antiquity of the * sursise ' charged on the Dover Castle rents is
uncertain. According to Darrell's History of Dover Castle (1786), p. 43,
Hubert de Burgh first organised the system by which those who failed
to pay rent on the day appointed forfeited double for every day they
omitted. Lyon, History of Dover, ii. 182, describes the manner of the
Dover Castle ' sursises.' On the day fixed for payment a banner flew
from the paymaster's tower, and if any tenant failed to pay before
the flag was taken down at sunset, his rent was doubled, at very short
intervals, or every time the tide in the Channel flowed to the eastward.
Traces of the taking of the Dover sursise are frequent. (Statham,
Dover, p. 302, Bolls of Pari. i. 157.) The system was changed for Dover
by the statute of 82 Hen.' VIII. c. 48, but there was no similar statute
for the Rochester tenures, and an attempt was made in the eighteenth
century to revive the 'Rutscherzins' at Swanscombe. Lambard's
Perambulation, 2nd ed. p. 155, explains that, whereas before time
these Dover castleguard rents were payable at the castle * upon the
pain to double them one upon another infinitely for default, from

^ The Eochester and Dover sursise burgbotam vel brigbotam vel firdfare
may be compared with the passage in supersederit, emendet hoc . . . cxx.s.'
the Leges Henrici, 66. 6: 'Si quis Sursise is neglect, then penalty for neglect.

clviii INTEODUCTION

thenceforth they should be paid to the Exchequer at Westminster
upon forfeiture of the double rent once only.'

Not only the form of the old penalty favours the idea of an ancient
origin. There is a reason for associating the penalty in one instance
with the * warnoth ' (old Norse varna-Sr= protection, ward), of frequent
occurrence in the account of Lincolnshire in Domesday Book. Accord-
ing to a statement of the Abb. Plac. f. 255 (33 Ed. I.) the fee of Middle
Easen/ co. Line, owed as * warnoth ' 30s. at Easter, a rent which doubled
if paid a day late, trebled the next day, and so on till it was paid. The
fee was held of the honour of the Castle of Dover at the time of this
plea, and formed part of the Arsic barony, which owed castle-guard
service to Dover. It is described in Domesday Book as forming part
of Odo of Bayeux's territory, held by Wadard, and, as Mr. Bound has
pointed out, this holding became the Arsic barony.^ Domesday Book,
which mentions the payment of ' warnode ' many times, does not
associate the payment with the Rasens, but a payment of 10s. warnoth
at East Easen is mentioned in the Cal. Inq, P. M, (Henry III.) p. 210.
Warnoth was paid at many places where we can trace no connection
with Dover ; for instance at Welby in Lincolnshire (Line. Assize EoU,
485, m. 35, 9-10 Ed. I., reference supplied by Mr. Massingberd), a
rent of 5s., which, as the MS. explains, doubled daily if in arrear.
Again, at Bratoft Hall, co. Line, in 29 EHz. (Book of Services, cited by
Mr. Massingberd), \d. a year was due as 'warrant (warnoth) rent' on
St. Botulf's day, doubling daily if in arrear.

From these examples it seems reasonable to assume that wherever
we meet with warnoth or ' warnode ' it was paid under these conditions.
Examples of the payment of * warnode ' can be obtained from many
sources from the time of Domesday Book to the sixteenth century, but
space does not allow us to set them out here. All that have been
collected so far are derived from Lincolnshire, but they are distributed
widely over Lincolnshire, and cannot be brought into connection with
any one holding, though they seem to be in Domesday Book very largely
associated with holdings in which Peterborough had at one time or
other an interest. A very similar rent was paid on Peterborough
estates out of Lincolnshire, and was called ' libera wara.' This rent
is explained in the cartulary Cotton MS. Faust. B. III. f. 97, cited by
Vinogradoff, Villeinage, p. 243, note, as a rent paid under the condition

^ The Coram Eege Koll of Trin. ^ j^^^j^^ Journ. 1902, p. 234. Lind-

33 Ed. I. shows the true reading to be sey Survey mentions Middle Easen, held

' predictus Johannes de Nuttel tenet de of Manasseh Arsic. In 1212 it appears

eo in predictas villas {sic) tria feoda,' but in the Testa de Nevill, p. 316 b, as held of

the name of only one viU is mentioned. the honour of the Castle of Dover.

APPENDIX ON THE SURSISE OF EENT clix

that if it were in arrear it doubled on the morrow and so daily. On
f. 117a (Oundle) the rents *de libera wara et aliorum liberorum
tenentium ' are given. A halfpenny or farthing * nomine ware ' appears
to have been often paid on the Peterborough estates in release of all
other services, probably under the same conditions.

The Domesday examples in almost all cases show the * warnode ' as
a payment of a few pence for meadow and wood, but in one case
(f. 376 b, 2) 60 acres of arable had ' warnode ' lying in Uffington.
The * warrant ' rent was the * wara ' or defence money of the lord
in whose wara, 'warnode' or varna^r/ ward, defence or guarantee,
the land lay. The * wara ' might be secured under conditions pecu-
liarly stringent, severe as those of castle-guard and of the render of
gafol by the men of Kent and the men of London.^

* Fritzner, NorsJc Ordhog. The ^ The citizens who were a day late

Middle Engl, form WarnothjIcel.varnaSr, in paying the sum assessed on them in

0. Swed. var[f>]naf'er, is made with the tallage, paid double in London in John's

suffix -nof>, which in verbal abstracts is reign. E.H.B. xvii. 727. We read also

an extended form of -oS- (Lat.-atus, as in of a court of the Honor of Raleigh held

comitatus), the n being probably due to on King's Hill, Rochford, which ordered

formations from medial verbs in -nan, a forfeit of double the rent for every

-non. Cf. Kluge, Nom. Stammhildungs- hour that a suitor was absent (Copinger,

lehre, 1899, p. 68. I am indebted to my Manors of Suffolk).
friend, Miss Paues, for this explanation.

Page

vii.

„

xxii.

xxxvi.

xxxviii

xliv.

ADDITIONS AND COBBEGTIONS TO VOL, I.

for Assign read Assize.

for Charter Eoll read Patent Eoll 1 Eic. II. See also Cal. Charter Eoll, i. 410,
Knaresborough was a borough in John's reign. Eot. Chart. Job. p. 54.
Under Lostwithiel add see Eep. Hist. MSS. Comm. Var. Coll. 1901, i. 328-9.
Under Norwich add A manuscript of the Liber Custumarum Civitatis
Norwici was bought by the Corporation in 1905 from a pork butcher in
Norwich. In Mr. Hudson's opinion it is of date 1306-11. It is the
original text of which an inferior copy existed. Unfortunately our
extracts were made before the discovery of the better text.
xlv. Under Okehampton delete ' de Eedvers.'

xlvi. Under Portsmouth add see Eobert East's Extracts from Eecords in the
possession of the Corporation of the Borough of Portsmouth, ed. 1891,
where the custumal is printed, pp. 1-13.
Iv. Under Wearmouth for 1184-95 read 1180-3 (see Lapsley on Boldon Boo

in the Victoria County History of Durham).
20 Add to note 3 a reference to Ann. London (ed. Stubbs), i. 220. This

shows that the custom was used in 1312.
49 note 1, for E.H.E. xvi. read E.H.E. xvii.

102 Under Guildford read et [non] divadiatus, and in transl. for after read

without. Add note, see Leges Henrici, 23, 1. (Liebermann in ' Deutsche
Literaturzeitung,' 1905, col. 2667.)

103 In margin for 1122 read 1222.

127 Under Wearmouth for the opportunity read chicanery, a7id add note, see

Vol. II. pp. 1-3.
202 note 1, last word, for oath read law.

208 for a double penalty read a penalty for defeasance.

219 note 6, delete last sentence.

221 note 3, add also Oxford, Guildford, Stamford, see Cal. Charter Boll, i.

227 1. 2 of London read devers une [femme coverte marchaunte comme] femm

sole, and in translation correct accordingly.
233 1. 11, read anyone alleges a nearer heir.

238 1. 2 of Cap. 4, tenementis = ? nocumentis. Delete last sentence of note 2.

245 See Gross on Intestacy, Harv. Law Eev. xviii. p. 130, note 2.

255 1. 2 of Cap. 50, prendre = ? pleindre.

816 1. 7 from foot, for will read comes.

322 (glossary) for gafel read gafol ; to resticiare = repair add p. 174.

338 delete bailee, action of account against.

884 1. 28, for on read or.

BOEOUGH CUSTOMS.

BOEOUGH COUET EULES.

EULES FOE PLEADING.

Miskenning/

London Charter, § 8. — Et amplius non sit miskenninga in hustenge 1131
neque in folkesmote neque in aliis placitis infra civitatem. (about).

And there shall be henceforth no miskenning in husting or folk-
moot or in any other pleas held within the city.

london Charter.^ — Eo quod non occasionentur propter misken- 1268.
nyngge in suis loquelis, videlicet si non omnino bene narraverint.

That they shall not be challenged for miskenning in their pleas,
that is, if they do not in all respects observe the rules of pleading.

London. Liber Albus, p. 295. — Ne nul homme pover ne foreyn, ne 1285.
de conusaunce de la ley, ne soit chalaungee pur defaute q'il ne die les
paroles duez et usueles solonc la custome de roialme en comp[t]aunt
et en defendaunt, mais soient tieux gentz bounementes resceux a dire
lour grosse veritee.

No poor man or foreigner or one who does not know the law shall
be challenged for not saying the due and usual words according to
the custom of the realm in making his count and in his defence, but
such people shall be suffered to state the substance of the case.

^ It will be observed in these extracts que magis inhorruit in Londonia.' It

that the same word is used for the mis- is difficult to translate ' occasionare ' by

pleading and for the result of the mis- one word. It means * to take occasion

pleading. against.'

* Leges Henrioi I. 22 : ' Miskenninga
VOL. II. B

2 BOROUGH CUSTOMS

1188. Bristol Charter, cap. 7.^ — Nullo placito quis causari in miskeyning.

In no plea ought any one to be challenged for * miskenning.'

1210 Thomastown, cap. 67.^ — Item nuUus burgensis trahatur ad placitum

(about). pgj, miskenninge.

Item liceat omni burgensi placitare sine mot[ac]ione.

No burgess shall be impleaded for * miskenning.'
It is lawful to every burgess to plead without using particular verbal
formulas.

1300 Waterford, cap. 33. — De meskenning, D'autre part ill i ad [une] ^

(about). gg^^ge ^g miskening, ceo est a saver qe cause de miskennyng est si
aventure aveigne qe si ascun homme sewt a la barre,^ e I'autre le
repond, le responant puist lever aler ^ et enparler ^ une foiz, deus fois
e la tierche fois, e toutes les heures qe les bailiffs soient sour le bank. E
si vous voillez savoir quoi miskennyng est, joe le vous dirrai. Si un
homme dist a bank cose q'il ne dust pas dire, e lui samble qe son
counte n'est pas si boine^ com estre duist, il qe cho fait^ puet
recovrer ^ son conte toutes les heures qe les baillifs seient en bank e
nemie apres.

Concerning miskenning. — Furthermore, there is a cause of mis-
kenning, that is to say that it may be a cause of miskenning if
perchance it happens that a man sues at the bar and the other
party answers him, the respondent might rise, go out, and imparl
once, twice, and thrice, and at any time while the bailiffs are
on the bench. And if you wish to know what miskenning is, I
will tell you. If a man has said to the bench something which be
ought not to have said, and he perceives that his count is not as
good as it ought to be, he who does this can recover his count at
any time while the bailiffs are on the bench, but not afterwards.

1341. Northampton, cap. 42.^ — Purveu est ensement ke desoremes ne eyt

nul meskennyng en la curt en pledant, mes chescun, riche e povere,
counte sa grosse verite sauns estre achesoune.^^

The next is an English rendering.

^ Similarly Inistioge and Moone, and « Dublin hon.

the Lostwithiel charter (1189-1200). "^ Both versions have soit.

2 Added from the Dublin version. « So Dublin. Waterford MS. re-

^ MS. warr\ Dublin barre. torner.

* Waterford aler lever. But some ^ Not in the Latin version.

error may be suspected. 'o achesouner = L, Lat. occasionare.

* Dublin 2?arZer.

MISKENNING 3

Purveide hit is also that hereby forthwarde ne be ^ myskennyng in I46i
the courte pledyng, but every ryche and pore tell his grete sothenesse (^^^°*)-
withowten underneming.

Taunton, cap. 12. — Et qe chescun del dit burgh doit estre escote I4tn-l5th
devant le conestable ou son liutenant en court par sa grosse verite ^^^'^^'^^J-
sans chalenge lequiel il soit, pleintif ou defendant.

And that every one of the said borough ought to be heard before
the constable or his deputy in court according to the sum and
substance of what he says without challenge, whether he be plaintiff
or defendant.

Fordwich, cap. 84.^ — Tunc apellans dicat contra eum quod voluerit, loth
sed non solet appellum esse condempnatum, licet sit in aliquibus verbis ^^^^^'^^^
defectivum.

Then the appellor shall say against [the appellee] what he will, but
his appeal is not to be condemned because it is faulty in some of
its words.

Winchelsea, cap. 8. — . . . Et non solet appelatum (sic) esse isth
defectivum quia juxta verba legis in forinseco narratum non fuerit. century.

The next is an English rendering.

Hastings, cap. 13. — And be it understonde the declaracion of the 1461-83.
appele shall not be defectif ^ how be that it be not rehersed after forme
of lawe used in the foreyn.

Winchelsea, cap. 26. — . . . Et quant lez partiez veignez en court isth
en lour propres personez ou par attourne, le pleyntyf countra vers le ^^^^^'^y-
defen daunt demandant conge de counter * sanz estre repryez, et le
defendaunt en mesme la manere s'il veufc, et mair lour dorra conge,
mais en null manere de plee la ou serjeant ne est a la barre, nul conge
averont de pleder saunz estre repryz.

The next is an English rendering.

Eye, cap. 35. — . . . And when the parties are come into court in Original
their proper persons, or else by attornies, the plaintiff shall tell his Jg^t^ry,
demand against the defendant, asking leave of the court to tell his
tale, without any reproof or reproach. The defendant may likewise
ask licence of the court to answer and to defend against the plaintiff

Printed by. ' MS. defectifer.

Also Boys, Sandwich, p. 463. * MS. countrer.

4 BOROUGH CUSTOMS

without reproof or reproach, and the mayor shall give them licence.
But where is any plea which is pleaded at the bar by the Serjeants
or else by the learned counsellors, then the parties shall have no
licence to plead, but at their own peril or jeopardy.

1419. London. Liber Albus, p. 218. — Item la ou les parties appiergent en

court des viscountz, use est qe les pleintifs poent amender lour pleintes
et loure billes tout temps, avaunt ceo qe meismes les parties soient a
issue ou pledez en juggement en court de recorde.

Where the parties appear in the sheriffs' court, it is the custom that
the plaintiffs may amend their plaints and their bills at any time
before the said parties have joined issue or pleaded up to a judgment
in [this] court of record.

Mistaken Defence.

1100-35. Newcastle, cap. 5, § 2.^ — Nee [burgensis] debet respondere sine die

et termino, nisi prius in stultam responsionem inciderit, nisi de rebus
que ad coronam pertinent.

Nor ought the burgess to answer without a fixed day and term (except
in matters which concern the crown), unless he has first blundered
in his defence.

12th London. Add. MS. IV., § 4. — Si [I'om] plai suit en la curt le rei, 90

est a saveir en husteng, e I'encupeur nume testemonies devant
defense, ices testemonies sunt perduz par la lei de Lundres, kar il
sunt fercend,^ 90 est a dire, ne sunt pas a droit numez. Se li testemonie
sunt a droit nume, dune deit I'om jugier que il viengent avant a
quinzeine, e sulunc 90 que il parlerunt, les alder mans en durunt dreit.^

If a plea is sued in the king's court — that is to say, in the busting
— and the accuser names witnesses before the defence, these witnesses
are lost by the law of London, for they are wrongly declared— that
is to say, they are not properly named. If the witnesses are pro-
perly named, then it should be adjudged that they come forward in
a fortnight, and according as they speak the aldermen shall give
right.

^ Also in the Wearmouth charter, Liebermann.
but without the clause concerning the ^ Cf. Maurer's paper, TJeher das

crown pleas. Gesetzsprecheramt, Sitzungsber. Ak.

" Cennan = attrahere in testimonium. Wiss. Miinch., phil.-hist. Classe, 1887,

I owe the interpretation to Dr. ii. 363.

MISTAKEN DEFENCE 5

Egremont, cap. 31. — Item si burgensis ceciderit in placito pro 1200
defectu responsi dabit iiii. d. domino de forisfacto, et recuperabit (*^°°*)-
placitum suum.

»If a burgess fails in a plea through a faulty defence he shall give the
lord id. as fine, and shall recover his power to plead.

London. Add. MS. XIX. f. 115 b.^ — De roberia et imce infracta. 12th
Roberia et pax infracta et raptus et felunia et membrum fractum et c®°*^^-
incendium et assaltus prepensatus omnia ista et talia defendenda
sunt ante consilium captum et post consilium. Si quis eciam alium
appelaverit de tollagio coram vicecomite et culpatus non defenderet
nominatim tollagium, quamvis defenderet de verbo in verbum, erit in
misericordia vicecomitis quia non defendit tollagium et ad defensio-
nem erga clamivum.

Of robbery and breach of the 'peace. — Robbery and breach of the
peace and rape and felony and mayhem and arson and foresteal, all
these and similar pleas are defended both before and after the
taking of counsel,^ And if any one should appeal another of with-
holding toll (?) before the sheriff, and the accused does not deny
' tollage * eo nomine, though he may otherwise deny the charge
word for word, he shall be in the sheriff's mercy, because he has
not denied ' tollage,' and [he shall further be] at his defence against
the claimant.

Leicester.-^ — Swareles.^ E pur ceo ke us6 fu avaunt ces oures 1277.
quant les parties deveient pleder e le pleintif aveit dit sa querele,
si le defendant taunttost cum la parole ly fuist issue de la buche
ne deist thwerthutnay il fu tenu cum non defendu e ceo apelerent
sivareles, ne ne li fut suffert de enparler ne de cunseil demaunder
ne nul hume ki suist les usages pur li parler, dunt muz en furent
perdaunz ke ne saveient les usages, sur ceo est ore purveu ke quant
les parties aperent e deyvent pleder, le pleintif die pleynement sa
querele saunz chalenge u hoket par li meimis s'il sache, ou par altre
ke seit avoe, si memos ne sache, issi ke par oubliaunce de tens ne
par altre circumstance chalenge la querele ne seit abatue. Mes si
le defendaunt demaunde declaracion de tens ou de altre chose ke
necessaire seit a la pleinte pur meuz estre acerte a respundre, seit

''■ Also in Liber Albus, p. 114. and Eomney, p. 15.

"^ Apparently the London custom ^ Eecords of Leicester, pp. 166-8.

allowed counsel in felony cases, forbidden ^ Danish svar = answer. See Pol-

in the Leges Henrici I. 46 and 47. See lock and Maitland, ii. 606, for an ex-

below for counsel allowed to appellees planation of the process of ' defence.'
by the ISth-centiu'y custumals of Lydd

6 BOROUGH CUSTOMS

la declaraciun fete mesme I'ure saunz chalenge. Puis quant le
pleintif avera querele, le defendaunt eit resnable espace a respundre
k'il ne seit suspris. E s'il se voile conseiller e enparler, le face par
cunge e revegne e die ceo ke il quide ke li puisse valer, tut saunz
chalenge ne hoket,^ par li meimes ou par altre ke seit avoe s'il
memis ne sache. E s'il quide ke son primer respuns ne suffise mie,
die altre chose, ou il se voile atrenk - tenir e jugement prendre. E si
par aventure quant le pleintif avera querele, le defendant ne puisse
dedire ceo ke il avera dit ver ly, ou ne voille respundre puis k'il
serra amonest^ par le baillif, si il ne die resnable enchesun pur quei
respundre ne deit, seit cum non defendu e cum swareles cum fu
avaunt use.

The undefended. — And whereas it was customary heretofore, when
the parties ought to plead and the plaintiff had said his plaint, if the
defendant, directly the plea had left the plaintiff's mouth, did not say
Thwerthutnay,^ he was held to be undefended and that was called
Swarless,'* and he was not allowed to plead or to ask counsel, or to
have any man who knew the usages to speak for him : whereby
many from not knowing the usages lost their suits : For this it
is now provided that when the parties appear and ought to plead, let
the plaintiff fully state his suit, without challenge or hindrance,^ by
himself, if he knows how, or if not, by another who is avowed,
so that the plaint be not abated by non-specification of time,
or by any other circumstance challenged. But if the defendant
demands declaration of time or other thing necessary to the plaint
that he may be better certain of answering, let the declaration be
made at once without challenge. Then when the plaintiff shall have
pleaded, the defendant shall have reasonable time to answer,
so that he be not taken by surprise. And if he wishes to
take counsel and imparl, let him do it by leave and come back
again to say what he trows may avail him, by himself or by another
who is avowed if he himself knows not how, and all without chal-
lenge or interruption. And if he trow that his first answer does not
sufiice, let him say something else, to which he wishes to hold abso-
lutely and upon which he will take judgment. And if perchance
when the plaintiff has pleaded, the defendant cannot deny what he
has said against him, or will not answer, after he has been admonished
by the bailiff, unless he gives reasonable excuse why he should not
answer, let him be treated as undefended and as ' swarless ' as was
formerly customary.

^ See note 5. ^ g^g ^^^^^ 4^ p^ 5^

* Cf. tranche in Godefroy, and see ^ Of. hoquet, evipecheinent (Littre),

for atrenche Y. B. 32-33 Ed. I. p. 3 Brunner, Forschungen, p. 291. Hoket-

(1304). ours are mentioned in the statute of

^ See Vol. I. p. 163. Rageman, Statutes of the Bealm, i. 144.

MISTAKEN DEFENCE - 7

London. Liber Albus, p. 295. — Et s'il aveigne qe nul par disavise- 1285.'
ment se mette a la ley I'ou I'enquest gist, pur ceo ne soit pas jugee
com noun defendu, mes soit mis par soun juge al enqueste saunz
autre damage avoir. Et nul ne soit trope legierment chalaungeez
en tieu manere des pleys pur maucountier ou pur defendre, mes qe
11 die les paroles duez, dount homme peusse treier le groos.

Ne nul homme pover ne foreyn ne de {sic) conusance de la ley
ne soit chalaungee pur defaute q'il ne die les paroles duez et usueles
solonc la custome de roialme, en comp[t]aunt et en defendaunt ;
mais soient tieux gentz bonement resceux a dire lour grosse veritee.
Ma[i]s touz voiez en issue preigne la chose tieu fyn com avaunt est
ordeigne.

And if it chance that any one through want, of advice offers
compurgation where an inquest lies, he shall not for this reason
be adjudged as undefended, but he shall be put by his judge to the
inquest, without incurring other damage. And no one shall be too
lightly challenged in suchlike pleas because he has made a bad
count or [a bad] defence, provided that he say sufficient words for the
substance to be tried.

And a poor man or foreigner without (?) knowledge of the law
shall not be challenged for failing to say the required words and
those which are usual according to the custom of the realm, in
making his count or his defence, but such people shall be well
received and allowed to utter the substance of their case. But always
on issue [joined] let the matter be brought to such end as is afore
ordained.

Waterford, cap. 36. — De malicia baillivorum. — D'autre part si le 1300
p[ro]vost see en la tonderie ^ e la viegne un homme ou une femme ^^ ^^ ''
devant lui qe paraventure ne sevent pas la loi de la chite come faire
dussent, e par aventure qe le baillifs soit couroch6 a luy qi vient
devant lui pur aunchiayne hayne, e luy met suis q'il a dist ou fest
cose q'il unqe ne pensa, le baillifs ne le puist metre al serment, si
beal ne lui soit, se il ne le denie, mes se il le ^ deneie, il se purgera
de sa septime mayn e purra dire, * Sire, vous poez dire vostre volente
come baillifs.' E en vers son viesyn il se [purra] ^ purger^ ove sa
tierche mayn.

Concerning the bailiffs' malice,^ — Furthermore, if the reeve sits
in the tolsey, and a man or woman comes before him there who

^ The date is given by ' Liber Horn.' ^ MS. purgez.

2 See note, Vol. I. p. 322. ^' On appeals against the judgments

^ MS. nele. Dublin le. of municipal officers, see below, p. 16.
* Added from the Dublin version.

8 BOROUGH CUSTOMS

perchance does not know the law of the city as he should, anc
perchance the bailiff through an old hate grows angry with the man
who comes before him, and charges him with having said or done
something which he never intended, the bailiff cannot put him to
the oath unless he chooses, provided he makes no denial ; but if he
makes denial he shall purge himself with six compurgators. And he
shall say, * Sir, you may say your will, as bailiff.' And against a
neighbour^ he can purge himself with the third hand.

1306. Swansea Charter. — Concedimus quod omnes et singuli ministri

nostri, si in aliquo infra libertatem ville deliquerint, respondeant in
hundredo nostro omnibus et singulis de se conquerentibus de injuriis
et gravaminibus eisdem per ipsos ministros illatis et hoc ad veri-
tatem facti sine solempnitate narracionis ; et adjudicentur emende,
restitutiones et correctiones secundum modum et quantitatem delicti
per hundredi nostri consideracionem.

We grant that all and singular our ministers, if they offend in
aught within the liberty of the town, shall answer in our hundred
to all and singular those who complain of injuries and grievances
suffered by them through the said ministers, and this as to the truth
of the fact, without the solemnity of a count ; and the amends,
satisfaction, and punishment shall be adjudged according to the
measure and importance of the offence by the decision of our hundred.

15th Fordwich, cap. 40.^ — . . . Et si defendens non habuerit concilium

century, ^^j ^^^^^ fuerit alterius lingue quam nostre vel adminus ignotus, dabit
ei major concilium pro eo, videlicet aliquem juratum aut servientem,
vel adminus dicetur ei quod veritatem recognoscat, et non surri-
pietur per defectum verborum in curia incaute prolatorum vel per
hujusmodi cavillationes.

And if the defendant has not counsel, or uses perchance another
language than ours, or if he is unknown to us, the mayor shall
give him counsel, to wit a jurat or a serjeant, or shall tell him to
confess the truth, and he shall not be caught up for want of the
words of court, or for words incautiously uttered, or by any such like
cavillings.

Privileges of the Defendant.
1270 Leges Quatuor Burgorum, cap. 78. — Si aliquis calumpniatus sit per

(about). aliquem, pluribus calumpniis non tenetur respondere uno die nisi de

una calumpnia, nisi sponte voluerit. Sed diversis personis de diversis

calumpniis respondere tenetur.^

^ A fellow-burgess, not an oflacer. ^ j^i^q Sandwich (Boys), p. 446.

^ Cf. Leges Iienrici, 49. 3.

PRIOKITY OF PLEA 9

If any one bring several actions against the same person, the
accused is not bound to answer more than one charge on one day
unless he chooses. But he is bound to answer divers charges if they
are brought by different people.

^H Exeter.^ — The ancient custom of this city is that when the de- Uncertain
^^ fendant is arrested and the plaintiff non-suited, he ought to pay the ^^*®-

costs thereof before he commenceth against the same defendant

another action of the like nature.

Priority of Plea.

Leges Quatuor Burgorum, cap. 82. — Si quis verberando fecerit ali- 1270
quem hlaa et hlocliy ipse qui fuerit hlaa et hlocli ^ prius debet exaudiri (about),
sive prius venerit aut non, ad querimoniam faciendam. Et si
uterque fuerit blaa et blodi, qui prius accusaverit prius exaudietur.

If one man by beating another makes him bruised and bloody, he
who is bruised and bloody ought to be heard first, whether he
comes first to make complaint or not. And if both are bruised and
bloody, he who makes the first accusation shall be heard first.

Leicester.^ — Holsake. E pur ceo ke un usage fu en la vile, ke si un 1277
hume se pleinsist de un altre, taunt cum sa pleinte fust pendaunte,
son adversaire de nule pleinte, dunt il se pleinsist de li, serreit oy,
dunt avint sovent, ke si un hume eust batu un altre, si celi ki le tort
aveit fet peust cure ^ avaunt al baillif e pleindre sey, e celi ki tut le
damage eust res9u venist apres e se pleinsist, ja ne sereit oy pur la
pleinte 1' autre : sur ceo est purveu ke chescun en sa pleinte vers altre
seit oy, e chescun estoise a dreit vers altre si cum dreit veut aver. E
mes par eel usage ke fu apele holsake home seit delaye de son dreit
siure.

Holsake.^ — And whereas there was a usage in the town that if a man
impleaded another, so long as his plaint was pending his adversary
should not be heard in any plaint made against him, hence it
often happened that when a man had beaten another, if he who
had done the wrong could run in front to the bailiff and make
plaint, and he who had received all the damage came after and
made plaint, he would not be heard because of the plaint of the
other: wherefore it is provided that every one be heard in his

^ Izaacke, p. 3, without reference. * Infinitive coure (currere).

2 Cf.Schreuer (Gierke, l^'orsc/mn^en, ^ Possibly of Scandinavian origin,

No. 50), p. 126, cited in Liebermann's firom Jiald-saJc, an accusation or action

Leges Henrici, p. 611. that hinders or detains.

^ Eecords of Leicester, i. p. 162.

10 BOROUGH CUSTOMS

plaint against another, and each stand to right towards the other,
as right will have it. And no more by that usage, which was called
Holsake, shall a man be delayed of suing his right.

Attorneys and Counsel.

1221. London. Liber Albus, p. 63. — Sciendum est quod si quis forinsecus

manens extra civitatem et terram teneat in civitate, et implicitatus
fuerit de tenemento suo per breve domini regis, bene poterit facere
attornatum suum per breve domini regis et erit admissus. Sed si
aliquis forinsecus voluerit aliquem de civitate implicitare, non poterit
facere attornatum suum aliquo modo, quia sic posset quemlibet civem
juste et injuste gravari et in differ enter vexare.

Be it known that a foreigner dwelling outside the city who holds
land within the city and is impleaded concerning his land by the
king's writ, may make his attorney by the king's writ and he will be
admitted. But if a foreigner seeks to implead a citizen, he cannot
make his attorney, for thus he might vex and aggrieve a citizen
without as well as with good cause.^

1269. London. Liber de Ant. Leg. p. 42. — De cetero non sit necesse habere

causidicum in aliquo placito moto in civitate neque in hustingo, neque
in aliis curiis in civitate, preter in placitis ad coronam regis pertinen-
tibus vel in placitis terrarum, sive de namiis injuste captis (etc.).

Henceforth it shall not be necessary to have a pleader in any
plea moved in the city, whether in the busting or in other courts in
the city, except in pleas belonging to the crown, or in pleas of land,
or of the unjust taking of distress.^

1280. London. Liber Albus, p. 570. — Que [nul contour] ne soit attourne

. . . ne que attourne ne soit countour.

That no countor be an attorney and no attorney a countor.^

1277. Leicester.^ — Pies de atornez. E pur ceo ke aturnez ne soleyent

estre pris fors en curt e en presence des parties e ce pur le pleintif
sulement, dunt muls de gent enperdirent lor altres bosoignes ou lor
paroles, est purveu ke I'une partie ou I'autre ke voile puisse aturne
fere, e ceo ausi bien en absence de son adversaire cum en sa presence.

^ See Brunner's comment on this might appoint attorneys as in the king's

passage, Forschungen, p. 431. court.

'^ The charter of 52 Hen. III. {Liber ^ A full account of the countor's

de Ant. Leg, p. 104) gave leave that in office is given in Lt6. Cust (1280), p. 281.
pleas concerning land foreigners and "^ Becords of Leicester, i. ^. 161.

others, whether demandant or defendant,

I ATTORNEYS AND COUNSEL 11

E ke Tatorne seit res9u en son liu a fere taunt cum il meismes freit,
fors sul a la lei fere, ceo est a saver en paroles ke par aturne puissent

Iestre plede, e ce devant deus jures ke I'atorne puissent temoiner si
mester seit.
Pleas of Attorneys. — And whereas attorneys have not been wont to
be taken except in court and in the presence of the parties and
that for the plaintiff only, by which many people lose their other
business or their pleas, it is provided that the one party or the
other, so wishing, may make attorney and this as well in the
absence of his adversary as in his presence : and that the attorney
be received in his place to do as he himself would do, except only
in making oath, that is to say in the pleas which may be pleaded
by attorney ; and that before two jurats who may bear witness to
the attorney if need be.

Exeter, cap. 23. — Si un home est enplede devant baillif et il soit 1282
enfranchise, si put aver jur uteyne de resspundre, et le autre put fere (^^*^"*)*
sun aturne de la cause devant le autre.

If a man is impleaded before the bailiff and he is of the franchise, he
can have a week's delay to answer, and the one party can make his
attorney for the plea in the presence of the other (?).

Ipswich, cap. 49. — Item use est en I'avauntdyte vyle de Gippewyz 1291.
qe les chefs baillif s de meyme la vyle joyntement e severalment pussent
prendre attorne dil demandaunt e dil defendaunt, en chescun play
pendaunt e attame devant eux par brefe ou saunz brefe, e ceo auxi
bien en absence de partye com en presence, e auxi bien hor de
court com en court, e qe chescun de eux seyt cru a recorder le
attorne q'il aura issi receu. E si nul qe plede ou qe seyt emplede
en la court avauntdite par brefe ou saunz brefe seyt si malade ou
en tel estat de cors q'il ne pusse, saunz peril de cors, venir en
cour a sure soun pie ou a defendre, qe les ditz bailiifs pussent
maunder un de lour subbailifs ou acun autre covenable persone
a prendre de celuy malade attorne en meyme le pie.

It is the custom in the aforesaid town of Ipswich that the chief
bailiffs of the said town may jointly and severally take an attorney of
the demandant and of the defendant, in every plea pending and begun
before the baihffs by writ or without writ, and this either in the .
presence or in the absence of the [other] party, and both outside the
court and in court ; and each of them shall be trusted to record the
attorney that he has so received.^ And if any one who pleads or is

^ And on the aldermen's entry of attorneys upon the records see London
Liber Albus, p. 222.

12 BOKOUGH CUSTOMS

impleaded in the court aforesaid, by writ or without writ, be so ill or in
such a state of body that he cannot, without risk to life, come to court
to sue his plea or to defend, the bailiffs may send one of their sub-
bailiffs or other suitable person to take attorney of the sick man in
the said plea.

1280 Winchester, cap. 5. — Derechef nul des avantdiz vint e quatre ne doit

about). sustener partie en curt de la cite, ne estre cuntur ne enpernur de
parole en prejudice de la franchise de la vile.

Furthermore, none of the aforesaid four and twenty [chief citizens]
may maintain one of the parties in the city court or be a countor or
undertaker of pleadings in prejudice of the franchise of the town.

1300 Waterford, cap. 60. — Be narratoribus. D'autre part si un counteour

(a ou ). yient devant justices ou devant le meir en ^ le hundred de la cite, ou
devant les baillifs en la tounderie, e doit counter pur un homme ou
pur une femme, e aventure aveigne q'il soit desaw[ou]ee, son cors irra
a la prison, e si il ait ^ grasce des baillifs [qu'il] ^ n'aile poynt a la
prison il dorra x s. se il n'ait grasce de meir e des baillifs.

Of countor s, — Furthermore, if a professional pleader comes before
the justices or before the mayor in the hundred of the city, or before
the bailiffs in the tolsey, and is to plead for a man or for a woman,
and it happens that he is disavowed, he shall be sent to prison, and
if he has grace of the bailiffs so that he does not go to prison, he
shall give 10s., unless he has grace of the mayor and bailiffs.''

1300 Waterford, cap. 91. — [De] [cyicliepol \_at\tornL^ D'autre part si un

about). foreyn porte un bref seur un chiteyn e le cachepoP de la vile prent
a mayn de estre attorne vers le chiteyn pur le foreyn, il perdra sa
vierge e irra a la prisoune. Car il [ne] '' puet estre q'il ne sciet
le consail de la vile, [et si riens face encountre nul de la cyte]^ il
est perjurs, mes il purra bien estre attorne par conge le mair e les
baillifs e nient autrement.

Of the catchpole as attorney. — Furthermore, if a foreigner brings
a writ against a citizen, and the catchpole of the town undertakes to
be attorney for the foreigner against the citizen, he shall lose his
mace and go to prison. For it cannot be that he does not know the

^ MS. ou en, but the Dublin version ^ Part of the rubric is caught up in

omits ou. the binding.

^ MS. nait. Dublin version eijt. *' Dublin version serjaunt.

^ Supplied from the Dublin version. "^ Added from the Dubhn version.

* On the punishment of the dis- ^ The Waterford MS. has instead ^ja-r

avowed advocate see Brunner, Forschun- quoi.
gen, p. 382.

ATTORNEYS AND COUNSEL 13

counsels of the town, and if he does anything against any of the
city, he is perjured. But he can very well be an attorney by leave
of the mayor and bailiffs, though not otherwise.

Waterford, cap. 106. — De attorne fere. D'autre part si un porte i^qq
bref vers autre homme, e le dema[n]dant fait son attorne apres touz (about),
les delais del bref finitz, le defe[n]dant poe[t] demander a la attorn^ * ou
est vostre garant ? par qi estes vous ^ attorn^ ? ' E si I'atourne n'ayt
poynt de garant, mes vouche les baillifs a garant, e le defendant soit
chac6 a respondre par les baillifs e par leur jugement, le defendant ^
puist repeler chel jugement devant le justices le rei. E si issint soit
qe Tattorne^ eit garant par bref le roi, le defendant respondera
[par ley],^ kar 9oe est ley.

Further, if a man brings a writ against another, and the de-
mandant makes his attorney after all the delays of the writ are
finished, the defendant can ask the attorney, Where is your
warrant ? for whom are you attorney ?

And if the attorney has no warrant but vouches the bailiffs to
warrant, and the defendant is driven to answer by the bailiffs and by
their judgment, the defendant can appeal against this judgment
before the king's justices.

And if so be that the attorney has warrant by writ of the king,
the defendant shall answer by law, for this is law.^

Norwich, cap. 49. — De servientibus narrantihus in civitate et eorum Before
gestu, — Item quod servientes narrantes pro clientulis suis in curia ^^^^*
civitatis qui de eadem sunt oriundi manuteneant et defendant pro
posse suo leges et consuetudines illius civitatis tam infra civitatem
quam extra civitatem, et quod pro nullo extraneo nee alio in nullo
casu illas contra placitabunt. Et ad quodlibet festum S. Michaelis
coram ballivis sint jurati, et quod nuUus eorum in curia coram
ballivis socios suos nee adversarium suum verbis contumelliosis vel
inhonestis afficiet, nee ibidem rixam faciet cum rancore, ymmo
clientulo suo bono modo et honesto deserviat prout decet. Et si
aliquis eorum fec[er]it contrarium et ad hoc fuerit assuetus postquam
ter fuerit monitus quod desistat et honeste se habeat, et desistere
contempserit, pro tali contemptu et gestu suo inhonesto de narrando
in dicta causa ^ in dicta curia suspendatur quousque se emendat, et
graciam communitatis inde habere meruerit.

^ So Dublin ; Waterford MS. vous ^ Added from the Dublin version.

estes. * Cf. H.E.L. i. 191-2. Brunner,

^ So Dublin ; Waterford MS. de- Forschungen, pp. 422 sqq.

mandant. ^ In dicta causa is omitted in an

^ So Dublin ; Waterford MS. has lui earUer version.
attorne.

14 BOROUGH CUSTOMS

Of Serjeants making counts in the city, and of their conduct. — That
Serjeants making counts in the city court for clients who belong
to the town shall maintain and defend to their utmost the laws
and customs of this city, both within the city and without, and that
for no stranger or other person in any case shall they plead counter
to the same. And every Michaelmas they shall be sworn before the
bailiffs, and none of them shall brand their fellows or their opponent
with contemptuous or shameful words in the court before the bailiffs,
nor stir up strife there with hatred, but rather serve their client in
good and decent manner as is due. And if any of them do to the
contrary and be wont so to do, after he has been thrice warned to
stop and to behave himself properly, and does not do so, he shall be
suspended for this contempt and for his bad conduct from pleading
in the said cause in the said court until he mends his manners and
deserves the pardon of the community in this matter.

1394. London. Liber Albus, pp. 521-2.^ — Item qe nul pledour ne attourn6^

soit oye a pleder pur lour client z deinz la barre en court des
viscountes, mes estoient hors de la barre sanz crie ou noise faire,
issint qe les gentz de leys et bouns gentz de la citee puissent estre
escutez en due manere de lour busoignes q'ils ount a pursuire en les
ditz courtz, toutdys exceptz persones qui vullent suire pur le roy ou
la citee.

Item qe nulle pledour ne attourne enfourme n'enforge nulle
homme de suir fauxement vers nully par accioun faux et forgez a
grevaunce. Et si nul le face et de ceo soit atteint, par examinement
de dit pledour ou attourne devaunt le mair et aldermans, soit
forsjugges par un an de la court.

That no pleader or attorney be heard while pleading for their clients
within the bar of the sheriffs' court, but they shall stand outside the
bar without making noise or disturbance,^ so that the men of law
and the good people of the city may be heard in due manner in
the legal business which they have to prosecute in the said courts
(always excepting the persons who have to sue for the king or for
the city).

That no pleader or attorney shall instruct or aid a man to
sue falsely against another by a false action and one invented to
annoy. And if any one does so and is attainted thereof, on the
examination of the said pleader or attorney before the mayor and
aldermen, he shall be made to forswear the court for a vear.

^ From Letter Book H. Liher Albus, pp. 473, 525.

^ The oaths of the attorney and of ^ See below, p. 43, on order in court.

the countor are given in two forms.

ATTORNEYS AND COUNSEL 15

Et en mesme la manere soit fait, s'ils alleggent ascune faux
matire foreine pur ouster la court de jurisdictioun.

And the same shall be done if they falsely allege any foreign
matter to rob the court of jurisdiction.

Worcester, cap. 72. — Also that no serjaunt be attorney nor colour 1467.
the meanes of attorne, nor appere for eny party, nor to take eny
money under the meanes of attorne, but the persones that sewen
to make and ordeyne the attornez themself ; but yf so be that eny
stranger make eny officer attorne by writynge, not feyned or colored,
and that it be written and ordeynd at large out of the seid cite.^

Lincoln, cap. 44. — Pro oneracione et disoneracione attornati. — In 1480-1.
evere accion personall wer the dyfifendaunt comys in to court and *
ther oppynly seyn and makys his attournay to answer to the playntyff,
and after, be dwe proces or verdyt, the sayd dififendant ys condempnyd
in det, damages, or fyne makyng, yff he be sufficiant, a fieri facias to
be awardid to doe execucion os befor yt [is] specefyd. And yff he
be not sufficiant to content the dwte,^ the scheriff and thayr officers
schall content and pay for hym, in so mych that [h]e was present
[there in] ^ court and the officers possessid apon hym and myght atake
swerte for thayr dyscharg for his noun sufficiance.

But yf any attournay apeyr for any diffendant of his awn volunte
and fre wyll, that than yf the diffendant be condempnyd in det,
damages, or fyne, and com not in to corte to content and pay the
condempnacion in dischargyng of the attournay, that then a fieri
facias be awardyd to doe execucion of the landis, tenements, goodis
and catels of the sayd attournay. And yf the sayd attournay be not
sufficient, the plantyf schall have execucion apon his body to abyde
in warde to he be content.

Dublin.'^ — No man of lawe schold pled befor mayre and baylyfys I'tss.
... in the courte ... for no maner of man bot gyf that the accyon
pas 20s., bot every man to tell hys own tale, with the supportyng of
the recordowre . . . aftyr ancyent custum.

Lydd, cap. 17, § 2 — And it is to wite that the appelour and the 1476.
appelle here [in an appeal of felony] may have councel, that one to
maynten his appele and other to abate or to defend.*^

^ In cap. 59 it is ordered that if there Becords, i. p. 288. . See below, p. 45, for

are two attorneys of the city no foreigners Dundee,
shall be sworn as attorneys. '' See p. 5, note 2. So also Komney,

^ dwte = debt. ''torn. Lyon's cap. 8. For the opening passage

^ J. T. Gilbert, Calendar of Dublin see Vol. I. p. 53.

16 BOKOUGH CUSTOMS

1490-1. Dublin.^ ... As well the pleyntyffes as the defendaunts shall shew

and declare then- owne tales by themselfe or by ther attornes,
accordyng to an olde law therapon made . . . and to pledde to a quest
in lyke wise . . . and to take non excepsiones agaynes no person ne
persones that have no freholde so that he have in godes to the
value of V. marke, so that the accion excede not 20s., provided allway
that this extende not to freholde ne syses of fryshe force.

1498. Romney II., cap. 24. — Item it is used that non attorney be ressewyd^

for to pursue ne defend any pie that is attanyd ^ in court yf it be
not at requeste of the parti in playne court before the baleff ande
the barons withine the court.*

1574. * Lancaster, cap. 27. — The Serjeants or bellman shal be attornayes in

all forraigne pleas, and no other personne to be attornayes withoute a
letter of attornaye frome the par tie.

Legal aid for Widows and Orphans.

1486. Hereford, cap. 23. — Vidue et orphani adjuvandi sunt, Et si vidue

vel orphani ^ aliqua dampna receperint vel eis injusticia facta fuerit,
ballivus et senescallus in omnibus horis tam in curia quam extra [eos]
adjuvare debent et tenentur.

On helping widows and orphans. — And if widows or orphans
receive any damage, or if any injustice be done to them, the bailiff
and steward at all times, both in court and out of it, ought to help and
keep them.

Error and False Judgment.

1282 Exeter, cap. 37. — Si un home plede en curt de cite par href e

^^ ^° ^' werpit la curt, saunz 90 ke loy de terre luy defaille, et plede en

cunte de la defaute de dreyt prover par serment, si deyt estre repele

par le baillif, mes le veskunte deyt estre en la curt de la cite et oyer

ke Ten face dreyt de une part et de autre.

If a man pleads in the city court by writ and abandons the court
(unless the law of the land fails him), and pleads in the county

^ Calendar of Dublin Becords, i. dred. In other suits they may be ap-

P« 371. pointed in the presence of the mayor or

2 ressewyd = received. mayor and bailiff. Rye, cap. 41, re-

^ attanyd = attamed, begun. quires the attorneys in pleas of land to

^ Against this is written ' vacat' de- be appointed before the mayor and

cret' apud Brodhulle, 23 Ed. IV.' jurats.

Fordwich, cap. 34 (also Sandwich, ^ Montgomery adds : ' sive aliqui

Boys, p. 445), requires that attorneys alii ligei domini nostri regis.'
in suits for land be appointed in full hun-

FALSE JUDGMENT 17

court concerning the default of justice, to prove [it] by oath, he can be
brought back [to the city court] by the bailiff ; but the sheriff ought
to be in the city court and hear that right is done on both sides.

Cork, cap. 25. — IVIais si nul se seint greve par asqun ministre de ^^^^
court, suy par voi ^ devers ceux saunz ^ reprover les en court en ceste
fourme ; si nul se viot ple[i]ndre de mair del tourt q'il luy ad fait, se
pleigne en ^ main d'asquns bayllyf, et del tourt le bayllif en main le
maire, et del tort le mair et bayllyf en main d'asqun des jour[e]s de
la cete qi ad este maire, et del tort le clerk en main d'asqun bayllyf ;
et si trove soit qe le maire [ad] a tort meintenu asqun partie encountre ■*
soun serment, ascun estient a damage, le maire ^ soit amercie a xx. s.
et la partie recovre ses damages ; auxi le ^ baillyf soit amercie en tiel
cas a demy mark, e clerk a xl. d., et tot feoth a les parties lour
damages ; et si le mair, bayllyf ou clerk dement asqun home de bone
value en asqun aultre dispisaunte parole, soit le mair amercie a demy
mark, le bayllif a xl. d., le clerk xii. d., et si veisein de soun veisyn ou
home ou aultre en court soit amercie a xl.d., et s'il n'ad dount a paier
I'amerciement, soit agard a la prisoun de se[t] jours/

But if any one feels himself aggrieved by any officer of the court,
let the suit be pursued against officers without any reproach in court
in this form ; if any one wishes to complain of the mayor of the wrong
he has done him, let him complain before one of the bailiffs ^ ; and
of a wrong done by the bailiff, before the mayor ; and of a wrong
done by the mayor and bailiff, before one of the jurats of the city
who has been mayor ; and of a wrong done by the clerk, before
any bailiff. And if it is found that the mayor has wrongly main-
tained one of the parties contrary to his oath, so that the other has
incurred damage, the mayor shall be amerced 20s., and the party
injured shall recover his damages ; also the bailiff shall be amerced
in such case 6s. 8^., and the clerk 3s. id., and always the damages
shall be paid to the injured party. And if the mayor, bailiff, or
clerk injures a man of good character by some humiliating word,
the mayor shall be amerced Qs. 8d., the baiHff 8s. 'id., and the
clerk Is. And if one neighbour speaks ill of another neighbour or
other person in court, he shall be amerced 3s. id. And if he has
not the wherewithal to pay the amercement he shall be sent to
prison for seven days.

^ Sic, ? for * soit la suite pursue.' ^ MS. de.

Apparently he is not to sue by his own ' See above, p. 7, for Waterford,

' voice.' cap. 36, on * malice of bailiffs.'

2 MS.fauux. ' MS. repeats en. « See Bninner, D.B.G. ii. 358-9,

"* MS. encontre encountre. citing the custom of Bruges on this

"' MS. la partie. official appeal of false judgment.

VOL. II.

18 BOROUGH CUSTOMS

1419. London.' — Proces d'erreur. Item des juggements donez en courtes

de viscountes en acciouns personelx ou assises pris devaunt viscounts
et coroner, par custome de la citee, lez parties vers queux tieux jugge-
ments sount donnes poient suer breve de erroure, direct as maire et
viscountes, pur reverser lez dits juggements in hustynges si les jugge-
ments soit reversables, et coment qe tieux juggements soient affermes
en hustynges unqore mesme la partie purra suyer autre breve d'errour,
direct as maire et viscounts de faire venir le recorde et proces devant
justices assignez a St. Martin le Graund, comme ad este fait avaunt
cez houres. Mez si ascun partie par tiel juggement donez devaunt
les ditz viscountes soit convecte en dette ou en damages, et pur cell
cause commis a la prisone tanqe il ad fait gree, et apres pursewe breve
d'errour de reverser le jugements en hustyng, ou coment que le juge-
ment soit afferme en hustyng et la dite partie voudra suyer auter
breve d'erroure de reverser mesme le jugement devaunt les justices
assignez a St. Martyn le Graund comme devaunt est dit : et nepur-
quant mesme la partie q'est issint emprisone ne doit my estre
deliveres hors du prisone par auncien custome de la citee pur cause de
tiel breve d'errour, avaunt ceo q'il eit trove sufficiant suyrte deinz la
dite citee, ou mys lez deners en mayns de la courte pur paier a celuy
que recovery en cas qe le dit jugement soit afferme en apres (etc.)

Process in Error. — Concerning judgments given in the sheriffs'
courts in personal actions or in assizes taken before the sheriffs and the
coroner, by the custom of the city the parties against whom such
judgments are given can sue out a writ of error, directed to the
mayor and sheriffs, to reverse the said judgments in the busting if
the judgments are reversible, and even though such judgments are
confirmed in the busting, one of the parties can still sue another
writ of error directed to the mayor and sheriffs to cause the record
and the process to come before the justices assigned at St. Martin's-
le-Grand, as has been done hitherto. But if either party in such
judgments given before the said sheriffs be convicted of debt or in
damages, and for such like cause committed to prison until he has
made satisfaction, and afterwards sues a writ of error to reverse the
judgment of the busting, even though the judgment be confirmed
in the busting, if the said party wishes to sue another writ of error to
reverse the said judgment before the justices assigned at St. Martin's-
le- Grand as is aforesaid, nevertheless the party thus imprisoned
ought not to be delivered out of prison, by old custom of the city,
by reason of such writ of error, until he has found sufficient security

* Ricart's Ealenda/r, p. 100. Cf. Cal Letter Book F, p. 64. Also the account
of the ' querela levata ' from the Sheriffs' Court, Hatfield MSB. pt. ii. p. 221.

FALSE JUDGMENT 19

without the city or has put money into the hands of the court to
pay him who recovers, in case the judgment be confirmed.

Leges Burgorum.^ — Be judicio falsando. Si aliquis in patria vel in isth
hurgo reddit judicium in curia, pars contra quern redditur judicium aut <^^°*^^-
concedet aut statim dimittet et contradicet. Et [non] vertat articulos
pedum ubi talones steterunt antequam contradicat per certas raciones
^t atestatum ^ fuerit per curiam ; postea non audietur ad contradicen-
dum, licet judicium tale fuerit falsum : de piano hoc vide librum de
attachiamentis.^

Of the falsing of judgment. — If any one in county or borough
renders judgment in court, the party against whom judgment is
given must either accept it or at once refuse it and reject it. And he
shall [not] turn the toes of his feet where his heels stood ^ before he
contests the judgment for certain reasons, and this has been witnessed
by the court ; afterwards he shall not be heard in contradiction,
although the judgment has been false. For more on this subject see
the book of attachments.^

Dover, cap. 11. — Nota de erroure. And yf any man make sugges- loth
tyon unto the Constable ^ that the mayre and baylly have done hym ^^^ ^^'
wrong, be hit in plee reall or personall, the Constable shall send hys
writt unto the mayre and baylly to do ryght unto the partyez.
And yf the mayre and baylly do not after the maundement, the
wardeyne may send the ii'^^ and the iii'^^ The wardeyn or his
lieutenaunte may enter into the frauncliyse and to doo ryght unto
the partye as the usage of the port will.''

Canterbury I. cap. 12. — Yf eny of the bailiffs ... do to eny partie 1529.
wrong, so ther errours which that be founde by ii. wyse and lawfuU
men of sythe and hyerth^ in her office and therof playne to the xii.
men of the cyte, then the same xii. men or the most parte of them
schall charge the bayliffs in the courte to amend yt by the neyxt courte
or day by the forsayd jurorz assigned, and if they do not, the
forsayed jurorz with them shall come to a certayne courte, before the

^ Add. MS. 18111, f. 1376. way. For an account of the procedure

' MS. astestatum. ' see Jeakes's Cinque Ports, pp. 72 sqq. ;

' CtQuoniamattachiamenta,caLip.9, Lyon, ii. 282, 299. In cases of doubt

in the Acts of Paris, of Scotland. the mayor and jurats might consult

* For references on the appeal of the barons of the other ports before

false judgment * stante pede ' see Brun- giving judgment. See Fordwich (Wood-

ner, D.B.G. ii. 357 and note. ruff, p. 268) ; Rye (the consultation to

' Also on the manner of doom- be by a Broderhill), cap. 45 ; Winchel-

falsing see Frag. Coll. cap. 52. sea, cap. 33 ; Hastings, cap. 39.

*^ Or Warden. ^ sythe and hyerth = sight and hear-

' Appeal lay to the court of Shep- ing.

20 BOROUGH CUSTOMS

bayliffs yholden, of the xxxvi. men of the comen ychosen, aldermen
and most wysest men, and by them right shall be ordeynyd.^

No Attaint of City Juries.

1240 Bristol, cap. 5. — Nulla eciam assisa nee inquisicio neque actincta

(about). forinsecorum sive extraneorum fiat super burgenses, et si ulla facta
fuerit pro nulla habeatur.

No assize or inquest or attaint of foreigners or outsiders can be
made on burgesses, and if any be made, it shall be deemed of none
effect.

Original Dublin.'^ — Plea for a jury of 24 to attaint 12 jurors on an assize of

^^^^' novel disseisin. The mayor, bailiffs, and community of Dublin

claim that attaint ought not to pass of any tenement in Dublin by

their liberties granted by the kings of England.

1328. London. Liber Albus, p. 438. — Secundum libertates et antiquas

consuetudines civitatis Londoniarum nulla attincta super cives civi-
tatis predicte de aliqua re in civitate predicta emergente capi debeat.^

According to the liberties and old customs of the city of London
no attaint can be taken against citizens of the aforesaid city concern-
ing any matter arising in the said city.^

BOEOUGH OFFICEES.

Rules for their Protection.
12th Preston, cap. 37. — Item si burgensis prepositum vel prepositus

cen ury. burgensem in curia percutiat qui convictus fuerit, deinceps se in
misericordia erit de pugno.

If a burgess strikes the reeve, or the reeve a burgess, in the court,
and is convicted thereof, he shall run the risk of losing his hand.

Cap. 39. — Item si burgensis percutiat prepositum extra curiam in
misericordia est xl. solidorum.

If a burgess strikes the reeve outside the court he shall be
amerced 40s.

^ The account of the constitution ^ ^^^ Justic. Boll, Ireland, p. 144.

given by ' Civis,' Minutes from Ancient ^ Also Kicart's Kalendar, p. 103 : no

Records, shows that the ' twelve men ' attaint is maintainable in London (1419^.

were the aldermen, who with twenty- The privilege was lost by Stat. 11

four councillors made up the thirty-six, H. VII. c. 21.

to whom the appeal was submitted by ^ See below, p. 57, 58, on the protec-

two witnesses of the bailiff's judgment. tion of burgesses from sworn inquiries.

PROTECTION OF BOROUGH OFFICERS 21

Egremont, cap. 18. — Item si quis verberaverit prepositum ville, dabit 1200
domino pro forisfacto dim. marcam si inde convictus fuerit. Et si (*^°"*)-
traxerit sanguinem de eo, quoquo modo fuerit, dabit domino pro foris-
facto xviii. s. si inde convict as fuerit.

If any one should strike the reeve of the town, he shall give the
lord a half -mark as forfeit if he be convicted thereof. And if he draw
blood from him, in whatsoever way it may be, he shall give the
lord 18s. as forfeit, if he be convicted thereof.

Leges duatuor Burgorum, cap. 100. — Si aliquis dispersonaverit 1270
prepositum in plena curia, oportet eum cum amicis suis ut deneget ^*°°^*^*
aperto ore quod mentitus est et cum vadimonio misericordie. Et postea
tactis sacrosanctis jurabit se nichil mali scire de eo. Et si alias
ipsum dispersonaverit erit in jurisdictione prepositi et vicinorum
Buorum ut emendet.

If any one should abuse the reeve in full court, it behoves him with
his friends to deny it with open mouth, saying that he lied, and
giving a gage of the amercement. And afterwards he shall swear on
the halidom that he knows no evil of him. And if a second time he
abuses the reeve he shall be in the jurisdiction of the reeve and of
his neighbours so that he shall make amends.

Waterford, cap. 19. — De amerciavientis de inajorejurati {sic) et aliorum 1300
taxandis. D'autre part qi mesdit le meir la merchi serra xl. s. E qi ^^ °^ ''
mesdit nul des xxiiij. jurez il serra amercbie a xx. s. E qi mesdit nul
des autres chiteins la merchi serra x. s. Ch'est a saver ceaus qe ne sent
pas baretours. E a ceaus qe sunt barectours la merchi sera ii. s. et la
moite perdone. E se il sont forens il n'averont fors xx. d. et la moite
perdone. E se il [seit] ^ serjant de la ville et I'em le mefface, il avera
d'amendes xl. deners si le veut prendre. E si sane seit espandu, la
merchi sera dim. mark. E si sane de foren soit espandue", la merchi
n'est qe xl. deners.

Of affeering the amercements for {injuring) the mayor, jurats,
and others. — Further, for maligning the mayor the mercy shall be
40s. And he who mahgns any of the 24 jurats shall be amerced 20s.
And he who maligns any of the citizens, his mercy shall be 10s., that
is to say for those who are not barrators.'-^ And for those who are
barrators the mercy shall be 2s. and the half remitted. And if they
be foreigners they shall have only 20 pence and the half remitted.
And if he be a serjeant of the town who is injured, the injured
shall have as amends iOd. if he will take it. And if blood be shed

^ Omitted also in the DubHn version. * = brawlers.

22 BOROUGH CUSTOMS

the mercy shall be a half-mark. And if the blood of a foreigner be
shed, the mercy is only iOd.

1300 Waterford, cap. 20. — D'autre part si le mair soit feru en acune

(about). jiianier, la mercie sera x. li. E si sane sera espandue la mercie sera
c. li. ou perde la main destre ou giser en perpetuel prisone. E si nul
des xxiiii. jurez soit feruz, la mercie serra x. li. E si sane soit espandue
de nul autre citeyn qe ne soit de xxiiii. jurez, la merchie serra c. s. se il
soit foreyn. E si il est de la cite, fache solom les lois et les usages de
la chite. Ch'est a saver se il soit meir iiii. li. E se il est de jurez xl. s., e
se il soit hors de jurez xx. s. come chiteyn et veisyn.

Further, if the mayor be injured in any way the mercy shall be
iOl. And if (his) blood be shed the mercy shall be 100/., or (the
offender) shall lose his right hand or lie in prison for life. And if any
of the 24 jurats be wounded, the mercy shall be 101. And if the
blood of any other citizen who is not one of the 24 jurats be shed, the
mercy shall be 51. if he (the offender) be foreign. And if he be of
the city it shall be done according to the laws and usages of the city.
That is to say, if he be mayor 4/., if he be a jurat 40s., and if he
be not a jurat 20s. as a citizen and neighbour.

1339 Cork, cap. 24. — Derechef pur meintenir meilur [ordre] en court

(a ou ). ^g^ assentu qe se nul denzein die en courte au mair qe il a tourt
meinteint asqun partie, ou fait cuntre soun serment, ou deme[n]tt le
maire ou aultre tiels dispisables paroles, soit amercie a deux mark s'il
[ne] denitt e voile de ceo sourt[e] trovoir, et s'il n'ad dount, soit
agarde a la prisoune e la demorge par xv. jours au meynz ; et si il
d[i]e tiels paroles au baillifys en court, soit amercie a xl. d., et s'il n'ad
dount, soit agard a la prisoun par vii. jours; et si au clerk en court,
soit au merci a xii. d, ou la prisoun par i. jours, s'il n'ad dount paier
I'amerciement. E si nul surmeitt au mair, bailiff, clerk, ou serjaunt
en court asqun fault, come disaunt qe il fait faucement soun office en
asqun certayne cas, soit amercie a duble qe avaunt est dist, come vers
le mair de un mark, e isi aultres ministres solom lour estat en la
forme sourdist, ou qe le prisonment soit agarde a double de jours s'il
n'eient dount paier I'amerciement ; et si nul estraunge forene [face]
de tiels despitz en court seit amerci com le denzein, a lever quant
home poet trovoir destresce deinz la franchise, mais le prisonment ne
soit ver luy agard pur defaut de destresces pur les amerciemens etc.

Further, for the maintenance of better order in court it is agreed
that if any denizen tells the mayor in court that he (the mayor)
wrongly maintains one of the parties or does contrary to his oath,
or if he abuses the mayor or uses other such scornful words, he shall

PROTECTION OF BOROUGH OFFICERS 23

be amerced two marks unless he denies it and will find surety
thereof ; and if he has not the wherewithal he shall be sent to the
prison and stay there a fortnight at least ; and if he utters such words
to the bailiffs in court, he shall be amerced iOd. ; and if he has not the
wherewithal, he shall be kept in prison seven days ; and if he abuses
the clerk in court he shall be amerced 12d. or be imprisoned one day
if he has not the wherewithal to pay the amercement. And if any
one charges the mayor, bailiff, clerk, or Serjeant in court with any
fault, as for instance by saying that one of them abuses his office in
any particular case, he shall be amerced double what is aforesaid, as
against the mayor one mark, and as against all the other ministers
according to their rank in the form aforesaid. Or else the imprison-
ment shall last for twice the length of time if they have not wherewith
to pay the amercement. And if any foreigner be guilty of such
contempts in court he shall be amerced like the denizen, the fine to
be raised when a distress can be found within the franchise, but he
shall not be imprisoned for want of distresses for the amercements, etc.

Kilkenny. Liber Primus, p. 16. — Quia plures burgenses et alii in i^^^.
villa solebant deforciare servientes ville, officium eorum facientes tarn
ad namiandum pro tallagiis seu alia quibuscumque, quam pro amer-
ciamentis seu pro aliis exitibus et proficuis superior! et communitati
ejusdem ville perpetua seu de jure a[djud]icandis [imjpetrandis, ordi-
natum est quod deforciator, cujuscumque status seu condicionis fuerit,
prima vice attachietur coram superiore etc. et tamen postea si per
bonam inquisicionem super hoc convictus fuerit amercietur super visum
ville de bonis suis levetis (sic) pro opere communi construendo seu
edificando.

Whereas many burgesses and others in the town were wont to
deforce the Serjeants of the town in the execution of their office, both
in distraining for tallages and other matters whatsoever, as also for
the amercements and for other issues and profits ordered to be claimed
by the sovereign and community of this town permanently or law-
fully, it is ordered that the deforcer, of whatever rank or condition he
may be, shall be attached the first time before the sovereign, etc.,
and afterwards, if he be convicted thereof by a good inquest, he shall
be amerced, upon a view of the town, (the mercy to be) levied on his
goods, for the making and building of the common work.

Waterford, Ordinances II. cap. 11. — The saide John didde shed the 1448-9.
said maire is blodde, and therfore he was adjudged by the saide
counsaile that he shall delyver to the forsaid maire an cli.y else to lose
his right hande.^

^ At Kilkenny, Rothe's Begister, p. on the sovereign. See also Riley,
194, in 1468, loss of a hand or a fine of Memorials, p. 492.
10^ was the penalty for drawing sword

24 BOKOUGH CUSTOMS

15th Sandwich.^ — And when there is any man that maketh a rescusse

century. ^^ ^|^^ baylyf in his attachement or in any dew execucion doyng, or
leyeth any hond on hym in violence or makyng assawte upon hym
with many vicious wordes, the mayor and jurats shall consyder that
he [be] put in prison for contempt don to the kyng, and in prison hold
untill he by ordynaunce of mayor and j urates have made satisfaccion
to the kyng for the contempt and [to] the bayly for the trespasse.
In the same maner shall it be don yf any man mistaketh agaynst
mayor or baylyf other any jurre, whether it be by wordes or dedes,
after the quantite of his trespas he shalbe chaistened. Neverthelesse
yf any man do to the mayor any bodely violence, he shall lose the lyme
that he oppressed with.^

I486. Hereford, cap. 4. — Et ipsi ^ de concivibus nostris qui dictum balli-

vum malefecerint vel offenderint, cujuscumque condicionis vel status
fueri[n]t et in dicta civitate vel suburbio moram fecerint, procedatur
contra eum {sic) tanquam inobedientem et perjurum, cum super hoc
convictus fuerit coram concivibus suis xij. ad hoc quandocumque
necesse "^ fuerit convocatis.^

And any one of our fellow citizens who abuses or contemns the said
bailiff, of whatever rank or status he may be, if he dwells in the
said city or suburb, shall be proceeded against as one disobedient
and forsworn, when he has been convicted of this before twelve of
his fellow citizens gathered for this purpose whenever it is necessary.

Cap. 5. — Et si per favorem vel manutentores aliquos ^ emendare
renuerit, a civitate ejiciatur et tenementa et catalla sua seisientur
tanquam domino regi et civitati inobediens et tranquillitatem civitatis
per turbans, nisi per imprisonamentum castigetur.

And if by favour or by means of maintainers he should refuse to
make amends he shall be cast out of the city franchise and his
tenements and chattels shall be seized, inasmuch as he is dis-
obedient to the lord king and the city and a disturber of the peace of
the city ; that is, unless he is punished by imprisonment.

^ Old Eng. transl. in Cotton MS. ^ MS. ipse.

Julius B.V. f. 23., not in Boys, p. 471. ^ MS. necessarie.

^ Similarly also Rye, cap. 24 : ' If ^ MS. convocatus. See Brydal,

the mayor be stricken by hand or by Camera Begis, p. 94, on the disallow-

weapon, he that striketh him shall lose ance of the London custom to commit for

that hand that he striketh with, if the abuse of an alderman on the Exchange,

mayor will.' « MS. manutentorem aliquos.

PROTECTION OF BOROUGH OFFICERS 25

Cap. 6. — Et eodemmodo utimur ut fiat de eorum manutentoribus ^
quia per consuetudines nostras dicimus eum [ballivum] presenciam
domini regis representare.

And in the same way we are wont to treat the maintainers of
such people, because by our customs we say that the baiHff repre-
sents the presence of the lord king.

Cap. 70. — Manus violenter in hallivum in\J\icientes quomodo pimiri
dehent. — Et in hoc casu si quis manus violenter in ballivum nostrum
injecerit vel eum maliciose percusserit ^ et super hoc convictus ^ fuerit
ante adventum Willelmi Conquestoris Anglie, solebant tales amittere
membrum percutientem (sic) per consuetudinem civitatis istius, que
quidem consuetudo tempore suo relinquebatur ratione cujusdam pres-
biteri qui fuerat cum eo magni status et veniebat in civitate ista, nomine
nuncii, et se male gerebat quia capere voluisset filiam cujusdam
concivis nostri vi et armis, et hutesio levato, ballivus cum posse
civitatis advenit, et ballivum percutiebat cum uno gladio in capite, et
fugiendo captus fuit et in prisona detentus, Pro quo dictus Willelmus
litteratorie {sic) misit, supplicando ut pena ilia et consuetudo pro tem-
pore suo et maxime ilia vice remissa foret.^ Et a concivibus tunc
concedebatur et temporibus nostris non vidimus talia evenire. Et si
ballivus in hoc casutalem percussorem ^ in prisona maliciose detinuerit^
qui emendas sufficientes obtulerit secundum quantitatem delicti, in
tali casu et in consimilibus omnibus aliis incarceracionem alicujus
concivis nostri tangentibus, amici propinquiores incarcerati illius
venient in plena curia et '^ convocatis sibi xii. de discrecioribus et
validioribus civitatis coram eis predicta revelabunt, et per considera-
cionem eorum emende adjudica-ntur et ordinantur. Et postea per
visum eorum corpus incarcerati deliberetur et securitatem inveniant,
quod de cetero se tam erga ballivum quam communitatem bene et
fideliter portabit.^

Hoiv those ought to be pimished luho lay violent hands upon the
bailiff. — And in this case if any one laid violent hands upon our
bailiff or struck him maliciously and was convicted thereof, before the
coming of William the Conqueror of England,^ such persons were

^ MS. manutencionibus. ' The Montgomery custumal, cap.

^ MS. percuterit. 124, declares that the custom there was

• MS. convictum. abolished in the time of Edward II.,

MS. fuerat. whose ambassador maltreated Baldwin,

MS. percussionem. the son of Philip, then bailiff, and was

MS. devenerit. imprisoned and released at the king's

' MS. ut. request. See Introduction, Vol. I. p. xl.

^ 'MS. portabunt.

26 BOROUGH CUSTOMS

wont to lose the striking member, by the custom of this city, which
said custom was abandoned in his time by reason of a certain priest
who was with him, a man of high rank, who came to the city as an
ambassador and misconducted himself, for he sought to take by force
and arms the daughter of a certain citizen, and the hue being raised,
the bailiff with the city posse came, and he struck the bailiff with a
sword upon the head, and flying he was caught and kept in prison.
Therefore the said William sent by letter praying that that penalty
and custom should be remitted during his time, and especially on this
occasion. And this was then granted by the citizens, and in our time
we have not seen such things happen. And if the bailiff in such case
should send the striker maliciously to prison, when he has offered
sufficient amends according to the amount of the offence, in such
case and in the like and in all others touching the imprisonment of
any of our fellow-citizens, the next of kin of the imprisoned man shall
come into full court, and twelve of the discreeter and worthier of the
city having been gathered, before them they shall unfold the said
matters, and by their decision the amends shall be adjudged and
ordered. And afterwards by their view the body of the prisoner shall
be released and they shall find surety that henceforth he will conduct
himself well and faithfully both towards the bailiff and the com-
munity.

Protection of Prisoners.

1800 Waterford, cap. 112.— De atache mesfaire. — D'autre part si un

(about). iiomme soit atachee par serjant de la vile pur mener le a la prisoune
ou a la tounderie pur son trespas, e un homme fiert chelui q'est
atach6, apres 906 q'il est une foitz en mayn de serjaunt, ou en sa
garde, chelui qi le fiert serra comaunde a la prisoune, e hors de la
prisoune trovera boine seurte de faire les amendes a chelui q'il feri,
soulom 9oe qe le trespas amounte. E estre [ceo il serra] amercie
grevousement.

Of injuring one under arrest. — Further, if a man is attached by
the Serjeant of the town, to be led to the prison or to the tolsey for
his trespass, and a man wounds him who is attached after he is in
the Serjeant's hand or in his ward, he who wounds him shall be
ordered to prison, and (to get) out of prison shall find good security
to make amends to him whom he wounded, according to the amount
of the trespass, and besides this he shall be grievously amerced.

PENALTIES ON BOROUGH OFFICERS , 27

Penalties on Borough Oflacers.

Preston, cap. 38. — Item si prepositus burgensem percutiat extra 12th
curiam, in misericordia est de suo scensu. century.

If the reeve strikes a burgess outside the court, he shall be amerced
to the amount of his property.^

Northampton II. cap. 41, § 2. — Et si ballivus aliquid ab alio 1260
debitore acceperit, unde attachiamenta et ipsum sine solucione vel (^^°^*)-
satisfacione dimiserit, cum illud constiterit per testimonium curie,
ballivus exinde teneatur ad solucionem faciendam creditori propter
suam defraudacionem.

And if the bailiff takes any (bribe) from any debtor for which he
releases the attachments and the debtor, without payment or
satisfaction (to the creditor), if this has been proved by evidence to
the court, the bailiff is then bound to make payment to the creditor
for his dishonesty.

Northampton III. cap. 56, § 2. — E si le ballif atache les chateus de 1330
nuli pur dette ke il deit, e apres 90 ke il les avera attache let^ (about).
Tatachement e le dettour departir sanz gre fere ou scute al creancer,
6 90 per doun ke celi ballif avera pris del dettur, e celi chose seit
atteint, le ballif en sei tenu a fere pleinement la scute e le gre al
creanceer pur la fraude ke il avera fet e 90 sanz delay.

The next is an English rendering.

Northampton III. cap. 56, § 2. — And if the bailiffs tachen the catelles 1451
of any man for dette that he cweth, and after that he hath him (about),
attached lat the attachment and the dettour departe withcwten gre
doyng or paying tc the creanscur, and that by 3yfte that the bailife
hath taken cf the dettour, and that this thyng be overtaken, the
bailliffs be hclden hollyche tc make the paying and the greyng to the
creaunscur for the fraude that he hath den, and that withcwte delaye.

Ipswich, cap. 34. — E si la dite destresce ne amcunte mye taunt 1291.
com la chose derrene . . . seyt le subbaillife, a qi le primer precept
estoyt feet pur la primere destresce fere, puny par agard de ses sove-
reyns pur ceo q'il ne fist mye au comencement suffisaunte destresce

^ For census = movables see Lieber- ^ Cambridge fragment, Univ. Lib.

mann, Die Gesetze der A.-S., p. 668, MSS. Dd. vii. 6, has lest.
note h.

28 BOKOUGH CUSTOMS

pur la dite chose derreyn6, si cely subbaillif ne se pusse renablement
escuser q'il ne poeyt renable destresce ne suffisaunte aver trove.

And if the said distress does not amount to as much as the sum
recovered, the subbailifif, to whom the first precept for the making of
the first distress was made, shall be punished by order of his sove-
reigns for not making sufficient distraint at the beginning, equal to
the said amount recovered, unless the said subbailiff can reasonably
excuse himself on the ground that he could not have reasonable or
sufiicient distress.

1291 Ipswich, cap. 23 (end). — E si le gardeyn de la prisoun ly eyt don6

cung6 de aler hors de prisoun saunz assent de ses sovereynz, e ceo seyt

• en cas ou damages sunt derenez, respoygne cely gardeyn des damages.

E ja le meyns seyt il puny par agard de ses sovereyns pur le cunge

q'il ad done saunz gar ant.

And if the keeper of the prison has given the prisoner leave to go
outside of the prison without consent of his sovereigns, and this
occurs in a case where damages are recovered, the keeper shall answer
for the damages. And he shall also be punished by his sovereigns for
the leave which he gave without warrant.

1300 Waterford, cap. 57. — D 'autre part le coruroners e baillifs de la vile

(a 0" )• deyvent de lour office garder de quatre ^ parties de la vile qe nul larcyn
ne dampnage ne maufet ne veigne a la chite. E cho doyvent il faire
quatre fois par aan. E si nul mal ou dampnage aviegne, les couroners
e baillifs sont tenuz a respondre de touz maus [et damages]^ qe
sont faitz.

Further the coroners and bailiffs of the town ought to carry out
their office by governing the four quarters of the town so that no larceny
or damage or mischief may happen to the city. And this they ought to
do four times a year. And if any damage or mischief happens, the
coroners and bailiffs are bound to answer for all the mischief and
damage that is done.

1339 Cork, cap. 15. — Si tiel estrange home liver6 a gaioler defut gaioler

e se passe hors de la fraunchise, par negligence du gaioler ou par soun
gre, com pur doun ou amist6, ou aultrement par coupe du gaioler, le
gaioler pur soun trespas paiera a la comminalte dimy mark, e au
pleyntyf ses damages en ceste maner : si la plaint soit de dette,^ e le
pleyntif eit asqun evidence de la dette dount la court poet avoir asqun
bon entendment,^ de la livre, xii. doners ; e si la pleint soit de asqun

^ MS. quartre. * ]y;g^ enomement, probably a mis-

^ Added in the Dublin version. copying.

' MS. citte apparently.

PENALTIES ON BOROUGH OFFICERS 29

contract ou trespas e le pleyntif eit de goe asqun bon evidence ou
tesmoignaunce resnable, de la livre de ses [da]mages,^ qi ^ la court luy
gardroit, si le defendaunt fut de ceo vers luy convict, xii. d. Et si la
court conceive par asquns ^ bons ^ evidences qi le pleyntif par null
temps n'avera soun recovrir vers luy qi est ale de qu'il se pleint, par
raisoun qi james ne luy voira ou aultres tiel enchaisouns, eit le partie
soun recovrir vers le gaioleer de plus haut qe n'est avauntdit par dis-
crecioun de la court.

If a stranger thus ^ handed over to the gaoler escapes from the
gaoler and if he goes out of the franchise by the negUgence of the
gaoler or by his consent, whether for bribe or for love, or otherwise
through the gaoler's fault, the gaoler shall pay the community a half-
mark for his offence and the plaintiff his damages in this manner : if
the plea be one of debt and the plaintiff has some evidence of the
debt whereby the court can have some knowledge, 12 pence in the
pound ; and if the plea be one of breach of contract or trespass, and
the plaintiff has some good evidence or reasonable witness of the
same, 12 pence in the pound of damages which the court awards him,
if the defendant be convicted herein against the plaintiff. And if. the
court is of opinion on good evidence that the plaintiff* never will be
able to get his recovery against the fugitive whom he impleads,
because he never will see him again, or for any such reason, the party
shall have his recovery against the gaoler for a higher sum than is
aforesaid at the discretion of the court.

Waterford Acts and Statutes, cap. 30. — It was enacted that al 1448-9.
manere actiones of debt recoverid in defaulte of an aunswere, maire,
bailiffs, and geaylere shall pay it, and the plentif shall be putte to none
oethe.

And as tuchyng dette recoverid before maire and bailiffs for the
yere beynge, and if the dettor escape or goeth att large, then the maire
and bailiffs or gaeyler shal al[low] the recovere unto the pleyntif.

lydd, cap. 36, § 2.'^ — And in case the baylif or his depute take nat i476.
sufficient pleges to answer the party playntif, then shall the same
party playntif have his sute ayenst the baylif for his negligense, and
he shall make gree to the party playntif for the trespase, dette, or
other cause, in such manner as the borowes shuld do, and that be
don by the taxacion of the jurattes.

* MS. maiges. ^ See Vol. I. p. 96.

^ qi is written for qe here and below. ^ Also Romney II., Lyon's cap. 24

^ MS. gives the un a fifth stroke. (end).

^ MS. gives the n a third stroke.

30 BOROUGH CUSTOMS

1567. Lancaster, cap. 25, § 2. — If either the balyves or sergeants do suffer

any person to escape after the arrest made, then they in whom the
defalte is, to aunswer the partie playntiffe his debte.^

Restrictions on the Reeve's Power to implead Burgesses.^

1154 Wallingford Charter. — Et si ipse prepositus eos ahqua occasione

(abou ). g.^^ calumpniatore implacitaverint, non respondeant.^

And if the reeve should implead the burgesses on any occasion
without a claimant, they shall not answer.

1194. Pontefract, cap. 14. — Si serviens pretoris locutus fuerit versus

burgensem, non respondebit sine teste.

If the reeve's serjeant implead a burgess, he shall not answer
unless there is witness.

J270 Leges duatuor Burgorum, cap. 38. — Prepositus non debet ponere

aliquem vel aliquam de jure ad juramentum pro fractione assise nisi
aliquis conqueratur de aliquo. Et si denegaverit et alius non habeat
testes, tunc purgabit se secundum legem burgi, videlicet sexta manu.

The reeve cannot lawfully put any one to the oath for the
breaking of an assize,'' unless some one else makes an accusation.
And if the accused makes denial and the other has no witnesses, then
the defendant shall purge himself according to the law of the borough,
namely, with the sixth hand.

Cap. 76. — Si prepositus vel precones ville habeant calumpniam
versus aliquem vel aliquos, non possunt neque debent ducere testes
contra illos in aliqua curia nee calumpnia, sed pars defendens se
acquietabit per legem.

If the reeve or the Serjeants of thetown have a claim against any
one, they cannot and ought not to bring witnesses against them in any
court or in any plea, but the defendant shall acquit himself by
compurgation.

^ So, too, London Letter Book G, another shall be plaintiff in the case,

f. 546, and Dunthorne, f. 416, under the See on the Eetrait below, p. 62. Cf.

influence of 2 Westm. 13 Ed. I. c. 11. Magna Carta, cap. 38 : ' Nullus balliyus

^ See aho Beverley Town Documetits, ponat de cetero aliquem ad legem sim-

Selden Soc. p. 10. The burgesses may piici loquela sua sine testibus,' etc.

not be presented by the bailiff or con- Brunner's interpretation, D.i^.G. ii. 343.

stable, only by a jury of twelve. The king and his servants in prosecuting

' A clause in the Nottingham charter, dispensed with the fore-oath or guarantee

1155-65, says that the reeve need not of the prosecutor's good faith.
be answered in any suit for land unless ^ I.e. the assizes of bread and beer.

EXTENT OF THE OFFICERS' POWERS 31

BuryJ — Et quilibet braciator vel braciatrix respondeat unicuique 1293.
de se conquer! volenti, et si convincatur puniatur in forma predicta.
Set de cetero nullus eorum per accusacionem ballivi seu clerici sui
de aliqua assisa fracta occasionetur.

And every brewer or alewife shall answer to any one who
chooses to make complaint, and if the brewer is convicted, he shall
be punished in the form aforesaid. But henceforth none of them
shall be put to answer by the bailiff's or his clerk's accusation con-
cerning any breach of the assize.

Pevensey, cap. 15. — Item cleyment qe nul baillif ne poet home de 1356.
la franchise a serment mettre pour plee de terre, devant court assis, ne
pour autre choses, si ceo ne soit pour plee de roy ou pour profite de la
commune, sauns comandement le roy especyal.

They claim that no bailiff can put a man of the franchise to oath
concerning any plea of land, before the court in session, nor for aught
else, except it be for a king's plea or for the profit of the community,
without special command of the king.^

Extent of the Officers' Povsrers.

Bristol I. cap. 31. — [Major] cognoscat eciam in contencionibus ortis 1240
de marchiis burgagiorum, de gutteriis,^ de supradicto, de contemptori- (^^<'^*)-
bus suorum (sic) summonicionum et de hiis qui non observant pro-
visiones factas in gilda, et in aliis multis que ad ejus jura antiquitus
pertinere solebant.

The mayor shall have cognisance also in disputes that have arisen
concerning boundaries of burgages, or drains, concerning the above-
said,'* and contempt of their summons, and those who do not observe the
orders made in the gild, and in many other matters that of old used to
belong to their rights.

London. Liber Albus, p. 120. — Provisum est et preceptum vice- 1259.
comitibup quod cum alicubi venerint facturi substitucionem ^ aliquam,
quam quidem facere non possunt propter obstructionem seu seruram

^ Pinchbeck Register, Univ. Lib. had no power to prescribe a jury ' ad

Cambridge, Ee, iii. 60, f. 28 b. sacramentum ponere sine warranto,'

' A case of resistance to the * inquest Stat. Marlb. c. 22. Co. 2 Inst. p. 142.
of ofi&ce ' made by a steward is in Select ^ See Vol. I. p. 245.

Pleas in Manorial Courts, Seld. Soc. * The paragraph which precedes

vol. ii. p. 137. Professor Tait tells me treats of the guardianship of orphans,

of an ' Inquisition of office ' held at See below, p. 146.
Preston in the 17th and 18th centuries ^ ? for sequestracionem.

prior to the Easter court-leet. The lord

32 • BOEOUGH CUSTOMS

aliquam, ipsam seruram ex officio suo per visum proborum hominum
vicinorum reserent et suppleant officium suum.

It is provided and commanded to the sheriffs that when they have
to come anywhere to make any sequestration (?) and cannot make it
by reason of an obstruction or lock, they shall undo the bolt in right
of their office by view of lawful men and carry out their office.

1280 Winchester, cap. 31, § 1. — Derechef si nul des vint e quatre truve

(about). j^^i forein dedenz le poier de la vile ke dette li deive, il list a li memes
fere la destresce sus son detur deske il puisse as baillifs venir.

Furthermore if any of the four and twenty [chief citizens] find a
foreigner who owes him a debt within the power of the town, he may
himself make distraint on his debtor until he can come to the bailiffs.

1352 Roinney I. cap. 3. — Lez jures poimt destreiner. — Item use est ke les

jures pount par virtue de lour office prendre destresse et sequestre
fere sanz bailif pur dettes dues a la commune et ci pount lour serjantz
par comondement de les ditz jures.

The next is a translation.

1498. Romney II. cap. 51, § 1.^ — Item it is used that the jurats by noble

virtue of their office may take a distresse and sequestre without the
bayle for dete dew to the 'common, and so may there serjant by the
commandment of the jurats.

1352. . Roinney I. cap. 4. — Jures pount fere attachement. — Item pount les dit

jures fere attachement sanz le bailif sur toutz iceux q'ils trovent
rebels to[u]chont le service nostre seigneur le roy et en toutz autrez
poyntz qi tuchont la mayntenonce et le profit de la commune
franchise de la vile et les dits rebels solom la quantite du trespas
puniser.

The next is a translation.

1498. Romney II. cap. 61, § 2.^ — Ande also may the seyd jurats make

attachement without the bayle upon all of them that they fynde
rebbells touchyng the service of oure lord kyng, and in all other poynts,
the whych touchyth the mandement and the profyte of the comen
franches of the towne. And these same rebbells after the quantite of
here trespas for to be punyshed.

1425. Colchester.^ — Also where that of custume biforen this time hit hath

ben used that sergeants of the town of Colchestre shullen distreyne a

^ So also Lydd, cap. 58. ^ Bed Paper BooJc, ed. Benham, p. 49.

EXTENT OF THE OFFICERS' POWERS 33

man bi his catell for to answere to the party pleyntyf . . .* hit is
ordeyned that no serjaunt from hennys forthward shal have power
ne autorite to distreyne no maner persone withouten power of the
said baiHfs.

Worcester, cap. 70. — Also that non citezein be attached by his body 1467.
as fugitif unto the tyme a citezen or ii. citezens of good name and fame
and without male engyne, mede, or favor, geve the baillies knowlegge,
or on of them, in dew forme therto accordynge.

Fordwich, cap. 73.^ — In nullo casu potest ballivus vel ejus serviens i-^tii
intrare liberum tenementum alicujus liberi ad aliam districtionem
faciendam nisi prius adjudicatum fuerit pariter et consideratum per
majorem et juratos.

In no case can the bailiff or his Serjeant enter the free tenement
of any free man to make any distraint unless it has first been
adjudged by his peers (?) and decided on by the mayor and jurats.

Cap. 74. — Cum autem aliquis liber amerciatus fuerit pro falso
clameo vel pro aliquo malo in placito invento, videlicet in placito
debiti, transgressionis, vel in placito terre, non potest ballivus intrare
ejus tenementum neque distringere eum extra pro predicto amercia-
mento quousque taxatum fuerit per majorem et juratos.

But when any free man is amerced for false claim or for other
wrong found in a plea, to wit in plea of debt, trespass, or of land,
the bailiff cannot enter his tenement or distrain him outside for the
said amercement until it has been taxed by the mayor and jurats.

Dover, cap. 34. — Also they cleyme that the baylle ne hys sirgeant I5th
shall enter into no close of fremen neyther by day ne by nyght ^®°*"''y-
withoute the mayre and the sirjeants, and by assent of the mayre
and jurez.

Fee for Distress,

Bristol, I. cap. 12. — NuUus ballivus capiat vel exigat aliquid de 1240
burgensibus ^ pro distrincione facienda pro debitis suis. ^* °"*^*

No bailiff may take or exact aught from burgesses for making
distraint for their debts.

' A long description of the abuses ^ Sandwich (Boys), p. 450, where

thence arising. the pariter is omitted.

' MS. hurgenses.
VOL. II. D

BOROUGH CUSTOMS

1280

(about).

Winchester, cap. 31, § 2. — E nul de la franchise de la cite ne doit
rien donner as baillifs de la vile pur fere destresce sur ses deturs prives
u estranges, dementers ke il offre wage et plege sur ceus ke la dette li

deivent.

And none of the franchise of the city need pay anything to the
bailiffs of the town for making distress on their debtors, denizen or
foreign, so long as he offers gage and pledge (to prosecute) those who
owe the debts.

15th
century.

Fordwich, cap. 39. — Et debet recipere ballivus pro hujusmodi
districtionibus in aqua ^ captis iiii. d. et amerciamenta ab ipsis qui
convicti fuerint que solvuntur domino abbati. Pro districtionibus
vero in terra captis nichil solebat abbas habere nisi amerciamentum
ab ipso qui convictus fuerit, quia pro ipso amerciamento debet ipse
dominus servare querelam.

And the bailiff ought to receive for such distresses taken by
water 4(i.,^ and the amercements of those who have been convicted
which are paid to 'th^ lord abbot. For distresses taken by land the
abbot ^is not wont to have anything except the amercement from
him who was convicted, because in return for that amercement the
lord abbot * ought to attend to the plea.

1300
(about).

Duty of Borough OflS.cers in guarding Criminals.

Waterford, cap. 56. — De fugientibus ad ecdesiain. D'autre part si
un homme ou une femme soit fui a monster per occision ou pur
larcyn6 ou pur recettement de malvaist^ e sont en le monster, les
baillifs e corouners deivent mander la [un] '^ serjant de faire somoundre
les veisins pur esveiller la eglise qe chis larons ne escapent. E puis
vendront les corouners e demanderent a cheaux qe sont en la eglise
se il voielent venir a la pees le rois, ou se il se voillent tenir al eglise.
E si eaux voillent venir hors, e forsjurer la terre le rois dedens xl.
jours, les corouners les doyvent issi charger : —

Forma sacramenti. — * Coe oiez vous, seignurs corouners, qe joe N.
par noun forjure la terre le roi pur I'occision qe joe ai fet ou pur le
larcyn ou pur le recet qe joe ay rechett^, ou pur altres mals q'il a
fait, iceste terre forjure pur la felonie qe joe ay fet, qe jamais ichi n'y
entroms se il ne soit par conge le rois, ou par counge de ches

^ Vel in terra is added, evidently by
mistake. Sandvv^ich omits the words.

^ Cf. Sandwich (Boys), p. 446, which
gives the bailiff 4^. for distress by water,
for the use of the boat and for the people

who bring the distress on shore.
^ At Sandwich the bailiff.
^ At Sandwich the king.
■' Added from the Dublin version.

DUTY IN GUARDING CRIMINALS 35

ministres si dieu etc' E autre si tost come les couroners cunt che
fait, il metteront leur serment e lour nouns e la date en lour roulle
[de la vile.] ^

Fugitives to the church. — Further, if a man or woman has fled to
a church because of killing or for larceny or for receiving criminals,
and is in the church, the bailiffs and coroners ought to send for a
Serjeant to cause the neighbours to be summoned to watch the
church that these thieves do not escape. And then the coroners
shall come and shall ask those who are in the church if they will
come to the peace of the king or if they wish to keep in the church.
And if within 40 days they will come out and abjure the king's
realm, the coroners ought to charge them thus : —

Form of the oath. — ' This hear you, sirs, coroners, that I, N. by
name, abjure the king's realm, for the killing which I have done, or
for the larceny done, or for the receiving I have done ' (or for other
wrongs which he has done), 'I abjure the realm for the felony which
I have done, so that I will never enter here again unless it be by leave
of the king or by leave of his ministers, so [help me] God etc'
And as soon as the coroners have done this, they shall set the ^ oath
and their names